IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 11719 of 2024 Date of Decision: 27.03.2025 _______________________________________________________ Bhoop Ram Sharma and another …….Petitioners Versus State of Himachal Pradesh & another … Respondents ______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioners: Mr. Onkar Jairath and Mr. Piyush Mehta, Advocates. For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals and Mr. Ravi Chauhan, Deputy Advocate General, for the respondent- State _______________________________________________________ Sandeep Sharma, Judge(oral): By way of instant petition filed under Article 226 of the Constitution of India, petitioners have prayed for following main reliefs:- “i) That a writ in the nature of certiorari or any other appropriate writ, order of direction may kindly be issued to the respondents quashing the impugned order dated 22.05.2024(Annexure P-9) being patently illegal, arbitrary, discriminatory, unconstitutional besides the same being in violation to the settled principles of service jurisprudence; 1Whether the reporters of the local papers may be allowed to see the judgment? 2 ii) That a writ in the nature of mandamus or any other appropriate writ, order of direction may kindly be issued to the respondents directing to restore the promotion of the petitioners and allow the petitioners to work as Deputy Commissioner State Taxes and Excise in the respondent-Department in pursuance to notification dated 20.11.2023 and other consequential orders; iii) That a writ in the nature of mandamus or any other appropriate writ, order of direction may kindly be issued to directing he respondents to pass a fresh order of promotion from due date i.e.20.11.2023.” 2. Brief facts relevant for adjudication of the case at hand are that in the year 1994, petitioners herein were appointed as Excise and Taxation Inspectors on the recommendation made by Himachal Pradesh Public Service Commission, Shimla. Subsequently in the year 2012 and 2014, petitioners, namely Sh. Bhoop Ram Sharma and Sh. Nutan Mahajan came to be promoted to the post of Excise and Taxation Officers on adhoc basis. However, in the year 2015, both the petitioners were confirmed against the post of Excise and Taxation Officers, which post subsequently came to be re-designated as Assistant Commissioner, State Taxes and Excise. In the year 2023, two posts of Deputy Commissioner (State Taxes and Excise) had fallen vacant, one in the month of August, 2023 and another in the month of September 2023, as a result thereof, respondent- Department initiated process for filling up afore two posts of Deputy 3 Commissioner, State Taxes and Excise strictly as per the Recruitment & Promotion Rules. Since petitioners also fell in consideration zone, their ACR’s as well as other relevant material were summoned and considered by Departmental Promotion Committee. After completing the legal and procedural formalities, vide notification dated 20.11.2023, petitioners herein came to be promoted to the post of Deputy Commissioner, State Taxes and Excise(Class-I Gazetted in the Level-17 of pay matrix i.e. Rs. 53600-170100)/- on regular basis with immediate effect on the basis of recommendation made by the Departmental Promotion Committee. Vide office order dated 11.01.2024, pay of the petitioners was fixed accordingly. W.e.f. 20.11.2023 petitioners kept on discharging duties as Deputy Commissioner, State Taxes and Excise on regular basis, but to the utter surprise of the petitioners, their promotion orders were withdrawn vide order dated 22.05.2024 (Annexure P-9) on the ground that no promotion to the post of Deputy Commissioner(State Taxes & Excise) could have been offered on account of interim order dated 15.10.2022 passed by this Court in CWP No.6350 of 2022, titled as Jyoti Swarup Sharma vs. State of Himachal Pradesh and others. In the afore background, petitioners have approached this Court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove. 4 3. Before ascertaining the claim put forth by the petitioners, it is apt to take note of the fact that in the year 2022, person namely Jyoti Swarup Sharma, who at the relevant time was working on adhoc basis as Assistant Commissioner, State Taxes and Excise, filed writ petition bearing CWP No.6350 of 2022, seeking therein direction to promote him to the post of Assistant Commissioner (State Taxes and Excise) on regular basis. Co-ordinate Bench of this Court taking note of the averments contained in the aforesaid petition, passed order dated 15.10.2022(Annexure P-6), thereby ordering that until next date, no decision in respect of promotions for the post of Deputy Commissioner(State Taxes and Excise) shall be taken. However, as has been taken note hereinabove, petitioners, who with the issuance of notification dated 01.06.2015 (Annexure P-1) stood regularized against the post of Excise & Taxation Officer, which posts subsequently came to be designated as Assistant Commissioner (State Taxes & Excise) were granted promotion to the post of Deputy Commissioner against two posts, which had actually fallen vacant in the year 2023. After promotion of the petitioners to the post of Deputy Commissioner (State Taxes & Excise), person namely Jyoti Swarup Sharma filed contempt petition bearing COPC No. 528 of 2023 alleging therein violation of order dated 15.10.2022. After receipt of notice in the aforesaid contempt petition, respondents, while tendering 5 unconditional apology for their having violated order dated 15.10.2022 passed in CWP No.6350 of 2022, also apprised Court concerned with regard to passing of order dated 22.05.2024 (Annexure P-9). 4. Now, precisely the grouse of the petitioners as has been highlighted in the petition and further canvassed by Mr. Onkar Jairath, learned counsel for the petitioners, is that at the time of passing of order dated 15.10.2022 in CWP No.6350 of 2022, true facts were not placed before the Division Bench of this Court, which merely on the basis of pleadings adduced on record by the petitioner in that case, proceeded to order that until next date, no promotion to the post of Deputy Commissioner(State Taxes and Excise) shall be made. Learned counsel for the petitioners, while making this Court peruse pleadings of CWP No.6350 of 2022 filed by Sh. Jyoti Swarup Sharma, contended that his precise prayer in that case was to regularize him against the post of Assistant Commissioner (State Taxes and Excise) from due date and at that juncture, he had no claim, if any, for promotion qua two posts of Deputy Commissioner (State Taxes & Excise), which had fallen vacant in the year 2023, especially when by that date, he stood retired. Learned counsel for the petitioners, while referring to the reply filed by the respondents in CWP No.6350 of 2022, further argued that since at the time of convening meeting of Departmental Promotion Committee for promotion to the post of 6 Deputy Commissioner(State Taxes & Excise) in the year 2023, criminal cases i.e FIR No. 9 of 2016 and FIR No.9 of 2014 under relevant provision of IPC stood lodged against Jyoti Swarup Sharma, he otherwise could not have been considered for promotion to the higher post. Learned counsel for the petitioners further argued that once at the time of convening meeting of Departmental Promotion Committee in the month of November, 2023 person, namely Jyoti Swarup Sharma stood superannuated from the post of Assistant Commissioner, there was no occasion for the Departmental Promotion Committee to consider him for promotion. Learned counsel for the petitioners submitted that since afore facts were never brought to the notice of Division Bench of this Court at the time of passing of order dated 15.10.2022 (Annexure P-6), thereby restraining the respondents from carrying out promotion to the post of Deputy Commissioner( State Taxes & Excise) came to be passed. He submitted that even at the time of filing contempt petition, as detailed hereinabove, true facts were not placed, but fact remains that aforesaid order dated 15.10.2022 was subsequently vacated by learned Single Judge vide order dated 19.07.2024. While referring to the reply filed by respondents in the case at hand, learned counsel for the petitioners submitted that as per own case of the respondents, petitioners are entitled for promotion to the higher post, but for that 7 respondents have proposed to initiate fresh process, by which time petitioners if not protected would superannuate on 31st March, 2025. 5. I have heard learned counsel for the parties and have gone through the record carefully. 6. Bare perusal of the reply filed by the respondents, if perused in its entirety, nowhere disputes facts, as have been taken note hereinabove, rather an attempt has been made to defeat the rightful claim of the petitioners on the ground that promotion granted to the petitioners vide order dated 22.5.2024 could not have been made on account of order dated 15.10.2022 passed by Division Bench of this Court in CWP No.6350 of 2022, which admittedly now stands vacated. 7. In the reply, it has been categorically admitted by the respondents that petitioners herein are eligible to be promoted to the post of Deputy Commissioner (State Taxes & Excise), but in that regard fresh process shall be initiated. However, no time limit has been detailed in the reply within which meeting of Departmental Promotion Committee for promotion to the post of Deputy Commissioner (State Taxes & Excise) is likely to be conducted. Interestingly, if the reply filed by the respondents, is perused in its entirety, there is no specific denial to the fact that person, namely Jyoti Swarup Sharma was not entitled for promotion to the post of 8 Deputy Commissioner(State Taxes & Excise) on account of two criminal cases registered against him, as detailed hereinabove. If the reply filed by the respondents in writ petition bearing CWP No.6350 of 2022 filed by Jyoti Swarup Sharma, is perused in its entirety, it clearly suggests that promotion of Sh. Jyoti Swarup Sharma was opposed on the ground of pendency of criminal cases. It is not in dispute that two posts of Deputy Commissioner (State Taxes & Excise) fell vacant in the year, 2023 and for filling of these two posts, meeting of Departmental Promotion Committee was convened in the month of November, 2023, whereas person, namely Jyoti Swarup Sharma stood superannuated on 31.03.2023. Once, it is not in dispute that at the time when meeting of Departmental Promotion Committee was held in the month of November 2023, person namely Jyoti Swarup Sharma stood superannuated, there was otherwise no occasion for Departmental Promotion Committee to consider the case of the Sh. Jyoti Swarup Sharma for promotion to the post in question. 8. True, it is that in terms of order dated 15.10.2022, no decision in respect of promotion to the post of Deputy Commissioner (State Taxes & Excise) could have been taken by the respondent- Department, but once after passing of afore order, two posts of Deputy Commissioner(State Taxes & Excise) had fallen vacant and petitioners herein were entitled to be promoted against the post in 9 question, coupled with the fact that Departmental Promotion Committee after having found petitioners eligible for promotion, recommended their names for promotion, there was otherwise no occasion, if any, for the respondents to withdraw order dated 22.5.2024, whereby petitioners herein were ordered to be promoted to the post of Deputy Commissioner(State Taxes & Excise). 9. No doubt person, namely Sh. Jyoti Swarup Sharma had filed contempt petition, alleging therein violation of order dated 15.10.2022, but it appears that in those proceedings, true facts were not placed before the Court, rather Department under threat of contempt, proceeded to withdraw the promotion orders passed on 22.5.2024 on the recommendation made by the Departmental Promotion Committee. Had factum with regard to non-eligibility of person namely Sh. Jyoti Swarup Sharma for promotion to the post of higher post brought to the notice of Division Bench of this Court, order dated 15.10.2022 would not have been passed. Once detailed reply in afore writ petition bearing CWP No.6350of 2022 was filed by the respondent-Department, thereby justifying its action to hold Departmental Promotion Committee for promotion to the post of Deputy Commissioner (State Taxes & Excise), learned Single Judge before whom matter came up for hearing after admission, proceeded to vacate the order dated 15.10.2022 vide order dated 19.07.2024 10 (Annexure P-8). This Court finds that person namely Sh. Jyoti Swarup Sharma was actually aggrieved of his being not granted regularization against the post of Assistant Commissioner(State Taxes & Excise), but before such dispute could be resolved by competent Court of law, two posts of Deputy Commissioner(State Taxes & Excise) fell vacant and person namely Sh. Jyoti Swarup Sharma though was not eligible to be considered against the post of Deputy Commissioner(State Taxes & Excise) on account of his being not regularly appointed against the post of Assistant Commissioner(State Taxes & Excise), coupled with the fact that at the relevant time, he was facing two criminal cases, but yet he prayed before the Division Bench to pass order, thereby restraining the respondents from making promotion to the post of Deputy Commissioner(State Taxes & Excise), which prayer of him was allowed vide order dated 15.10.2022. However, as has been taken note hereinabove, once reason for not considering the petitioner for higher post came to be placed before the Court through reply filed by the respondents, order dated 15.10.2022 was withdrawn vide order dated 19.07.2024 (Annexure P-8). No doubt, after 15.10.2022, respondents could not have carried out any promotion to the post of Deputy Commissioner(State Taxes & Excise) without the leave of the Court, but such omission, if any, on behalf of the respondents cannot be valid ground to withdraw the order of 11 promotion made in favour of the petitioners vide order dated 22.5.2024, especially when it is quite apparent from the pleadings adduced on record by the respective parties that on the given date petitioners were fully eligible to be promoted against the post of Deputy Commissioner and person namely Sh. Jyoti Swarup Sharma was not only ineligible for promotion against the post in question , rather he stood superannuated on the given date. 10. Needless to say right of Sh. Jyoti Swarup Sharma for promotion to the post of Deputy Commissioner(State Taxes and Excise) was only upto 31.03.2023, on which date, he was superannuated. However, in the instant case meeting of Departmental Promotion Committee was held in the month of November 2023, whereby it proceeded to recommend the case of the petitioners for promotion to the post of Deputy Commissioner (State Taxes & Excise). 11. Leaving everything aside, as per own case of the respondents, petitioners are fully eligible to be promoted against the post of Deputy Commissioner(State Taxes & Excise), respondent- Department though proposes to hold fresh meeting of Departmental Promotion Committee for their promotion, but no time line has been fixed. In case aforesaid plea of the respondents is accepted, great prejudice shall be caused to the petitioner No.1, who is otherwise 12 going to retire on 31.03.2025. Once it is apparent from the record that petitioner No.1 alongwith petitioner No.2 had become eligible for promotion to the post of Deputy Commissioner(State Taxes & Excise) in the month of November, 2023 and their names were recommended by the Departmental Promotion Committee, there is no occasion, if any, for the respondents to further delay the promotion, especially when in that regard order already stood passed on 22.05.2024. 12. Consequently, in view of the above, this Court finds merit in the present petition and accordingly same is allowed. The order dated 22.05.2024 (Annexure P-9) is quashed and set-aside being patently illegal, arbitrary, discriminatory and unconstitutional and petitioners are deemed to be promoted w.e.f.20.11.2023. Pending applications, if any, also stand disposed of. (Sandeep Sharma), Judge March 27,2025 (shankar)