( 2026:HHC:18482 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWPOA No.1646 of 2019 Decided on: 19th May, 2026 S.C. Sharma through his LRs Madhu Sharma and others. ...Petitioners versus State of H.P. and others ...Respondents Coram Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge. Whether approved for reporting?1 For the petitioners: Mr.Bhuvnesh Sharma, Senior Advocate with Ms.Vishali Lakhanpal, Advocate. For the respondents: Mr.Anup Rattan, Advocate General with Mr.Sumit Sharma, Deputy Advocate General for respondents No.1 to 3. Mr.Vijay Chaudhary, Advocate for respondent No.4. Jiya Lal Bhardwaj, Judge (Oral) The original petitioner, by way of present petition, had prayed for the following substantive reliefs:- “a) That D.P.C. proceeding dated 23.12.2009 (Annexure P- 7) and the impugned promotion order qua the respondent No.4 to the post of Chief Engineer (Civil) issued vide Notification dated 08.01.2010 (Annexure P-4) may be quashed and set aside. b) That ACR entry of the petitioner for the year 2005-2006 (Annexure P-8) regarding downgrading of his ACR may be quashed and grading of ACR of petitioner for the 1 Whether the reporters of Local Papers may be allowed to see the judgment? ( 2026:HHC:18482 ) 2 year 2005-2006 may be ordered to be treated as Very Good for all intents and purposes and the respondents may be directed to hold Review D.P.C. with respect to the D.P.C. held on 23.12.2009 and to consider the case of petitioner afresh for promotion to the post of Chief Engineer (Civil) in Public Works Deptt. and if found fit, the respondents may be directed to order such promotion from due date with all consequential benefits in his status, pay and pension etc. due and admissible may be ordered to be granted to him in a time-bound schedule.” 2. The facts, as emerged from the pleadings, are that the petitioner was eligible for promotion to the post of Chief Engineer. The meeting of the Departmental Promotion Committee (in short DPC) was held on 23.12.2009 and the name of petitioner was also considered. Since the petitioner was assessed as ‘Good’ by the DPC on evaluating his ACRs available for the last five years, respondent No.4, who was senior to him and one Shri Sunil K. Sharma, who was junior to him having assessed as ‘Very Good’ on the basis of their ACRs, were promoted to the posts of Chief Engineer vide Notification dated 08.01.2010 (Annexure P-4). 3. The grievance of the petitioner is that he was never communicated the ACRs and, therefore, non- communication of the same has caused injustice to him inasmuch those ACRs where he was assessed as ‘Good’ and ‘Average’ could not have taken into account as per the law laid down by the Hon’ble Supreme Court in Dev Dutt vs. ( 2026:HHC:18482 ) 3 Union of India (2008) 8 SCC 725. Further, his ACR for the year 2008-2009 was not made available ostensibly to the DPC and he acquired the knowledge of his ACRs after the promotion orders were issued in favour of respondent No.4 and Shri Sunil K. Sharma. 4. Respondents No.1and 3 filed reply to the petition and averred that the DPC was convened on 20.05.2009 for promotion to the post of Chief Engineer and nine Superintending Engineers were in the zone of consideration, including the petitioner at Serial No.5 and respondent No.4 at Serial No.1. The DPC after evaluating the ACRs had assessed the petitioner and respondent No.4 as ‘Good’ and the remaining officers were assessed as ‘Very Good’. 5. In the meeting of DPC again convened on 23.12.2009 for promotion to the posts of Chief Engineer, six Superintending Engineers were in the zone of consideration, including the petitioner at Serial No.2 and the DPC after evaluating the ACRs assessed him as ‘Good’ and the remaining officers in the zone of consideration, including respondent No.4 were assessed as ‘Very Good’. It has further been averred that overall grading of the petitioner was assessed as ‘Good’ by the DPC and since the petitioner was ( 2026:HHC:18482 ) 4 assessed as ‘Good’ by the DPC’s held on 20.05.2009 and 23.12.2009, the post of Chief Engineer being a selection post, which is to be filled up on merit-cum-seniority, respondent No.4 being assessed as ‘Very Good’ in DPC held on 23.12.2009 had superseded the petitioner. The respondents have not disputed the seniority of the petitioner, but he was not promoted to the post of Chief Engineer only on the ground that the petitioner was assessed as ‘Good’ by the DPC. 6. The petitioner has placed on record minutes of proceedings of the DPC held on 23.12.2009(Annexure P-7) and as per the same, the petitioner was assessed as ‘Good’ From 09/03 to 08/04 and very good for 09/04 to 03/05 and again ‘Good’ for the year 2005-06, 2006-07 and ‘Good’ for 04/07 to 10/07. There was no ACR for the year 2008-09. Since the petitioner was given Good, except for some period as Very Good in the ACR for the preceding five years and there was no ACR for the year 2008-09, the DPC had assessed overall him as ‘Good’ and due to this reason, he was not promoted to the post of Chief Engineer. The other persons such as respondent No.4 and one Shri Sunil Kumar Sharma, who were assessed as ‘Very Good’, they were promoted to the ( 2026:HHC:18482 ) 5 post of Chief Engineer, as per Notification dated 08.01.2010 (Annexure P-4). 7. Respondent No.4 filed separate reply and averred that he has already filed a petition and the petitioner was sleeping over his right. Further, his reply was also on the similar lines as that of respondents No. 1 and 3. 8. I have heard the learned counsel for the parties and also perused the record carefully. 9. It is not in dispute that respondent No.4 was senior to the petitioner. The claim put-forth by the petitioner that the person junior to him, namely, Sunil Kumar Sharma has been promoted, but he has not impleaded as party respondent in the present petition. No doubt, the respondents-State could not have ignored the petitioner on the basis of ACRs having been assessed as ‘Good’, but since there were only two posts of Chief Engineer and respondent No.4 being senior to the petitioner and assessed as ‘Very Good’, no grievance can be raised against him. The petitioner’s grievance was only against the promotion of Shri Sunil Kumar Sharma, who admittedly has not been impleaded as party respondent in the present case. It is settled law that no orders can be passed against a person, ( 2026:HHC:18482 ) 6 who is to be affected by the orders, ultimately to be passed by the Court. It is evident from a perusal of minutes of the meeting held on 23.12.2009 that only two posts were to be filled in, one was a clear cut vacancy and another anticipated vacancy caused due to the placement of Chief Engineer to the post of Engineer-in-Chief, Quality Control and Design. Since the petitioner had not been impleaded the other person, who had been promoted as per Notification dated 08.01.2010 and junior to him, no relief could have been granted to the petitioner. 10. The Hon’ble Supreme Court has time and again held that the affected party has to be impleaded so that the doctrine of ‘audi alterm partem’ is not put into any hazard. In this regard, reference can be made to the judgment of the Hon’ble Supreme Court in Vijay Kumar Kaul and others vs. Union of India and others (2012) 7 SCC 610, wherein the principles propounded in the earlier judgments have also been considered in detail and has concluded as under:- “36. Another aspect needs to be highlighted. Neither before the tribunal nor before the High Court, Parveen Singh and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant. ( 2026:HHC:18482 ) 7 37. In this context we may refer with profit to the decision in Indu Shekhar Singh v. State of U.P. wherein it has been held thus: (SCC p.151 para 56) “There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority.” 38. In Public Service Commission, Uttaranchal v. Mamta Bisht this Court while dealing with the concept of necessary parties and the effect of non- impleadment of such a party in the matter when the selection process is assailed observed thus: (SCC pp. 207-08, paras 9-10) “9. ……. In Udit Narain Singh Malpaharia v. Board of Revenue wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provides that non- joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat; Babubhai Muljibhai Patel v. Nandlal, Khodidas Barot and Sarguja Transport Service v. STAT.) 10. In Prabodh Vermav. State of U.P. and Tridip Kumar Dingal. v. State of W.B., it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.” ( 2026:HHC:18482 ) 8 39. From the aforesaid enunciation of law there cannot be any trace of doubt that an affected party has to be impleaded so that the doctrine of audi alteram partem is not put into any hazard.” 11. Learned senior counsel for the petitioner has vehemently argued that the petitioner was not required to array the affected parties, since he had no grievance against him and placed reliance upon the judgment of the Hon’ble Supreme Court in Prabhu Dayal Khandelwal vs. Chairman, Union Public Service Commission and others (2015) 14 SCC 427. I have gone through the judgment. The ratio laid down in the said judgment is not attracted in the facts of the present case for the simple reason that in the present case, the petitioner has not impleaded another person, who was junior to him and promoted vide Notification dated 08.01.2010. In the aforementioned judgment, there was no issue with respect to the non-impleadment of person who being junior was promoted. As already held above, since there were only two posts of Chief Engineers, against which, respondent No.4 and one Shri Sunil Kumar Sharma were promoted, the petitioner could have been granted promotion, if the appointment of another person was quashed. This Court could have given direction to re-consider the case of the ( 2026:HHC:18482 ) 9 petitioner, since he was not communicated about the ACRs, which were assessed as ‘Good’, but his candidature could have been considered only against the post filled up by Shri Sunil K. Sharma. No doubt, the respondents-State has committed illegality by not communicating the ACRs to the petitioner, on the basis of which, he has been assessed by the DPC overall as ‘Good’ and had he been given the ACRs as ‘Very Good’, he would have been assessed as ‘Very Good’ and would have been recommended for promotion to the post of Chief Engineer in the proceedings of the DPC convened on 23.12.2009, but since there were only two posts of Chief Engineers and the person, who is junior to the petitioner, namely, Sunil Kumar Sharma has been recommended for promotion and ultimately promoted vide Notification dated 08.01.2010, no relief can be granted to the petitioner in his absence. The Court ordinarily cannot ask the State to create the post for promotion and it can be done only in exceptional circumstances, but it is not a case, where this Court deems fit to direct the petitioner to be considered for promotion. Moreover, the petitioner has now died and his legal representatives are pursuing the cause. 12. No other points have been raised. ( 2026:HHC:18482 ) 10 13. Consequently, I do not find any merit in the present petition and the same is accordingly dismissed. However, there shall be no orders to cost and the pending applications, if any, also stand disposed of. ( Jiya Lal Bhardwaj ) 19th May, 2026 Judge (naveen)