In letters patent appeal against a Single Judge's decree, the Supreme Court Bench held that ad-hoc service in a selection post governed by merit cum seniority cannot be counted for regular promotion. The appeal against the dismissal of the writ petition was dismissed.
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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
LPA No. 104 of 2010 Date of Decision: 2.8.2017
Er. G.S. Guleria, Superintendent Engineer …..Appellant Versus
State of H.P. and Ors. ….Respondents. Coram:
The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon’ble Mr. Justice Sandeep Sharma, Judge . Whether approved for reporting?1 Yes. For the appellant: Ms. Rashmi Parmar, Advocate. For the Respondents: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 and 2.
Sandeep Sharma, J. (oral)
By way of instant letters patent appeal, a challenge has been laid to judgment dated 14.6.2010, rendered by the learned Single Judge, in CWP (T) No. 11807 of 2008, titled G.S. Guleria v. State of H.P. and Ors., whereby petition having been filed by the petitioner-appellant herein came be dismissed.
2. In nutshell, case of the appellant-petitioner is that while working as Assistant Engineer, he was senior to private respondents but they were wrongly promoted on regular basis as Executive Engineer and Superintending Engineer that too ahead of him. Petitioner-appellant further claimed before the Court below that his ACRs qua the period, he worked as ad-hoc
1 Whether reporters of the local papers may be allowed to see the judgment?
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Executive Engineer were required to be taken into consideration by the review DPC while considering his case for promotion to the post of Executive Engineer against the regular vacancy and as such, department has erred in not taking into account his adhoc service as Executive Engineer for the purpose of promotion and seniority to the regular post of Executive Engineer and thereafter to the post of Superintending Engineer.
3. On the other hand, respondent department contended before the learned Single Judge that the petitioner was promoted on ad-hoc basis on the post of Executive Engineer during 1989, purely on temporary basis. The post of Executive Engineer is a selection post, where criterion for promotion is merit cum seniority. Petitioner was considered for the promotion to the regular post of Executive Engineer from the year, 1988 to 1993 year-wise but because of his low merit, he could not be promoted, as a result of which, private respondents, who were better in merit came to be promoted ahead of the petitioner. DPC considered the ACRs of relevant period of the petitioner as well as other persons, entitled to be promoted to the post of Executive Engineer. Respondents
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specifically stated that instructions dated 16.3.1981 were superseded by instructions dated 17.11.1981 and as such, there was no requirement for department to consider the ACRs of the petitioner for the period when he worked as Executive Engineer on ad-hoc basis.
4. Record reveals that the petitioner could not be promoted on account of his low merit in comparison to the private respondents and there is nothing on record from where, it could be inferred that the stand of the respondent-State was ever refuted by the petitioner by way of filing rejoinder, if any. It also emerge from the record that case of the petitioner was duly considered by the review DPC but he could not be promoted because of his low merit as compared to other persons.
5. This Court after having carefully perused judgment passed by the learned Single Judge sees no illegality and infirmity in the findings returned by the learned Single Judge that the petitioner could not have been given benefit of ad-hoc service as Executive Engineer, especially when his appointment as Executive engineer was purely stop-gap arrangement. It also emerge from the record that the petitioner was appointed as
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Executive Engineer on ad-hoc basis without following due procedure, rather his promotion to the post of Executive Engineer on ad-hoc basis was made by way of administrative order that too in terms of order passed by the learned H.P. State Administrative Tribunal in TA No. 240/86. Since instructions dated 16.3.1981 were superseded by instructions dated 17.11.1981, review DPC rightly did not consider the ACRs, if any, of the petitioner qua the period when he was officiating as Executive Engineer on ad-hoc basis.
6. It is also evident from the record that evaluation of ACRs done by the DPC is as per relevant instructions/procedure and moreover, at no point of time, petitioner objected to evaluation of his ACRs, especially in comparison to the private respondents for the relevant years. Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled R.P. Bhardwaj v. Union of India and Ors ., 2005 (10) SCC 244, relevant para whereof is reproduced as under:-
“3.The regular promotion to the post of Superintending Engineer was made by order dated 20-10-1994. The grievance of the appellant is that he has been shown at Sl. No.56 whereas other officers, namely, respondents 4 to 10 and the seniors who were left out
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earlier, have been shown above the appellant even though the record available for consideration for the two selections, namely, ad hoc promotion and regular promotion, was the same. We may, at this juncture, like to observe that the earlier promotion seems to have been considered and made on ad hoc basis. Learned counsel for the respondents points out that it was done by scrutinizing the records by a Screening Committee whereas the regular selection is by the Committee headed by a member of the Public Service Commission. The consideration and the scrutiny for regular promotion would obviously be on a different footing. The regular selection would not fail merely by the reason that someone who is selected was not given ad hoc promotion earlier. It is submitted that the criterion for selection to the post of Superintending Engineer is merit. That being the position, in our view, no grievance can be made even if some person junior to the appellant may have been selected considering merit, leaving out any other senior officer.”
7. It is undisputed that post of Executive Engineer is a selection post and criteria for promotion is merit cum seniority. It is also not in dispute that case of the petitioner was considered by the review DPC along with other eligible candidates. Since criteria for selection to the post of Executive Engineer is/was merit cum seniority, petitioner cannot be allowed to state that
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his service on ad-hoc basis against the post of Executive Engineer was required to be taken into consideration while considering his case to the post for promotion of Executive Engineer against the regular post. Petitioner has not made available on record material suggestive of the fact that the private respondents were lower in merit than him and as such, they were wrongly promoted ahead of him to the post of Executive Engineer. It is also undisputed that earlier ad-hoc promotion given to the petitioner was by way of administrative order issued by the department and definitely not by following due procedure through DPC. Consideration and scrutiny for regular promotion qua the post of Executive Engineer would obviously be on a different footing and it cannot be said that regular selection would fail merely for the reason that someone who is selected was not given an ad-hoc promotion earlier. Once, it is admitted case of the parties that criteria for the selection to the post of Executive Engineer is merit, no fault if any could be found with the selection of private respondents to the post of Executive Engineer, who ranked higher in merit.
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8. Consequently, in view of the discussion made herein above, we see no reason to interfere with the judgment passed by the learned Single Judge, which is otherwise based upon proper appreciation of material adduced on record by the respective parties. Present appeal fails and dismissed accordingly.
( Sanjay Karol), Acting Chief Justice
2nd August, 2017 ( Sandeep Sharma ), Manjit Judge.
3 issues framed by the court
Whether ad-hoc service as Executive Engineer can be taken into account for promotion to a regular post when the post is a selection post based on merit cum seniority.
Whether the High Court of Himachal Pradesh should interfere with the finding that the petitioner could not have been given benefit of ad-hoc service.
Whether ACRs of an officer on ad-hoc basis are to be considered when promotion criteria are merit cum seniority and the post was selected via administrative order.
Colour shows how this judgement treated each authority
R.P. Bhardwaj v. Union of India and Ors.Referred¶19
R.P. Bhardwaj v. Union of India and Ors., 2005 (10) SCC 244 · Who else cites this
Er. G.S. Guleria
State of H.P.
Sanjay Karol
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
