Yog Raj v. State of H.P. & Ors.

highlighted in the petition and further canvassed by Mr. Onkar Jairath, learned counsel representing the petitioner is that though petitioner, on account of his having done Diploma in the trade concerned in the year 2010, had become eligible for promotion to the post of Work Inspector in the year 2010, but yet, for no fault of him, he was denied promotion to the post in question for more than six years.

#7. While making this Court peruse documents adduced on record, especially vacancy position of Work Inspector during the year 2011-12 under HPPWD, received through RTI (Annexure P-5), Mr. Onkar Jairath, learned counsel representing the petitioner submitted -6- that though in the year 2013, there were 13 posts of Work Inspector, but yet, no DPC was convened, that too on flimsy grounds that petiitoner does not possess requisite qualification. He submitted that once it is not in dispute that even in the year 2019, petitioner came to be given promotion on the basis of Diploma, obtained by petitioner through IGNOU in the year 2010, there was otherwise no occasion, if any, for respondents to deny promotion to him in the year 2013, on the ground that he did not possess requisite qualification. Mr. Onkar Jairath, learned counsel representing the petitioner further submitted that though in the year 2017, Hon’ble Apex Court in Orissa Lift Irrigation Corporation (supra) clarified that mandate given in aforesaid judgment is with regard to Degrees awarded through distance mode, but there is nothing on record to suggest that prior to passing of aforesaid judgment, there was any rule or notification, issued by the State of Himachal Pradesh, stating therein that Diploma obtained from IGNOU would not be considered for promotion. While making this Court peruse impugned order dated 07.05.2024 (Annexure P-13), passed by Engineer-in-Chief, HPPWD, Shimla, upon the representation filed by the petitioner, pursuant to direction issued by this Court in CWP No.3841 of 2021, titled as Yog Raj Vs. State of H.P. and Others, decided on 27.06.2021, Mr. Onkar Jairath, learned counsel representing the petitioner submitted that as per own -7- case of the respondents, Diploma obtained by the petitioner on

31.08.2010 from IGNOU was recognized, if it is so, there was no occasion for respondents to not consider the petitioner for promotion against the post in question in the year 2013, when more than 13 posts of Work Inspector were available. Mr. Onkar Jairath, learned counsel representing the petitioner invited attention of this Court to judgment dated 16.03.2023, passed by this Court in CWPOA No.7408 of 2020, titled as Prem Lal Vs. State of Himachal Pradesh and Others, to contend that in similar facts and circumstances of the case, this Court, having taken note of the fact that petitioner in that case had done Diploma in Civil Engineering from Janardan Rai Nagar Vidyapeeth, Rajasthan, through distance mode in the year 2012, directed respondents to promote the petitioner against the post of Junior Engineer (Civil) from the date his juniors were promoted to the post in question.

#8. Mr. Onkar Jairath, learned counsel representing the petitioner also placed reliance upon the judgment passed by this Court in CWP No.3993 of 2021, titled as Jitender Singh Rangta and Others Vs. State of Himachal Pradesh and Another, along with connected matter, to state that posts, which earlier could only be filled up in relevant year, can be subsequently filled up following the procedure laid down in Clause 16.29 of Chapter 16 of Handbook on -8- Personnel Matters (Vol.1). He submitted that in afore case, since petitioner was wrongfully denied promotion in the relevant year, this Court directed respondents to hold review DPC for promoting the petitioners therein for promotion to the post of Group Instructor, as per procedure contained in Clause 16.29 of Handbook on Personnel Matters, by preparing year-wise vacancy position and consider them for promotion to the post of Group Instructor, from the date, they had attained eligibility and posts became available.

#9. To the contrary, Mr. B.C. Verma, learned Additional Advocate General, while justifying the impugned action of respondents submitted that petitioner herein cannot claim promotion by way of right, because it is well-settled that employee though has right to be considered for promotion, but he cannot claim promotion, as a matter of right. Mr. B.C. Verma, learned Additional Advocate General further contended that since till the year 2017, there was no clarity with regard to recognition of the Diploma obtained through IGNOU, case of the petitioner for promotion to the post of Work Inspector was rightly not considered. He submitted that Hon’ble Apex Court in Orissa Lift Irrigation Corporation (supra) clarified that Diploma obtained through IGNOU up to the year 2009-10, from distance mode, shall be recognized and thereafter DPC for promotion of the petitioner to the post of Work Inspector was convened in the -9- year 2019, when post became available, however, Mr. B.C. Verma, learned Additional Advocate General, was unable to dispute that in the year 2013, 13 posts of Work Inspector were available. While inviting attention of this Court to judgment dated 18.05.2023 passed by this Court in CWP No.5122 of 2020, titled as Vinyak Kashyap Vs. State of H.P. and Another, Mr. B.C. Verma, learned Additional Advocate General, submitted that prayer made on behalf of the petitioner through instant petition deserves to be dismissed, being barred by delay and laches. He submitted that since petitioner remained silent for more than seven years and at no point of time, raised objection with regard to promotion granted to him in the year 2019, he, being fence-sitter, is not entitled to relief, as prayed for in the instant petition. Mr. B.C. Verma, learned Additional Advocate General, while referring to afore judgment, further argued that promotion cannot be claimed from the date of vacancy, rather, promotion can be claimed from the date, employee concerned was considered for promotion.

#10. Having heard learned counsel representing the parties and perused material available on record, this Court finds that there is no dispute with regard to promotion of the petitioner to the post of Work Inspector in the year 2019. It is also not in dispute that after being promoted to the post of Work Inspector in the year 2019, -10- petitioner approached this Court by way of CWP No.3848 of 2021, praying therein that he be given promotion from due date i.e. from the year 2013, but this Court, instead of returning finding on merit, permitted petitioner to make representation to the competent authority. Pursuant to afore order passed by this Court, petitioner herein filed representation to the department concerned, which ultimately came to be decided vide order dated 07.05.2024 (Annexure P-13). If the afore order is read in its entirety, this Court finds that no plausible explanation has been rendered on record for not granting promotion to the petitioner from due date i.e. from the year 2013. Interestingly, afore order itself suggest that in the year 2010, petitioner was in possession of recognized Diploma awarded by IGNOU, and same was recognized, if it is so, there was no occasion, if any, for respondents to not consider the case of the petitioner for promotion in the year 2013, when admittedly 13 vacancies of Work Inspector were available, as is evident from the information received by the petitioner under RTI Act (Annexure P-5). If the reply filed by the respondents is perused in its entirety, there is no specific denial to the effect that in the year 2013, 13 posts of Work Inspector were available. Immediately, after passing of order dated 07.05.2024 (Annexure P- 13), petitioner approached this Court in the instant proceedings. -11-

#11. Judgment passed by this Court in Vinyak Kashyap and Others (supra), pressed into service by learned Advocate General, cannot be said to have any application in the case at hand for the reason, that in afore case, petitioners, after their having accepted promotion, remained silent for more than four years. After expiry of four years, they filed petition stating therein that they were entitled to promotion from the year 2010, which actually was granted to them in the year 2014. However, in the instant case, petitioner remained vigilant throughout.

#12. True it is that in the year 2010, when for first time, petitioner was ignored for promotion, petitioner had not approached competent Court of law, but it clearly emerges from the pleadings as well as documents adduced on record by the petitioner that at relevant time, he had submitted representation to the department concerned for promotion to the next higher post under Rules, however, same was not paid any heed. It is also true that after being denied promotion in the year 2010, petitioner remained silent till the filing of the petition at hand, but once it is apparent that cause of action to file petition actually accrued to petitioner on account of passing of order dated 07.05.2024 (Annexure P-13), whereby for first time, reasons came to be disclosed to the petitioner for his not being promoted to the post of Work Inspector in the year 2013, this Court is -12- not persuaded to agree with Mr. B.C. Verma, learned Additional Advocate General, that petitioner being fence-sitter, cannot be granted relief, as has been prayed in the instant petition. As has been noticed hereinabove, prior to filing the petition at hand, petitioner had approached competent Court of law in the year 2021 by way of CWP No.3848 of 2021, praying for similar relief, as has been prayed in the present petition, but at that time, he was relegated to authority concerned by way of representation, which ultimately came to be rejected, vide order dated 07.05.2024 (Annexure P-13).

#13. Similarly, findings returned by this Court in Vinyak Kashyap and Others (supra), taking note of various judgments passed by Hon’ble Apex Court with regard to right to consideration of promotion, cannot be made applicable in the case, because such observations have been made in totally different context. Since in afore case, petitioner approached four years after his promotion, this Court, having taken note of the fact that petitioner remained silent spectator, observed that promotion cannot be claimed as a matter of right, rather, employee has a right of consideration.

#14. Since steps, if any, for convening DPC was to be taken by the department and in that regard, no action, if any, was to be taken by the employee, omission, if any, on the part of the respondents to not convene DPC in the year 2013 for considering the -13- petitioner for promotion to the post of Work Inspector, cannot be a reason for this Court to reject the prayer made on behalf of the petitioner. Since in the year 2013, 13 posts of Work Inspector were available, coupled with the fact that department was fully aware of the fact that Diploma awarded by IGNOU is recognized, there was no prohibition or impediment, if any, for department to convene DPC in the year 2013 itself, but for no cogent and convincing reason, department waited till the year 2019, when, on the basis of Diploma issued by IGNOU, which at one point of time was not considered to be valid for promotion, respondents proceeded to grant promotion to the petitioner against the post of Work Inspector but w.e.f. the year 2019.

#15. Though much stress came to be laid on the judgment passed by Hon’ble Apex Court in Orissa Lift Irrigation Corporation (supra), but if the aforesaid judgment is read in its entirety, it clearly reveals that Hon’ble Apex Court clarified that Diploma granted by IGNOU in the year 2009-10 shall be recognized for promotion, but prior to passing of the judgment, no document/instructions, ever came to be issued by the Government, specifically clarifying therein that Diploma issued/granted by IGNOU, through distance mode, shall not be recognized for promotion. Otherwise also, R&P Rules for the post in question, if perused in its entirety, nowhere speaks about Diploma, if any, awarded through distance mode, rather, specific expression -14- has been used that Diploma should be awarded by recognized University. Once it is not in dispute that IGNOU was recognized University, Diploma awarded by it through distance mode, otherwise could not have been ignored by the respondents in the year 2013.

#16. However, after having carefully perused judgment rendered by Hon'ble Apex Court in Orissa Lift Irrigation Corporation (supra), this Court finds merit in the contention of Mr. Onkar Jairath, learned counsel representing the petitioner that in aforesaid judgment, Hon'ble Apex Court has observed nothing with regard to Diplomas, rather that judgment specifically deals with the degrees, if any, awarded by deemed Universities through distance mode. At this stage, Mr. B.C. Verma, learned Additional Advocate General, while fairly admitting that finding given by the Hon’ble Apex Court is with regard to degrees, vehemently argued that analogy would remain same, especially when Hon'ble Apex Court stated that degrees obtained through distance mode shall not be taken as eligibility for appointment and promotion. However, this Court is not impressed with aforesaid contention of learned Additional Advocate General for the reason that in Para No.3 of the afore judgment, Hon'ble Apex Court, while disposing of M.A No.38 of 2018 in C.A No.17907 of 2017, has clarified that paragraphs No.34 and 46 of the judgment pertains to validity of degrees in engineering conferred by -15- the deemed to be Universities through distance education mode and this Court was not called upon to consider validity of diplomas conferred by such deemed to be Universities. In the aforesaid paras, Hon'ble Apex Court clearly ruled that validity of courses leading to Diplomas was not the subject matter of the judgment, meaning thereby ruling given by the Hon'ble Apex Court strictly pertains to degrees awarded by the deemed Universities through distance education mode and as such, same could not be made applicable in the cases of Diplomas, if any, obtained through distance mode. It would be apt to take note of following paras of aforesaid judgment herein below:- “1. M.A. No. 38 of 2018 in C.A. No.17907/2017 The applicant, IASE, Deemed to be University seeks clarification that the judgment applied only to courses leading to degrees in Engineering awarded by Deemed to be Universities through distance education mode and that diploma courses are not covered by the judgment. Mr. M.L. Verma, learned Senior Advocate invited our attention to the advertisement issued by AICTE. His submissions on the issue in question are on lines similar to the submissions advanced by Mr. Dhruv Mehta, learned Senior Advocate.

#2. We also heard Mr. Maninder Singh, learned Additional Solicitor General who appeared on behalf of AICTE.

#3. It is true, as is evident from paragraphs 34 and 46 of the judgment that the controversy in the present case pertained to validity of degrees in Engineering conferred by the Deemed to be Universities through distance education mode and this Court was not called upon to consider validity of diplomas conferred by such Deemed to be Universities. However the advertisement issued by AICTE covers diploma courses as well. We therefore accept the -16- submissions advanced by Mr. Dhruv Mehta and Mr. M.L. Verma, learned Senior Advocates and clarify that validity of such courses leading to diplomas was not the subject matter of the judgment.

#4. At the same time, courses leading to award of degrees, whether graduate or post graduate degrees, was certainly the matter in issue. We therefore reject the submission of Mr. Kapil Sibal, learned Senior Advocate and do not find any infirmity in the understanding of and the advertisement issued by AICTE.

#5. Mr. Anupam Lal Das, learned Advocate is right that JRN, AAI and IASE had no expertise in the field or subjects of Engineering and the status of Deemed Universities conferred on them was not because of their excellence in the field of Engineering. As against these three Deemed to be Universities, the case of VMRF stood on a better footing as its field of activity and excellence also included subjects in Engineering. However that was not the only basis of the judgment. The facts still remain that conferral of degrees in Engineering through distance education mode was never approved in principle by AICTE and the Study Centres were never inspected or approved. We therefore reject the submission of Mr. Anupam Lal Das, learned Advocate.

#6. If award of degrees in Engineering through distance education mode by Deemed to be Universities, as a concept or principle was not accepted by AICTE, it is immaterial whether the Study Centre in question was ITM International. Said Institution was not by itself authorized to award degrees in Engineering on its own nor was it affiliated to any State or Central University at the relevant time. The courses conducted by said institution led to award of degrees of AAI, which had no expertise or excellence in the field of Engineering and through distance education mode. We therefore reject the submission advanced by Ms. Meenakshi Arora, learned Senior Advocate.

#7. We now turn to the general submission advanced by all the learned counsel that the candidates after securing the degrees in Engineering through distance education mode, have advanced in career and that their ability was tested at various levels and as such -17- requirement of passing the examination in terms of the judgment be dispensed with in their case. We cannot make any such exception. The infirmity in their degrees is basic and fundamental and cannot be wished away. At the same time, we find some force in their submission that if the suspension of their degrees and all advantages were to apply as indicated in the judgment, the concerned candidates may lose their jobs and even if they were to successfully pass the test, restoration of their jobs and present position would pose some difficulty. We, therefore, as a one-time relaxation in favour of those candidates who were enrolled during the academic years 2001- 2005 and who, in terms of the judgment, are eligible to appear at the test to be conducted by AICTE, direct:- a). All such candidates, who wish to appear at the forthcoming test to be conducted by AICTE in May-June 2018 and who exercise option to appear at the test in terms of the judgment, can retain the degrees in question and all the advantages flowing therefrom till one month after the declaration of the result of such test or till

31.07.2018 whichever is earlier. b) This facility is given as one-time exception so that those who have the ability and can pass the test in the first attempt itself, should not be put to inconvenience. If the candidates pass in such first attempt, they would be entitled to retain all the advantages. But if they fail or choose not to appear, the directions in the judgment shall apply, in that the degrees and all advantages shall stand suspended and withdrawn. At the cost of repetition, it is made clear that no more such chances or exceptions will be given or made. They will undoubtedly be entitled to appear on the second occasion in terms of the judgment but this exception shall not apply for such second attempt. c). We direct AICTE to conduct the test in May-June 2018 and declare the result well in time, in terms of our directions in the judgment and this Order. AICTE shall however extend the time to exercise the option to appear at the test suitably. -18-

#8. Except for the directions given in the preceding paragraph i.e. paragraph 7 and the clarification as regards courses leading to award of diplomas as mentioned hereinabove, we reject all the other submissions.”

#17. Careful perusal of aforesaid judgment clearly reveals that findings in the aforesaid judgment directly relate to degrees conferred by deemed Universities through distance mode and Diplomas obtained through distance education mode have been specifically excluded by Hon'ble Apex Court while returning findings, as have been taken note hereinabove.

#18. In view of aforesaid specific clarification rendered on record by Hon'ble Apex Court with regard to Diplomas obtained through education mode, ground set up by the respondents to reject the case of the petitioner for promotion is not tenable and as such, deserves outright rejection. Moreover, if the judgment rendered by Hon'ble Apex Court, is read in its entirety, it clearly reveals that Hon'ble Apex Court despite holding that degrees conferred by deemed Universities through distance education mode is not the qualification, granted one time relaxation in that case, so that persons already working are not put to hardship. In the instant case, petitioner has been serving in the Department for more than 32 years and till date, despite his being fully eligible, he was not considered for promotion against the post of Work Inspector in the year 2013. Leaving everything aside, once it is not in dispute that respondents -19- ultimately gave promotion to petitioner in the year 2019 on the basis of same Diploma, which was granted by IGNOU, same could not have been otherwise ignored in the year 2013, when admittedly 13 posts of Work Inspector were available, against which petitioner could be promoted.

#19. Though at this stage, Mr. B.C. Verma, learned Additional Advocate General, attempted to argue that in any eventuality, petitioner could not be considered for promotion in the year 2013, against the vacancy, if any, for the year 2013, rather promotion could only be given from the prospective date, but this Court is not persuaded to agree with aforesaid submission of Mr. B.C. Verma, learned Additional Advocate General. In nutshell, case of the petitioner is that since he was eligible for promotion against the post in question in the year 2013 and at relevant time, 13 posts were also available, he should have been promoted from that date, but definitely not from the date of convening of DPC. At this stage, it would be apt to take note of clause 16.29, which reads as under: “16.29 Cases where the DPC could not be held any year even though some vacancies arose during that year (a) Preparation of year wise select lists. It has been decided that where the DPC could not be held in any year even though some vacancies arose during that year, the DPC that meets thereafter should follow the following procedure:- (i) Determine the actual number of regular vacancies that arose in each of the previous year/years immediately -20- preceding and the actual number of regular vacancies proposed to be filled in the current year separately. (ii) Consider in respect of each year those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards. (iii) Prepare a consolidated select list separately for each of the years starting with the earliest year onwards including the names of officers of reserved categories. (iv) Prepare a consolidated select list by placing the select list of the earlier year above the one for the next and so on. The above decision is operative with effect from 23rd June, 1984, i.e. the date on which the instructions were issued. It is clarified that past cases already decided will not be reopened. (H.P. Government Department of Personnel letter No. PER(AP-II) A (1)-1/80-III, dated 23rd June, 1984-Annexure -16.24).”

#20. Careful perusal of aforesaid instructions reveals that where DPC could not be held in any particular year despite there being availability of vacancies, promotion would be granted to the eligible candidates after determining the actual number of regular vacancies that arose in each of the previous year/years immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately. As per aforesaid procedure, Departmental Promotion Committee would consider vacancies of each year and shall prepare a consolidated list separately for each of the year starting from the earliest year onward including the names of the officers of the reserved categories. -21-

#21. Since specific plea raised by the petitioner with regard to availability of 13 posts in the year 2013 has not been denied by the respondents in their reply, Mr. Onkar Jairath, learned counsel representing the petitioner, is right in contending that petitioner, ought to have been considered for promotion against the vacancy in the year 2013. This Court also deems it necessary to take note of relevant part of 16.6 and 16.7 of Handbooks on Personnel Matters (Vol.I), which provides specific guidance on the subject of timely convening of Departmental Promotion Committee and the duty of the department to ensure that no eligible candidate is deprived of promotion, which reads as under: “16.6 Frequency at which D.P.C. should meet The D.P.C. should be convened at regular annual intervals to draw panels which could be utilized for making promotions against the vacancies occurring during the course of a year. It has been observed that Departments do not convene meetings of the D.P.Cs. annually for various reasons even though eligible officers of the lower grade were available and the vacanci.es in the higher grade were also available for their promotion. This is often due to non- finalization of the seniority list of officers at the lower grade which forms the field of consideration. Sometimes, meetings of the D.P.C. are also not convened annually under the impression that a panel, prepared by a D. P. C. for filling "Selection" posts could be kept operative for a period of one year and six months and that, therefore, action to convene the next meeting of the Departmental promotion Committee need be initiated only after the expiry of that period. As delay in convening the D.P.C, meeting results not only in financial loss to the concerned officers due to delay in their promotion to the next higher grade but also affects them adversely -22- in their future career in as much as their promotion to the next higher grade is also delayed, it is necessary that the D.P.C. meeting should be convened at regular intervals as indicated above. The requirement of convening annual meetings of the DPC should only be dispensed with after a certificate is issued by the respective appointing authority to the effect that there no vacancies are to be filled up by way of promotion or no officers/officials are due/eligible for confirmation during the year, in question.

16.7 Time-schedule for holding meetings of D.P.C. The instructions contained in H.P. Govt. Deptt. of Personnel letter No. 1-13 /73-DP (A-II) dated 27-4-1993 (Annexure 16.18) provide that the time schedule for hording of regular Departmental Promotion Committee will be during the month of April-May. The subsequent instructions issued vide letter. No. 1-13/75-DP (AP-II) dared 14-2-1984 (Annexure 16.22) provided that meeting of the Departmental Promotion Committee may be held once a year in the month of April every year as far as possible. The latest instructions contained in letter No. 1-13/75-DP(A-II) dated 6-9-1984 and letter No. Per(AP-II)B(3)-1/94 dated 16-11-1994 (Annexures 16.25 and

16.55) provide that meetings of the Departmental Promotion Committees for making promotions should be held during the first quarter of the financial year as far as possible for all the existing and anticipated vacancies. For unanticipated vacancies, fresh meetings of the Departmental Promotion Committees for making promotions should be held during the course of the year within three months from the date of creation of the posts. In so far as the meetings of the DPC for promotion to the posts falling within the purview of the Himachal Pradesh Public Service Commission are concerned, the time schedule for such meetings may be spread over the month from April to December every year. Particulars of vacancies which are likely to occur during the next twelve months may also be furnished to the Commission by the end of the month of January every year so that the time schedule for holding meetings of the DPCs in respect of each department could be determined by the Commission keeping in view the, existing vacancies and the -23- vacancies likely to occur in the Department. This will enable the Commission to arrange meetings of the DPC well in time.”

#22. In the case at hand, though petitioner was eligible for promotion in the year 2013, but yet department failed to convene DPC for seven years, despite there being existence of clear vacancies, thereby violating not only the statutory rules, but also the principles enshrined in the Handbook on Personnel Matters, which are binding administrative instructions having the force of law in service matter. It is well established principle in service jurisprudence that once a vacancy arises in the promotional post, it becomes incumbent upon the appointing authority to take expeditious steps to convene the DPC for considering all eligible candidates.

#23. The failure of the respondent-department in convening timely DPCs has directly led to the deprivation of the petitioner’s promotion, despite his continued eligibility under both the 1997 and 2008 R&P Rules. Such dereliction on the part of the authorities not only constitutes administrative negligence, but also defeats the legitimate expectation of the petitioner. Reliance in this regard is placed upon judgment passed by Hon’ble Apex Court in Union of India Vs. Hemraj Singh Chauhan, 2010 (4) SCC 290, wherein it has been categorically held that incumbents shall not suffer due to the slackness or lethargic attitude of the administration and that delay in holding DPCs resulting in loss of promotional opportunity to eligible -24- employees, amounts to grave injustice. Relevant part of afore judgment, reads as under: “38. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.

#39. In The Manager, Government Branch Press and Anr. v. D.B. Belliappa - (1979) 1 SCC 477, a three judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomised under Articles 14 and 16 is "fairness founded on reason" (See para 24 page 486).

#40. It is, therefore, clear that legitimate expectations of the respondents of being considered for promotion has been defeated by the acts of the Government and if not of the Central Government, certainly the unreasonable in-action on the part of the Government of State of U.P. stood in the way of the respondents' chances of promotion from being fairly considered when it is due for such consideration and delay has made them ineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy.”

#24. Reliance placed by Mr. B.C. Verma, learned Advocate General, upon the judgment dated 17.05.2014 passed by Division Bench of this Court in CWP No.9271 of 2013, titled as Prakash Chand Vs. State of H.P. and Another, along with other connected matter, is wholly misplaced. If the aforesaid judgment is read in its entirety, it clearly provides that normal rule of law is that nobody can be promoted from a retrospective effect, except when there exist -25- facts, which necessitate so, or there is a rule, which permits so. In the case at hand, as has been discussed in detail, petitioner is entitled to promotion from retrospective date, because though he had become eligible for promotion in the year 2013, but yet despite there being availability of 13 vacancies, respondents for no cogent and convincing reason, failed to convene DPC, till the year 2019. It has been categorically ruled in aforesaid judgment that, in case due to administrative reason, DPC could not be held in a year, then the person cannot claim retrospective promotion in the absence of malafides, since mala fide taints every act requiring a person wronged to be placed in the position but for the malafides or tainted exercise of power. There cannot be any quarrel with aforesaid proposition of law laid down by Divison Bench of this Court, rather, same is required to be respectfully followed. However, in the instant case, no cogent and convincing reasons have been placed on record, for not convening the DPC, save and except that clarification for first time with regard to recognition of diploma awarded by IGNOU through distance mode, came to be issued pursuant to judgment passed by Hon’ble Apex Court in the year 2017 in Orissa Lift Irrigation Corporation (supra), which contention raised by respondent-State, deserves rejection, for the reason that prior to passing of the aforesaid judgment, there were no instructions or rules, if any, of respondent-State specifically -26- prescribing therein that Diploma awarded by IGNOU through distance mode shall not be recognized, rather, R&P Rules, if perused in its entirety for the post in question, talks about the Diploma issued by recognized University. It is none of the case of the respondents that IGNOU is not a recognized University, rather impugned order passed by competent authority itself suggests that Diploma awarded in favour of the petitioner by IGNOU was recognized in the year 2010, if it is so, there was otherwise no occasion, if any, for respondents to not to convene DPC in the year 2013. Moreover, in the case before the Hon’ble Apex Court, there were no rules, which mandated convening of DPC twice in a year, however, in the instant case, Clause 16.6 and

16.7 of Handbook on Personnel Matter, as taken note hereinabove, specifically provides for convening DPC twice in a year, so that rightful claim for person, entitled for promotion, is not marred on account of non-convening of DPC.

#25. At this juncture, Mr. B.C. Verma, learned Additional Advocate General has also placed reliance upon judgment passed by Hon’ble Apex Court in Union of India and Others Vs. N.C. Murali and Others, (2017) 13 SCC 575, to contend that unless there is a specific rule, entitling applicants to receive promotion from the date of occurrence of vacancy, right of promotion does not crystallize on the date of vacancy and promotion is to be extended, on the date it is -27- actually effected, however, after having perused aforesaid judgment in its entirety, this Court finds no application of the same in the case at hand. In aforesaid judgment, precisely, it has been held that the right of promotion does not crystallise on the date of occurrence of vacancy and the promotion is to be extended on the date when it is actually effected, unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy. As noted hereinabove, in the State of Himachal Pradesh, Clauses 16.6 and

16.7 of the Handbook on Personnel Matters (Volume I) provide for the convening of the Departmental Promotion Committee twice in a year. The very purpose and object of afore Clause is that vacancy, if any, in relevant year is filled in the same year, so that person eligible in that particular year, is not subsequently deprived of promotion, on account of the fact that for some reasons, DPC could not be convened earlier.

#26. Mr. B.C. Verma, learned Advocate General, further placed reliance upon judgment passed by Coordinate Bench of this Court in Ramesh Kumar Thakur Vs. State of H.P. and Another, CWP No.3256 of 2025, decided on 09.04.2025, to state that there is no absolute right to promotion itself. Promotion become effective upon assumption of duties on promotional post and not on date of occurrence of vacancy or recommendation for promotion. However, aforesaid judgment has no application in the case at hand for the -28- reason that petitioner in that case before approaching competent Court of law stood superannuated, however, in the instant case, petitioner was firstly denied promotion in the year 2013, despite there being availability of vacancy on the ground that he does not possess requisite qualification, but subsequently in the year 2019, on the basis of similar qualification, he was granted promotion. Moreover, petitioner is still in service and in case prayer made on his behalf for considering his case from retrospective date is not considered, he would continue to suffer, till his superannuation.

#27. Consequently, in view of the above, this Court finds merit in the present petition and accordingly the same is allowed and impugned order dated 07.05.2024 (Annexure P-13) is quashed and set-aside. Respondents are directed to consider the case of the petitioner for promotion to the post of Work Inspector from due date, i.e. from the year 2013, by convening Review DPC, by following due procedure, as laid down in Clause 16.29 of Chapter 16 of Handbook on Personnel Matters (Vol.1). Since petitioner has not worked against the post of Work Inspector w.e.f 2013 to 2019, he shall be entitled to notional benefit only along with seniority, but not monetary benefit. Since petitioner has been fighting for his rightful claim for quite considerable time, this Court hopes and trusts that needful shall be -29- done by the respondents expeditiously, preferably, within a period of two months. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. p` May 29, 2025 (Rajeev Raturi) (Sandeep Sharma), Judge