1. "Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down” (Justice Brennan).
2. The aforesaid observations are fully applicable to the instant case as the petitioner has un-necessarily been dragged into unwarranted and otherwise avoidable litigation.
3. This writ petition has been filed for grant of the following substantive reliefs:
“(i) That the respondent Board may be directed to consider the petitioner for promotion to the post of Joint Director(Legal) from the date when the respondent No.2 was promoted to the said post vide order dated 17.5.2010, Annexure P-5, with all consequential benefits;
(ii) That if this Hon’ble Court comes to the conclusion that it is necessary to quash the promotion of respondent No.2 in order to consider the claim of petitioner for promotion to the post in question, in that event his promotion order dated 17.5.2010, Annexure P-5 may be quashed and set aside and respondent may be directed to consider the petitioner for such promotion from the date of promotion of respondent No.2, with all consequential benefits;
(iii) That the petitioner may also be held entitled to arrears of salary and consequential retiral benefits with interest at market rate on delayed payment.”
4. On 10.07.1979, the petitioner was appointed as Legal Assistant by way of direct recruitment in BSL Project, Sundernagar, under Beas Construction Board (in short ‘BCB’). However, on completion of works of the ‘BCB’, the services of the petitioner were thereafter taken over by the Bhakra Beas Management Board (in short ‘BBMB’) with effect from 31.08.1984. On 29.05.1986, the respondent-Board conducted interviews for the post of Assistant Personal Officer (Legal) in which the petitioner was selected and appointed as such on adhoc basis. Subsequently, vide order dated 03.10.1996, the petitioner was promoted on the upgraded post of Personal Officer(Legal) on adhoc basis. Thereafter, on 31.03.1998, the post of Personal Officer(Legal) was upgraded and was redesignated as Senior Personal Officer (Legal) and subsequently in the year 2009, the post of Senior Personal Officer (Legal) was further re-designated as Senior Law Officer. On 17.05.2010, the post of Senior Law Officer in the administration of Chief Engineer, BBMB, Nangal was upgraded to that of Joint Director/Personal-cum-Legal with immediate effect and vide another Office Order dated 17.05.2010, respondent No.2 was promoted on the said post.
5. The instant petition has been filed by the petitioner, firstly, on the ground that respondent No.2 could not have been considered for promotion in preference to regular employees i.e. the petitioner. Secondly, the petitioner being Senior most Law Officer was required to be considered before considering and promoting respondent No.2, who was junior to him.
6. Respondent No.1 has contested the petition by filing reply wherein it is contended that since promotion of respondent No.2 is purely on adhoc basis, therefore, the petitioner has got no legal and vested rights in claiming such promotion. Further, it has been claimed that since respondent No.2 has already been inducted in the respondent-Board against the share quota posts and being an employee of the partner State Electricity Board, he is senior most Officer against the share quota posts of the partner State. However, the claim of the petitioner being senior to respondent No.2 has not been denied.
7. Respondent No.2 has also contested the petition by filing separate reply wherein similar defence to the one taken by respondent No.1 has been taken. Here, again the seniority of the petitioner has not been denied.
I have heard the learned counsel for the parties and also gone through the records of the case.
8. At the outset, it needs to be observed that there are admittedly no statutory rules governing the field for promotion to the post of Joint Director/Personal-cum-Legal. It is more than settled that in absence of any other valid rule, promotions are to be made on the general well accepted principle of seniority-cum-merit. (Refer: Hari Datt Kainthla and another vs. State of H.P and others, AIR 1980 SC 1426). This principle has to be followed even while making promotions on adhoc basis.
9. Equally settled is the proposition that in absence of any statutory rules for determining inter se seniority, the general principle of determination of seniority is that it is to be reckoned from the period of initial appointment i.e. continuous period/length of service should be taken into consideration.
10. Counted in whatsoever manner, it is not in dispute that the petitioner admittedly is senior to respondent No.2 and this fact is not even disputed by either of the respondents. Then why still, respondent No.2, who was not even regular employee of respondent No.1 and was admittedly junior to the petitioner, was promoted, is not at all forthcoming. Save and except, a feeble attempt was made by learned counsel for the respondents to canvass that such promotion was against share quota as respondent No.2 was the employee of partner Punjab State Electricity Board. But, there is no material whatsoever to support, much less justify this contention.
11. The instant case reflects a sordid, despotic and nepotic function of respondent No.1, who in the most brazen and blatant manner has flouted and defied the mandate of law by indulging in favourtism in appointing respondent No.2 while totally ignoring the case of the petitioner, who was not only senior to respondent No.2, but was also a regular employee of the respondent-Board, as compared to respondent No.2, who was simply on deputation.
12. It is settled proposition of law that regular employees will have first preferential right for promotion over non-regular employees.
13. In Jai Ram Sharma vs. Jammu Development Authority (1996) 9 SCC 214, the Hon’ble Supreme Court held as under:-
“4. Counter-affidavit has been filed by the respondent contending that appellant's seniority was considered with effect from the date when the vacancy had arisen after the retirement of the 5th respondent. The above action is obviously illegal and an arm twist to nepotism. When the appellant was a regular candidate as Office Superintendent, he was entitled to be considered in preference to the deputationist, who is not a member of the service as on that date. He was wrongly denied of his legitimate right to be considered for appointment on the date when the 5th respondent was appointed. It is, therefore, directed that the appellant must be considered to have been regularly appointed with effect from the date on which the 5th respondent was promoted as PRO and in terms of the order passed by this Court. His entitlement would be considered according to the rules within a period of three months from the date of the receipt of the order.”
14. In Bharat Krishan Sahni vs. Bhakra Beas Management Board, (2001) 2 SCT 804: SLR 2001(4) 540 the Hon’ble Punjab & Haryana High Court held as under:
“12. I am not in a position to subscribe to the argument of learned counsel for the respondents. The staff which is sent to the Board in order to work, in fact, is a staff which has been sent there on transfer. The control of such transferee staff is still with the parent Department. They are not the employees of the Board. They are the employees of the respective Governments. That staff is not on deputation even as they do not get any deputation allowance. A partner State sends its staff in order to carry out the work of the project. So we can say that the staff of the Board comes from different sources and the control of that staff is with their respective States. Since they are not the regular employees of the Board, so they cannot rub their shoulders with the regular staff, which was appointed by the Board for the working of the Board.”
15. In Anil Kumar vs. BBMB and another, CWP No. 770 of 1996, decided on 11.02.2010, the Hon’ble Punjab and Haryana High Court held as under:
“12. I have given thoughtful consideration to the submissions made on behalf of counsel for the parties. In view of the law declared by the Hon'ble Supreme Court in Jai Ram Sharma's case (supra) and in the case of Bharat Krishan Sahni (supra), no joint seniority could be made by the respondent Board of the State Govt. employees working in BBMB on deputation or on transfer and the BBMB regular employees. It is also settled law that deputationists cannot be considered in preference to regular employees for promotion. Therefore, the Punjab Govt. memo dated 23.4.1992 relied upon by the counsel for the respondent Board would be of no help. Apparently, the petitioner has been discriminated inasmuch as the first available post ought to have been filled up by eligible available regular employee of the Board and then the remaining posts could be filled up from State Govt. employees working in BBMB because preference in promotion was required to be given to BBMB regular employee and not to the State Govt. employees. The petitioner is thus entitled for promotion on preference over deputationists/transferees from State Governments against first available post on his having become eligible for promotion on 27.7.1995.
13. Regarding the non framing of Rules by BBMB with respect to Class I and Class II posts it would suffice to observe that the observations of Hon'ble Supreme Court as made in case of Sohan Lal and others (Annexure P-1), ought to have been adhered fully by framing regulations for entire service whereas the BBMB has framed regulations only concerning Class III and Class IV posts. I find force in the contention of counsel for the petitioner that the higher authorities in BBMB who belong to State Govt. are intentionally not framing such regulations so as to deny this benefit to the regular employees like petitioner in the Board. It is hoped that the BBMB would seriously consider framing of regulations for Class I and Class II posts in terms of the decision of Hon'ble Supreme Court in Sohan Lal's case (supra) so that there is no discrimination amongst the various categories of employees working in BBMB.”
16. To say the least, respondent No.1 which is a ‘State’ within the meaning of Article 12 of the Constitution of India has conducted in itself of untrustworthiness and like a belligerent litigant has dragged the petitioner to an un-necessary and otherwise avoidable litigation. Instead of gracefully accepting its mistake, respondent No.1 could not resist the temptation of litigation and has fought this legal battle as if it was a war. The battle otherwise is “uneven” as on one side is a public institution whereas on the other side is a private individual.
17. As such, this Court has no hesitation to conclude that public money has been wasted because of adamant behaviour of officer of respondent No.1 due to litigious attitude adopted by this Officer in pursuing the instant litigation before this Court and trying to justify the promotion of respondent No.2 which otherwise is not at all justifiable.
18. Admittedly, the case of the petitioner has not at all been considered by the respondent-Board for promotion. Once that be so, then the petitioner’s fundamental right under Articles 14 and 16 stands breached. It is settled proposition of law that though an employee does not have a fundamental right for promotion, however, he has a fundamental right for being considered for promotion.
19. In Ajit Singh and others (II) vs. State of Punjab and others (1999) 7 SCC 209, the Hon’ble Supreme Court held as under:
“22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said sub- clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equality opportunity" in matters of employment and appointment to any office under the State. The word 'employment' being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.
"Promotion" based on equal opportunity and 'seniority' attached to such promotion are facets of fundamental right under Article 16(1):
23. Where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in Article 16(1). For example, if the promotion is by rule of `seniority-cumsuitability', the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. (There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the senior most person at the basic level is to be considered first and then the others in the line of seniority). That is how right to be considered for promotion and the ‘seniority' attached to such promotion become important facets of the fundamental right guaranteed in Article 16(1).
Right to be considered for promotion is not a mere statutory right:
24. The question is as to whether the right to be considered for promotion is a mere statutory right or a fundamental right.
25. Learned senior counsel for the general candidates submitted that in Ashok Kumar Gupta Vs. State of U.P. (1997) 5 SCC 201), it has been laid down that the right to promotion is only a "statutory right" while the rights covered by Articles 16(4) and 16(4A) are "fundamental rights". Such a view has also been expressed in Jagdish Lal and some other latter cases where these cases have been followed. Counsel submitted that this was not the correct constitutional position.
26. In this connection our attention has been invited to para 43 of Ashok Kumar Gupta (supra). It reads as follows:- (SCC p. 239)
"43. It would thus be clear that right to promotion is a statutory right. It is not a fundamental right. The right to promotion to a post or class of posts depends upon the operation of the conditions of service. Article 16(4) read with Articles 16(1) and 14 guarantees a right to promotion to Dalits and Tribes as a fundamental right where they do not have adequate representation consistently with the efficiency of administration... before expiry thereof (i.e. 5 years rule), Article 16(4) has come into force from 17.6.1995. Therefore, the right to promotion continues as a constitutionally guaranteed fundamental right."
A similar view was expressed in Jagdish Lal versus State of Haryana, (1997) 6 SCC 538 and followed in some latter cases. In the above passage, it was laid down that promotion was a statutory right and that Articles 16(4) and 16(4A) conferred fundamental rights.
27. In our opinion, the above view expressed in Ashok Kumar Gupta, and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guaranteed to employees for being "considered" for promotion according to relevant rules of recruitment by promotion(i.e. whether on basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta (1997) 5 SCC 201: 1997 SCC(L&S) 1299 right from 1950.”
20. The Hon’ble Supreme Court in Badrinath vs. Government of Tamil Nadu and others (2000) 8 SCC 395, held as under:
“47. Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. This aspect is a matter of considerable importance in service jurisprudence as it deals with 'fairness' in the matter of consideration for promotion under Article 16. We shall therefore refer to the current legal position.”
21. The Hon’ble Supreme Court in Union of India and others vs. Sangram Keshari Nayak (2007) 6 SCC 704, held as under:
“11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration…..”
22. The Hon’ble Supreme Court in Hardev Singh vs. Union of India and another, (2011) 10 SCC 121, held as under:
“17. It cannot be disputed that no employee has a right to get promotion; so the appellant had no right to get promotion to the rank of Lieutenant General but he had a right to be considered for promotion to the rank of Lieutenant General and if as per the prevailing policy, he was eligible to be promoted to the said rank, he ought to have been considered. In the instant case, there is no dispute to the fact that the appellant's case was duly considered by the SSB for his promotion to the rank of Lieutenant General.”
23. In Major General H.M. Singh, VSM vs. Union of India and another, (2014) 3 SCC 670, the Hon’ble Supreme Court held as under:
“28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition, that the respondents were desirous of filling the vacancy of Lieutenant General, when it became available on 1.1.2007. The factual position….. he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view, that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential order dated 29.2.2008, and thereafter, by a further Presidential order dated 30.5.2008…...”
30. Besides the above, we are also of the considered view, that consideration of the promotional claim of the senior most eligible officer, would also fall in the parameters of the rule providing for extension, if the exigencies of service so require. It would be a sad day if the armed forces decline to give effect to the legitimate expectations of the highest ranked armed forces personnel. Specially when, blame for delay in such consideration, rests squarely on the shoulders of the authorities themselves. This would lead to individual resentment, bitterness, displeasure and indignation. This could also undoubtedly lead to, outrage at the highest level of the armed forces. Surely, extension of service, for the purpose granted to the appellant, would most definitely fall within the realm of Rule 16A of the Army Rules, unless of course, individual resentment, bitterness, displeasure and indignation, of army personnel at the highest level is of no concern to the authorities. Or alternatively, the authorities would like to risk outrage at the highest level, rather than doing justice to a deserving officer. Reliance on Rule 16A, to deprive the appellant of promotion, to our mind, is just a lame excuse. Accordingly, extension in service granted to the appellant, for all intents and purposes, in our considered view, will be deemed to satisfy the parameters of exigency of service, stipulated in Rule 16A of the Army Rules.
31…..This because of denial of due consideration to the appellant, who was the senior most eligible serving Major-General, as against the claim of others who were junior to him. And specially when the respondents desired to fill up the said vacancy, and also because the vacancy had arisen when the appellant still had 14 months of remaining Army service. Surely it cannot be overlooked that the Selection Board had singularly recommended the name of the appellant for promotion, out of a panel of four names. In such an eventuality, we would have no other alternative but to strike down the action of the authorities as being discriminatory and violative of Article 16 of the Constitution of India.”
24. In Haryana State Warehousing Corporation and others vs. Jagat Ram and another, (2011) 3 SCC 422, the Hon’ble Supreme Court held as under:
“17. In applying the principle of granting promotion on the basis of seniority-cum-merit, what is important is that the inter se seniority of all candidates who are eligible for consideration for promotion should be identified on the basis of length of service or on the basis of the seniority list as prepared, inasmuch as, it is such seniority which gives a candidate a right to be considered for promotion on the basis of seniority-cum-merit.
18. As was indicated in State of Mysore vs. Syed Mahmood, AIR 1968 SC 1113 that where the promotion is based on seniority-cum-merit, the officer cannot as a matter of right claim promotion by virtue of his seniority alone, which principle is also reflected in Regulation 8(2) of the 1994 Regulations. Consequently, the candidate had to be fit to discharge the duties of the higher post and if his performance was assessed not to meet such a requirement, he could be passed over and those junior to him could be promoted despite his seniority in the seniority list.
19. In the instant case, the only feature which weighed with the Corporation in granting promotion to Ram Kumar was a comparative assessment between his performance and that of Jagat Ram. While Jagat Ram had got only one "outstanding" remark in 10 years, Ram Kumar had obtained "outstanding" remark in all the 10 years. Accordingly, he was preferred to Jagat Ram, whose qualifications were inferior to that of Ram Kumar by comparison. But, as has been rightly held by the Division Bench of the High Court, in cases of seniority-cum-merit, the comparative assessment is not contemplated and is not required to be made.
20. There is nothing on record to indicate that Jagat Ram was not capable of discharging his functions in the promoted post of Assistant Manager (Administration). He was denied promotion only on 15th ground of the superior assessment that had been made in favour of Ram Kumar, which, in our view, runs contrary to the concept of seniority-cum-merit…..”
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5. It needs to be reiterated that public offices, both big and small, are sacred trusts. Such offices are meant for use and not abuse and in case repositories of such offices surpass the rule, then the law is not powerless and would step into quash such arbitrary orders. 26. As observed above, respondent No.1 is admittedly a State within the meaning of Article 12 of the Constitution of India and, cannot, therefore, act like a private individual, who is free to act in a manner whatsoever he likes, unless it is interdicted or prohibited by law. It is settled that the State and its instrumentalities have to act strictly within the four corners of law and all its activities are governed by Rules, Regulations and Instructions and in absence of any of these, they have to act fairly, justly and above all impartially. 27. From the above discussion, it is manifest that action of respondent No.1 is neither fair nor just, as it was required to consider the case of a Senior Officer before promoting a Junior Officer that too a deputationist to the post in question i.e. Joint Director/Personal-cum-Legal as against the petitioner, who was a regular employee of the respondent-Board and had a blemishless records. 28. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed. The respondent Board is directed to consider the petitioner for promotion to the post of Joint Director/Personal-cum-Legal from the date when respondent No.2 was promoted to the said post vide order dated 17.5.2010, (Annexure P-5), with all consequential benefits. 29. Insofar as prayer No.2 regarding quashing of promotion of respondent No.2 is concerned, the same is disallowed because it is too late in the day as respondent No.2 has already retired from service and it would be extremely harsh, at this stage, to withdraw the promotion of respondent No.2 as the same would entail serious financial and other consequences. 30. Since, the petitioner has been dragged into an un-necessary and unwarranted litigation, therefore, respondent No.1 is burdened with costs of Rs. 50,000/-which shall be paid to the petitioner on or before 15th September, 2019. The costs at the first instance will be paid by respondent No.1 from its own coffers and thereafter the same shall be recovered from the erring Official/Officer(s) irrespective whether they are still serving or have retired from service. The inquiry against the erring Official/Officer(s), irrespective of their ranks and files, shall be conducted personally by the Secretary, Bhakra Beas Management Board and report thereof be submitted to this Court positively by 31.12.2019. 31. For compliance, list on 01.01.2020.