2025:HHC:32947-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4029 of 2021 Reserved on: September 11, 2025 Decided on: September 22, 2025 ______________________________________________________________ Subhash Kumar and another ...Petitioners Versus State of Himachal Pradesh and others …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Jiya Lal Bhardwaj, Senior Advocate with Ms. Dhanwanti, Advocate. For the respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General with Mr. Ravi Chauhan, Deputy Advocate General, for the respondent-State. Mr. Ajay Kumar Chauhan, Advocate, for respondent Nos. 2 and 3. Mr. Dilip Sharma, Senior Advocate with Mr. Manish Sharma, Advocate, for respondent No.4. ____________________________________________________________________ Sandeep Sharma, J. By way of instant petition filed under Art. 226 of the Constitution of India, the petitioners have prayed for the following main reliefs: “i) That a writ in the nature of certiorari may kindly be issued to quash and set aside the order of rejection of the representations of the petitioners vide Annexures P-15 and P-16 (dated 18.06.2021) and also order of promotion of respondent No.4 to the post of divisional Manager (Non Technical) vide Annexure P-17 dated 19.06.2021 issued by respondent No.3; 2025:HHC:32947-DB - 2 - ii) That a writ in the nature of certiorari may kindly be issued to quash and set aside the order or promotion of respondent No.4 to the post of Deputy Divisional Manager (Legal) vide Annexure P-11 dated 03.05.2017 and also to include his category from the post of Deputy Divisional Manager (Legal & Labour) to the Deputy Divisional Manager (Non Technical) after directing respondent No.3 to place on record the final seniority list of the post of Deputy Divisional Manager (Non Technical); iii) That a writ in the nature of mandamus may kindly be issued directing respondents No. 1 to 3 to promote the petitioners to the post of Divisional manager (Non Technical) with all consequential benefits and further the petitioners may be assigned seniority above respondent No.4 (sic: respondent No.3) and further the arrears may kindly be ordered to be paid to the petitioners alongwith interest @9% per annum from the date same fell due till is realization; iv) That a writ in the nature of mandamus may kindly be issued directing respondents No.1 to 3 to make recovery of the salary which respondent No.4 has drawn on the post of Deputy Divisional Manager (Legal & Labour) with effect from 03.05.2017, especially when there was no such post existing under the R&P Rules and thereafter on the post of Divisional Manager (Non Technical) with effect from 19.06.2021 alongwith interest @9% per annum from the date same fell due till is realization.” 2. Precisely, the facts of the case as emerge from the record and germane for the adjudication of the controversy at hand are that there are posts of Divisional Manager in the respondent Corporation, below these posts are the posts of Deputy Divisional Managers, then Regional 2025:HHC:32947-DB - 3 - Manager and other posts. If a hierarchical chart is drawn, it would be as under: Divisional Manager 8 posts Deputy Divisional Manager (Comm./IT) Deputy Divisional Manager (Non-Technical) 4 posts Deputy Divisional Manager (Technical) Regional Manager (Stores) Regional Manager (Traffic) Regional manager (L&L) 1 post Regional Manager Law Officer 1 post 3. Close scrutiny of pleadings as well as documents adduced on record reveals that there is a cadre of Legal Assistant/Law Officer in the respondent Corporation. Post of Law Officer was up-graded to that of Regional Manager (Legal and Labour) in 1996, vide 8th Amendment of R&P Rules, 1996 vide order dated 15.2.2011. Respondent No. 4 is a person, who was initially appointed as Legal Assistant in the respondent-Corporation, as is evident from order dated 5.7.1997 but later on, how he came to be posted as Law Officer is not clear from the pleadings. Respondent No.4 was further promoted to the post of Regional Manager (L & L) on 28.2.2011, pursuant to upgradation of one post of Law Officer as such. Thereafter, respondent No.4 requested for creation of one post of Deputy Divisional Manager (Legal) or for upgradation of one post of Regional Manager (Legal) to that of Deputy Divisional Manager (Legal). Taking note of the fact that, there were 4-5 2025:HHC:32947-DB - 4 - Regional Managers, senior to respondent No.4, respondent Corporation placed the matter before Service Committee, vide Item No. 6, in its meeting held on 29.3.2017 and said item was approved, resulting in upgradation of one post of Regional Manager (Legal and Labour) to that of Deputy Divisional Manager (Legal), with the rider that said post would revert to original post, with the retirement of the incumbent. In the proceedings of meeting of Departmental Promotion Committee held on 3.5.2017, respondent No.4 was promoted as Deputy Divisional Manager (Legal), “on regular basis in order of his merit and position in the seniority.” Pursuant to such promotion, name of respondent No.4 has been shown in provisional seniority list of Deputy Divisional Managers (Non-technical) as it stood on 30.7.2020, at Sr. No. 5. Thereafter, vide office order dated 19.6.2021 (Annexure P-17), respondent No.4 stands promoted as Divisional Manager. 4. Petitioners, on the other hand, were inducted as Station Supervisor and Chief Inspectors, on 12.2.1990 and 14.2.1990, respectively. Petitioner No.1 was promoted as Traffic Manager on 16.8.1996 and petitioner No.2 as such on 22.9.1998 and thereafter, they were promoted as Regional Managers (Traffic) on 17.3.2007 and 31.5.2010, respectively. Respondent No.4 was promoted as Regional Manager (Legal) on 28.2.2011. It would be apt to take note here that the cadre of Regional Managers, either Stores, Traffic, Legal or otherwise, forms a common cadre for promotion to the post of Deputy Divisional 2025:HHC:32947-DB - 5 - Manager (Non-technical), which itself is one of feeder cadre inter alia others, for the post of Divisional Manager (Non-technical). It is undisputed that the streams viz. traffic, legal, stores and others, from Non-technical cadre. 5. Precisely, the grievance of the petitioners is has been highlighted in the petition and further canvassed by Mr. Jia Lal Bhardwaj, learned senior counsel duly assisted by Ms. Dhanwanti, Advocate is that respondent No.4 has been unduly favoured by promoting him firstly as Deputy Divisional Manager (Legal) and secondly, by promoting him as Divisional Manager (Non-Technical). It is submitted at the behest of the petitioners that they were senior to respondent No.4 in the cadre of Regional Managers, and therefore, they ought to have been promoted to the post of Deputy Divisional Manager (Non-technical). 6. So far, reply of respondent No.3 Corporation, similar to which is the reply of respondent No.4, is concerned, it has taken a stand that on 3.5.2017, when respondent No.4 was promoted as Deputy Divisional Manager (Legal), there was no post of Deputy Divisional Manager (Non- technical) vacant, against which petitioners could be promoted. So far promotion of respondent No.4 to the post of Divisional Manager (Non- technical) is concerned, it is the stand of contesting respondents that the post of Deputy Divisional Manager (Legal) is a non-technical post and thus, respondent No.4 is eligible to be promoted as Divisional Manager (Non-technical). This, however, poses a question, if Deputy Divisional 2025:HHC:32947-DB - 6 - Manager (Legal) is part of common cadre of Non-technical, whether cadre of Deputy Divisional Manager (Non-technical) would increase with the upgradation of one post of Regional Manager (Legal and Labour) as Deputy Divisional Manager (Legal) and whether a person having the related qualification would only be eligible to be promoted as such. A perusal of Annexure P-9, which appear to be Recruitment and Promotion Rules for the post of Deputy Divisional Manager (Non- technical), column No.7 shows that there are three qualifications for said post, inter alia Law Graduation, which shows that it is a common cadre and there is no separate cadre of Deputy Divisional Manager (Legal). Perusal of Column No. 11 shows that Regional Managers in different trades form feeder cadre but selection will be on ‘merit-cum-seniority inter se’, which means there has to be a ‘common inter-se seniority’ to be maintained of all these cadres. But so far, no such document has seen the light of day. Deputy Divisional Manager (Non-technical) is a common cadre, without any distinct posts allotted to any stream, which is evident from annexure P-10, which is Recruitment and Promotion Rules for the post of Divisional Manager (Non-technical), which again provides for promotion from said cadre, on ‘merit-cum-seniority inter se’, meaning thereby there has to be a ‘common inter-se seniority of Deputy Divisional Managers (Non-technical)’ but again it is not clear that whether post of Deputy Divisional Manager (Legal) is a separate cadre or part of non-technical cadre. 2025:HHC:32947-DB - 7 - 7. 2025:HHC:32947-DB - 7 - 7. The petitioners are aggrieved by the fact that though they were senior in the cadre of Regional Managers, but were not promoted as Deputy Divisional Manager (Non-technical) to which reply of contesting respondents is that there was no such post available on 3.5.2017, when respondent No.4 was promoted against the up-graded post of Deputy Divisional Manager (Legal). 8. At this stage, this court is unable to understand that when post of Deputy Divisional Manager (Legal) is not mentioned as feeder post for promotion as Divisional Manager (Non-technical), on what basis he has been promoted as such. If the contention of respondent No.3 that cadre of Deputy Divisional Manager (Legal) is a part of non-technical cadre, is accepted, where was the need to upgrade the post of Regional Manager (Legal and Labour) as Deputy Divisional Manager (Legal). The Corporation could have upgraded the post as Deputy Divisional Manager (Non-technical) as per cadre strength and then could have promoted eligible incumbent from the feeder cadre to said post, on the basis of merit and inter-se seniority in the feeder cadre. 9. True it is that it is for an organization to meet its requirement of staff as per its wisdom but the effect of upgradation of post of Law Officer to that of Regional Manager (Legal and Labour) then upgradation of later post to that of to Deputy Divisional Manager (Legal) has resulted in giving undue favour to respondent No.4, who being the only Law Graduate in the corporation kept on being considered for promotion, 2025:HHC:32947-DB - 8 - firstly from Law Officer to Regional Manager (Legal and Labour) and then to Deputy Divisional Manager (Legal), taking benefit of his qualification and debarring others from being considered for promotion to said post, on account of specific qualification attached to said post. 10. Precisely, the question which needs to be determined by this Court is, what prejudice has been caused to the petitioners, on account of such upgradation of posts/promotion of respondent No.4. Apparently, had there been no upgradation of posts, definitely, the petitioners, who were borne on the cadre of Regional Manager ahead of respondent No.4 would have been considered for promotion to the post of Deputy Divisional Manager (non-technical) and then as Divisional Manager (Non-technical). But on account of parallel platforms being created for respondent No.4, in which petitioners were debarred from being considered on account of qualification-specific posts being created/upgraded, the impact has been such that respondent No.4, who was junior to the petitioners right from induction in the department, till induction in the common cadre of Regional Manager, got an edge over petitioners and he directly reached the post of Divisional Manager (Non- technical) after he was included in the cadre of Deputy Divisional Manager (Non-technical) (albeit promoted as Deputy Divisional Manager (Legal). 11. Another question, which needs determination is whether this Court, in exercise of power under Art. 226 of Constitution of India, can 2025:HHC:32947-DB - 9 - interfere with the decision of Service Committee or the Departmental Promotion Committee in upgradting posts or promotion of respondent No.4. Pitted against the grave injustice caused to petitioners, in the matter of promotion, who definitely would have been considered ahead of respondent No.4 for promotion to the post of Deputy Divisional Manager (Non-technical), the answer is a ‘yes’. 12. Action of the respondent Corporation in up-grading the posts of Law Officer to Regional Manager (Legal and Labour) and then of later post to that of Deputy Divisional Manager (Legal) though appears to have been taken to meet the organization demand, but the effect thereof clearly shows that same is not only an arbitrary and discriminatory exercise of power, but infringes the promotional avenues of petitioners. Had there been no up-gradation of posts and resultant promotion of respondent No.4, it is the petitioners, who would have been promoted to the post of Deputy Divisional Manager (Non-technical) and then as Divisional Manager (Non-technical). 13. From the above, this court is compelled to draw the conclusion that promotion of respondent No.4 from the post of Regional Manager (Legal and Labour) to that of Deputy Divisional Manager (Legal), which is claimed to be a Non Technical post is an arbitrary exercise on the part of the respondent Corporation, which has resulted in grave injustice to the petitioners, as they were senior to respondent No.4 and in normal course, it is them who would have been considered for promotion to the 2025:HHC:32947-DB - 10 - post of Deputy Divisional Manager (Legal)/(Non Technical), since it is admitted by contesting respondents themselves that said post is a Non Technical post, thus, the procedure as prescribed in Recruitment and Promotion Rules for said post would have been adopted, which provides for promotion to said post from the feeder cadre of Regional Manager, on the basis of ‘merit-cum-seniority inter se’. 14. Since the induction of respondent No.4 in the post of Deputy Divisional Manager (Legal) or to say, Deputy Divisional Manager (Non technical) is illegal, his further promotion to the post of Divisional Manager (Non Technical) is also illegal. 15. Consequently, in view of detailed discussion made herein above, the petition is allowed and prayers at clause i) to iii) of the petition are granted. Promotion of respondent No.4 to the posts Deputy Divisional Manager (Legal) vide Annexure P-11, dated 3.5.2017 is held to be bad and accordingly set aside so also promotion of respondent No.4 to the post of Divisional Manager (Non Technical) vide Annexure P-17, dated 19.6.2021. Respondent No.3 is directed to amend the seniority lists of Regional Managers and Deputy Divisional Manager (Non Technical) and thereafter, if the petitioners are found eligible for promotion to the posts of Deputy Divisional Manager (Non Technical) and Divisional Manager (Non Technical), they be promoted against said post(s). Needless to say, petitioners shall be entitled for all ancillary benefits, on account of such promotion. 2025:HHC:32947-DB - 11 - 16. So far prayer of petitioners to recover amount from respondent No.4 on account of salary drawn by him on the posts of Deputy Divisional Manager (Legal)/(Non-Technical) and Divisional Manager (Non Technical) is concerned, this court is of the view that such an action would be harsh upon said respondent, firstly for the reason, he was not solely responsible for such promotions and secondly, said respondent has since retired. Accordingly, prayer at clause iv) is declined. Writ petition, stands disposed of in the afore terms. Pending application(s), if any, also stands disposed of. (Sandeep Sharma), Judge September 22, 2025 (Vikrant)