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Judgment
Ajay Mohan Goel, J
By way of this Letters Patent Appeal, the State has challenged the judgment passed by learned Single Judge in CWP(T) No.2002/2008, titled K.L. Verma Versus State of H.P. and others, decided on 04.07.2011.
The predecessor-in-interest of respondents No.1 (a) and 1 (b) herein, filed O.A. No.2021/2004, which after the abolition of erstwhile learned Himachal Pradesh Administrative Tribunal was transferred to this court and registered as CWP(T) No.2002/2008.
The contention of the original applicant/ petitioner (hereinafter referred to be as the ‘petitioner’) was that he was appointed as Senior Scale Stenographer in the Department of Fisheries, H.P. on 28.01.1974. This post was a feeder category post for promotion to the post of Superintendent Grade-I. Vide Memorandum dated 20.06.1994, the pay of Senior Scale Stenographer was revised as Rs.1800-3200+80 as Special Pay to, Rs.2000-3500+150 as Special Pay. Vide same order the nomenclature of the post of Senior Scale Stenographer, who were attached with the Head of the Department, was changed to Personal Assistant. It was further provided in the Memorandum that revised scale would be fixed as per the provisions of Audit Instructions below FR-22 and incumbents would be entitled to exercise an option as per the provision of FR-23.
The petitioner submitted his option vide letter dated 01.07.1994, accepting the revised pay sale as also re-designation as Personal Assistant.
As no simultaneous amendment was carried out in the Recruitment & Promotion Rules for the post of Superintendent Grade-1, therefore, for the purpose of promotion, the incumbents in terms of the original post held by them in feeder post were being considered by the Department.
The petitioner, after his re-designation from the post of Senior Scale Stenographer to Personal Assistant, made a representation to the Department for carrying out necessary amendments in the Recruitment & Promotion Rules, so that the category of Personal Assistants could be included as feeder category post for promotion to the post of Superintendent Grade-I.
Vide Memorandum dated 22.08.2000, the Department issued a joint Seniority list for promotion to the post of Superintend Grade-I of the feeder category and the name of the petitioner was figuring at serial No.2 of the same.
Against this, one Shri Ram Lal Sharma preferred O.A. No.3943/2000, titled Ram Lal Sharma Versus State of Himachal Pradesh & another. This Original Application was later on dismissed as withdrawn on 12.06.2003.
In the reply, which was filed in the said Original Application by the Department, its stand was that Shri K.L. Verma (petitioner herein) was eligible for promotion to the post of Superintendent Grade-I as re-designation of the post owing to revision of pay scale from time to time did not involve any promotion.
The grievance of the petitioner was that vide letter dated 09.07.2004, the Department ordered that the petitioner be assigned seniority w.e.f. 01.01.1994, as Personal Assistant and he did not fall in the feeder category for promotion to the post of Superintendent Grade-I as per the existing Recruitment & Promotion Rules.
The petitioner challenged this communication, inter alia, on the ground that he was appointed as Senior Scale Stenographer which was a feeder category, to the post of Superintendent Grade-I and earlier vide Memorandum dated 22.08.2000, the petitioner was reflected in the joint seniority list of feeder category members who were eligible for promotion to the post of Superintendent Grade-I. Despite his repeated representations the respondent-Department did not carry out necessary amendments in the Recruitment & Promotion Rules to include the post of Personal Assistant as feeder post and grave injustice was being done to the petitioner by ignoring him for promotion to the post of Superintendent Grade-I as his re-designation as Personal Assistant was not promotion as was evident from the fact that he was also given the benefit of Assured Career Progression Scheme.
The petition was allowed by the learned Single Judge/ in terms of judgment dated 04.07.2011. Learned Single Judge while allowing the petition, observed that in the Original Application filed by Shri Ram Lal Sharma, i.e. O.A. No.3943/2000, the stand taken by the Department in its reply was that the name of the petitioner was there in the combined seniority list of eligible persons for promotion to the post of Superintendent Grade-I, as re-designation of the post owing to revision of pay scale from time to time, did not amount to promotion, either of the original applicant therein, or to the present petitioner whose work and responsibility remained the same notwithstanding the re-designation.
Learned Single Judge held that in view of the specific stand taken by the Department in the Original Application filed by Shri Ram Lal Sharma, the change in the stance of the Department was shocking. Learned Single Judge further observed that the State is supposed to be unbiased and act as a model employer and not to take sides. From the diametrically opposite stand taken by the State it was apparent that either the official of the State were going out of way to help the petitioner when Shri Ram Lal Sharma had filed the Original Application, or they were going out of their way to oppose the petition in the present case. Learned Single Judge held that the State cannot take a stand, of always opposing the petitions and such opposition to every petition was not expected.
On merit, learned Single Judge held that when the petitioner was re-designated as Personal Assistant, the only benefit which he got was that of Special Pay of Rs.150/-.
Learned Single Judge also observed that when the petitioner was asked to exercise his option for being re-designated as Personal Assistant, he was not told that he may loose his chance to be promoted to the next higher post and it would indeed be a travesty of justice in case a senior employee, who is working with the Head of the Department as Personal Assistant, is subsequently told that now he was not eligible to be promoted to the next higher post and person junior to him shall be promoted. Learned Single Judge relied upon the judgment of the Hon’ble Supreme Court in Nirmal Chandra Bhattacharjee and others Versus Union of India and others, 1991 Supp (2) SCC 363, in which Hon’ble Supreme Court was pleased to held as under:-
“3....... No Rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve it in such a manner that it may avoid any loss to one without giving undue advantage to other.”
Learned Single Judge further held that if the interpretation given by the State is accepted it would cause undue loss to the senior employee and would also amount to injustice. Learned Single Judge thereafter held that the Personal Assistant should have been considered to be Senior Scale Stenographer, for the purpose of promotion to the post of Superintendent Grade-I. The direction, which was issued by the learned Single Judge vide judgment dated 04.07.2011, was as under:-
“14. In this case, when the petitioner had filed the original application the DPC had not been held and the learned Tribunal permitted the DPC to be held and directed that the result be kept in a sealed cover. The result of the petitioner will be accordingly opened and in case he is found suitable he shall be granted promotion from the date when respondent No.3 was promoted with all consequential benefits. The needful be done on or before 30th September, 2011 and in case the petitioner is found entitled to promotion he shall be granted all monetary benefits latest by 31st December, 2011 failing which the State shall be liable to pay interest @ 12% p.a.”
Record demonstrates that thereafter CMP No.8559 of 2011 was filed for modification of directions issued in Para-14 of the judgment and the application was disposed of by the learned Single Judge by modifying Para-14 of the judgment in the following terms:-
“ In this case, when the petitioner had filed the original application the DPC had not been held and the learned Tribunal permitted the DPC to be held and directed that the result be kept in a sealed cover. The petitioner was, however, not considered for promotion since according to the State, he did not fall in the feeder category. Therefore, the respondents are directed to convene a review DPC and to consider the petitioner for promotion at the relevant time and in case, he is found suitable, he shall be granted promotion from the date when respondent No.3 was promoted with all consequential reliefs. The needful be done on or before 31st December, 2011 and in case the petitioner is found entitled to promotion he shall be granted all monetary benefits latest by 31st March, 2012 failing which the State shall be liable to pay interest @ 12% p.a.”
Feeling aggrieved by the said judgment passed by learned Single Judge, as it stood modified vide order dated 31.08.2011, the State has filed the present appeal.
Having heard learned Advocate General as well as learned counsel for the respondents herein, we do not find that any interference is warranted in the judgment passed by learned Single Judge.
When in the earlier Original Application filed by Shri Ram Lal Sharma, it was the stand of the Department before the learned Tribunal that the writ petitioner, did not lose his right to be considered for promotion to the post of Superintendent Grade-I after his re-designation, then it is not understood as to how after the said Original Application was dismissed as withdrawn, the State could have somersaulted and taken the opposite stand that the petitioner after his re-designation was not eligible for promotion to the post of Superintendent Grade-I.
During the course of arguments, learned Advocate General could not demonstrate that the re-designation of the writ petitioner as Personal Assistant from the post of Senior Scale Stenographer, amounted to promotion. It was fairly admitted by the State that this re-designation was only on the count that the incumbent was working with the Head of the Department and no benefit accrued to the writ petitioner as a result of this re-designation except that his special pay was enhanced to Rs.150/- from Rs.80/-.
As in the previous litigation it was the stand of the State of Himachal Pradesh that this re-designation did not render the writ petitioner ineligible for promotion to the post of Superintendent Grade-I, and further as there was no challenge to the consideration of the petitioner for promotion to the post of Superintendent Grade-I by any affected party, the subsequent act of the Department of declaring the petitioner to be ineligible for promotion to the post of Superintendent Grade-I was completely arbitrary as was rightly held by learned Single Judge, because consideration of a junior for promotion to the post of Superintendent Grade-I and denial of promotion to a senior, was a totally unjustifiable act of the Department. The findings which have been returned by the learned Single Judge in this regard are correct findings.
In the light of above discussion, as we do not find any merit in the present appeal, the same is dismissed. No order as to costs. Pending applications, if any, also stand disposed of.