IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 8877 of 2023 Date of Decision: 23.06.2025 _______________________________________________________ Ashwani Kumar …….Petitioner Versus State of Himachal Pradesh & others … Respondents ______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes. For the Petitioner: Mr. Peeyush Verma, Senior Advocate with Mr. Ajay Sharma, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol and Mr. B.C.Verma, Additional Advocate Generals and Mr. Ravi Chauhan, Deputy Advocate General, for the respondent/State. Mr. Rajiv Rai, Advocate, for respondent Nos. 3 and 4. _______________________________________________________ Sandeep Sharma, Judge(oral): Petitioner herein is aggrieved of recommendation made by the Departmental Promotion Committee dated 01.12.2022 (Annexure P-16), whereby petitioner’s case for promotion to the post of Superintendent Grade -1 has been rejected, and his earlier promotions to the post of Senior Assistant in May, 2010 and thereafter, to the post of Superintendent Grade-II have been held to be erroneous. 1Whether the reporters of the local papers may be allowed to see the judgment? 2 2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Peeyush Verma, learned Senior Counsel representing the petitioner, is that once this Court, while passing judgment dated 25.11.2022 passed in CWP No.5772 of 2021, tilted Ashwani Kumar Vs. State of Himachal Pradesh and others, had issued positive direction to the respondents to consider the case of the petitioner for promotion against the post of Superintendent Grade-1 latest by 2nd December, 2022, there was no occasion, if any, for the Departmental Promotion Committee ( for short ‘DPC’) to review earlier promotion given to the petitioner against the post of Senior Assistant and thereafter, Superintendent Grade-II, especially when no challenge to the same ever came to be laid at the behest of so called effected party namely, Sh. Bachhan Singh. 3. For having bird’s eye view, facts relevant for the adjudication of the case at hand are that petitioner herein was appointed as Clerk on daily wage basis with respondent No.4- Trust vide office order dated 22.12.1990 (Annexure P-1). Subsequently, services of the petitioner were regularized as Clerk w.e.f.10.07.1996 (Annexure P-2) and thereafter, he was 3 promoted against the post of Senior Assistant, with further promotion to the post of Superintendent Grade-II on adhoc basis, vide office order dated 01.01.2018 (Annexure P-5). Next promotional post from the post of Superintendent Grade-II is that of Superintendent Grade-1, but since at the time of filing of earlier writ petition bearing CWP No.5772 of 2021, there are no R&P Rules in the Trust governing promotion to the afore post, petitioner after his having completed three years, represented to the respondent-Trust to promote him to the post of Superintendent Grade-I, but since no heed was paid to the request of the petitioner, he approached this Court by way of writ petition, as detailed hereinabove, wherein it came to be averred at the behest of the petitioner that one Junior Engineer, Sh. Prem Chand Sharma, was promoted to the post of Assistant Engineer despite the fact that there were no R& P Rules existing in the respondent-Trust with regard to promotion to the said post, but by applying the analogy of R&P Rules prevailing in other departments of Government of Himachal Pradesh, where there exist the posts of junior Engineer as also the Assistant Engineer. 4 4. Afore petition filed at the behest of the petitioner came to be resisted on behalf of the respondent-State on the ground that Recruitment & Promotions Rules for promotion to the post of Superintendent Grade-I were yet not framed and were under consideration. Co-ordinate Bench of this Court, taking note of the pleadings adduced on record by the respective parties, disposed of the petition with a direction to the respondents that after completion of all codal formalities, the case of the petitioner be considered for promotion against the post of Superintendent Grade-1 latest by 2nd December, 2022, and if found eligible for promotion, then let said promotion be conferred upon the petitioner forthwith and thereafter, if the petitioner gives his option, then, he be absorbed in the Department of Education, as Superintendent Grade-1(Annexure P-12). In the afore background, issue with regard to promotion of the petitioner from the post of Superintendent Grade –II to Superintendent Grade-1 came to be placed before DPC, which vide proceedings dated 01.12.2022 (Annexure P-16), though considered the case of the petitioner in the DPC meeting, but instead of granting him promotion to the post of Superintendent Grade-1, held him not eligible to be granted promotion to the post of Senior Assistant 5 and thereafter, Superintendent Grade-II. The Committee in its meeting held the petitioner eligible for promotion to the post of Senior Assistant w.e.f 21.12.2017 and thereafter, to the post of Superintendent Grade-II only after 21.12.2022. In the afore background, petitioner has approached this Court in the instant proceedings, praying therein to set-aside aforesaid order and direct the department to grant him promotion to the post of Superintendent Grade-1 in terms of judgment dated 25.11.2022 passed by Co-ordinate Bench of this Court in CWP No.5772 of 2021. 5. Pursuant to the notices issued in the instant proceedings, respondent Nos. 3 and 4 have filed reply, wherein facts, as have been noticed hereinabove, have been not disputed, rather an attempt has been made to justify the action of the DPC by stating that since DPC, after having perused entire record, found that earlier promotions granted to the petitioner to the post of Senior Assistant and Superintendent Grade-II were not in accordance with law and were wrongly granted in the years 2010 and 2018 respectively, no illegality can be said to have been committed by the Committee, while holding petitioner 6 herein entitled for promotion to the post of Superintendent Grade-II on 21.12.2022. 6. Learned counsel for the petitioner vehemently argued that impugned order passed by the DPC held on 01.12.2022, inasmuch as it rejected the case of the petitioner for promotion to the post of Superintendent Grade-1 w.e.f 2.12.2022, is not in accordance with law and the factual position existing on record. He submitted that since DPC was only convened to consider the case of the petitioner for promotion to the post of Superintendent Grade-1, and prior to afore meeting, no order was ever passed, thereby holding promotion of the petitioner to the post of Superintendent Grade-II bad in law, there was otherwise no occasion for the DPC to go into that aspect of the mater, rather it ought to have considered the case of the petitioner for promotion to the post of Superintendent Grade-1, taking note of the fact that he stood promoted to the post of Superintendent Grade-II on 01.01.2018. Learned counsel for the petitioner further argued that once this Court, while passing judgment dated 25.11.2022, had otherwise issued positive direction to the respondents to consider the case of the petitioner for promotion against the post of Superintendent Grade-1 latest by 2nd 7 December, 2022, DPC could not have gone into the question of promotion allegedly erroneously given to the petitioner against the post of Senior Assistant and Superintendent Grade-II on 18.5.2010 and 01.01.2018 respectively. He submitted that this Court, having taken note of promotion granted to the petitioner against the post of Senior Assistant on 18.5.2010 and Superintendent Grade-II on 01.01.2018, had proceeded to issue direction to the respondents to consider the case of the petitioner for promotion against the post of Superintendent Grade-I latest by 2nd December, 2022. If it is so, DPC in its meeting held on 01.12.2022 had no occasion to look into the correctness of the promotion granted to the petitioner against the post of Senior Assistant and Superintendent Grade-II, rather it ought to have confined itself to eligibility of promotion, if any, to the post of Superintendent Grade-1 on account of his being promoted to the post of Superintendent Grade-II on 1.1.2018. 7. Mr. Rajiv Rai, learned counsel representing respondent Nos. 3 and 4, while attempting to justify the action of the DPC, submitted that since, while undertaking exercise in terms of judgment dated 22.11.2022 passed by this Court, DPC had an occasion to go through the record and it had come to its 8 notice that earlier promotion granted to the petitioner to the post of Senior Assistant and Superintendent Grade-II was not in accordance with law, no illegality can be said to have been committed by the Committee in concluding that petitioner is not entitled for promotion, rather he had become eligible for promotion to the post of Superintendent Grade-II only after 21.12.2022. Mr. Rajiv Rai, Advocate further submitted that since petitioner has already filed an appeal before the Chairman of the Trust against the recommendation made by the DPC, the present petition is not maintainable, especially when the appeal filed by petitioner is still adjudication. 8. I have heard learned counsel for the petitioner and have gone through the record carefully. 9. This Court is persuaded to agree with learned Senior Counsel representing the petitioner that once this Court, while passing judgment dated 25.11.2022 in the earlier writ petition having been filed by the petitioner, had found petitioner herein eligible for promotion to the post of Superintendent Grade-1, and in that regard, had issued directions to the respondents to consider him for promotion against the post of Superintendent Grade-I by 2nd December, 2022, there was no occasion, if any, 9 for DPC to re-open the issue of promotion of the petitioner to the posts of Senior Assistant and Superintendent Grade-II, which admittedly never came to be laid challenge in any of the proceedings by the respondent-Department or by person, namely Bachhan Singh, who as per DPC proceedings, was otherwise eligible to be considered for promotion to the post of Senior Assistant and thereafter Superintendent Grade-II, ahead of the petitioner. There is nothing on record to suggest that above named Bachhan Singh ever agitated the issue of promotion of the petitioner qua the post of Senior Assistant and thereafter Superintendent Grade-II, ahead of him, rather he accepted the same. It is only petitioner, who approached this Court by way of CWP No. 5772 of 2021, seeking therein direction to the respondents to consider him for promotion to the post of Superintendent Grade-II on account of the fact that he had already completed three years service as Superintendent Grade-II. 10. True, it is that at the time of passing of judgment dated 25.11.2022 in writ petition detailed hereinabove, there were no R&P Rules in place for promotion to the post of Superintendent Grade-I and as such, this Court, having taken 10 note of the fact that similar situate person i.e. Junior Engineer, was given promotion on the analogy of R&P Rules existing in other departments, proceeded to direct the respondents to consider the case of the petitioner for promotion against the post of Superintendent Grade-1 by 2nd December, 2022. 11. Moreover, careful perusal of judgment dated 25.11.2022, if read in entirety, nowhere suggest that plea now sought to be taken by the respondents was ever raised. Similarly, this Court finds that even in the instant proceedings, the respondents have not raised this plea that promotion of the petitioner to the post of Senior Assistant and Superintendent Grade-II in the years 2010 and 2018, respectively, was not in accordance with law and he was not entitled for the same. Since the stand which has now been taken by the Departmental Promotion Committee was never taken by the respondent- Department and it was never their case, the rightful claim of the petitioner cannot be permitted to be defeated on the ground taken by the DPC, which otherwise does not appear to be legally sustainable. 12. Leaving everything aside, once judgment dated 25.11.2022 passed by this Court has attained finality, and in that 11 judgment specific direction was issued to the respondents to consider the case of the petitioner against the post of Superintendent Grade-1, there was no occasion, if any, for DPC to look into the aspect of promotion of the petitioner to the post of Senior Assistant and thereafter Superintendent Grade-II. Moreover, this Court finds that respondent-Department, while preparing agenda for DPC in terms of judgment dated 25.11.2022 passed in CWP No. 5772 of 2021, nowhere requested DPC to review the promotion of the petitioner to the post of Senior Assistant and Superintendent Grade-II, rather agenda was specifically prepared for consideration of the case of the petitioner for promotion to the post of Superintendent Grade- 1 from Superintendent Grade-II. However, it appears that DPC, in violation of mandate contained in the judgment dated 25.11.2022, wrongly undertook the exercise of re-examining the issue of promotion of the petitioner to the post of Senior Assistant and Superintendent Grade –II, which otherwise has attained finality. 13. No doubt, petitioner, prior to filing the petition at hand, had already filed an appeal before the Chairman of the Trust, thereby laying challenge to the proceedings of DPC, but 12 that may not be a reason for this Court to non-suit the petitioner, especially when issue with regard to violation of directions contained in the judgment dated 25.11.2022, passed by this Court in the earlier writ petition can only be seen by this Court. Since this Court, after having taken note of previous promotion of the petitioner to the post of Senior Assistant and thereafter Superintendent Grade-II, had directed respondent-Department to consider the case of the petitioner for promotion to the post of Superintendent Grade-1 and question with regard to non- compliance of aforesaid judgment, if any, can be gone into by this Court in the instant proceedings, pendency of appeal, if any, filed by the petitioner is of no consequence, rather same shall stand rendered infructuous on account of judgment passed in the instant case. 14. Consequently, in view of the detailed discussion made hereinabove, this Court finds merit in the present petition and accordingly same is allowed. Impugned minutes of DPC held on 01.12.2022 (Annexure P-16), are quashed set-aside inasmuch as case of the petitioner for promotion to the post of Superintendent Grade-1 from Superintendent Grade-II has been rejected. Respondent-Department is directed to consider the 13 case of the petitioner afresh by convening a review DPC expeditiously, preferably within a period of two weeks, in light of directions contained in judgment dated 25.11.2022 as well as observations and findings recorded in the instant judgment and thereafter, necessary orders with regard to promotion of the petitioner to the post of Superintendent Grade-1 may be passed, if there is no other legal impediment. Needless to say, promotion, if any, of the petitioner to the post of Superintendent Grade-1 shall relate back 2nd December 2022, the date on which, respondents were otherwise required to consider the petitioner for promotion to the post of Superintendent Grade-1 in terms of judgment passed by this Court in CWP No. 5772 of 2021. Pending applications, if any, also stand disposed of. (Sandeep Sharma), Judge June 23, 2025 (shankar)