STATE OF H.P. AND ORS.versusSURINDER KUMAR MOHLNDRA AND ORS.

A                      STATE OF H.P. AND ORS.
                                 v.
                SURlNDER KUMAR MOHlNDRA AND ORS.

                             NOVEMBER 7, 1996

B              [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

         Service Law :

         Promotion-To the post of Joint Director-Criteria for promotion-
C Merit with due regard to seniority-And completion of requisite length of
    service in feeder grade-Zone of consideration limited to five times the
    number of expected vacancies within a year-Question of promotion to
    saidpost considered on three different occasions-On first occasion employee
    did not come within zone of consideration-On second occasion came
    within zone of consideration bui did not complete prescribed length of
D   service in feeder grade-On third occasion he had superannuated-Held:
    In such circumstances, non-promotion ofemployee to post ofJoint Director
    did not infringe Art. 16-Constitution of India, 1950, Art. 16.

        The respondent was employed as Agriculture Inspector and was
  promoted to a Class I post. The Departmental Promotion Committee
E (DPC) considered the cases for promotion to the post of Joint Director
  (Agriculture) but respondent's case was not considered as in
  accordance with the rules and on the basis of his seniority he did not
  come within the zone of consideration. The respondent filed an
  application before the State Administrative Tribunal challenging the
F aforesaid decision of the DPC. The Tribunal directed th·e appellant to
  reconsider the case of promotion of the respondent with retrospective
  effect. Being aggrieved the appellant preferred the present appeal.

          Allowing the appeal, this Court

G
         HELD: I.I. The question of promotion to the post of Joint
    Director was considered on three different occasions. The criteria for
    promotion was merit with due regard to seniority and completion of
    the prescribed length of service in the feeder grade. Zone of
    consideration was limited to five times the number of vacancies expected
H   within a year. [568 B-EI
                                        564
           STATE OF H.P. v. S.K. MOHINDRA [PATTANAIK, J.]               565


      1.2. On the first occasion, the respondent did not come within           A
the zone of consideration and, therefore, was not considered for
promotion. On the second occasion the respondent came within the
zone of consideration and his case was considered by the Departmental
Promotion Committee but as the respondent did not have the
prescribed length of service in the feeder grade he was not promoted.
On the third occasion the respondent was no longer available as he             B
had already superannuated. In such circumstances, non-promotion
of the respondent to the post of Joint Director did not infringe the
constitutional rights guaranteed under Article 16 of the Constitution.
                                                            (568 A-El

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14222 of                C
1996.

    From the Judgment and Order dated 6.8.93 of the Himachal Pradesh
Administrative Tribunal, Shimla in T.A. No. 333 of 1986.

      J.S. Attri for the Appellants.                                           D
      Himinder Lal for the Respondents.

     The Judgment of the Court was delivered by :

      PATTANAIK, J. This appeal by Special Leave is directed against           E
the judgment of the Himachal Pradesh Administrative Tribunal. By the
impugned judgment the Tribunal called upon the State to consider
promotion of respondent no. I to the post of Joint Director alongwith others
as on 15.6.1979 and if is found suitable to give notional promotion to him
by creating supernumerary post with ali consequential benefits without
reverting the persons already promoted.                                        F
      Admittedly, respondent no.I was employed as Agriculture Inspector
on 19.5.1949 and he was promoted to a post in Class II on probation on
13.9.1957. He was confirmed against the said post on 15.6.1966 and was
promoted to Class I post on 22.1.1976. He had filed a representation G
claiming his seniority taking his length of service from the continuous
date of his appointment and that representation having been allowed on
30.11.1973 bis seniority was re-fixed. Consequent upon refixation of his
seniority by order dated 4.9.76 he was granted notional promotion to
Class II with effect from 13.9.57 with all consequential benefits. The
Departmental Promotion Committee by its report dated 21.4. 79 H
    566                     SUPREMECOURTREPORTS [1996] SUPP. 8 S.C.R.


A recommended the case of respondent no. I for promotion to Class I with
  retrospective effect from 17 .12.1973 on the basis of his seniority below
  Shri S.S. Saini and aoove Shri V.P. Sobti. The Departmental Promotion
  Committee met on 15.6.79 to consider the case of promotion to the post
  of Joint Director (Agriculture) but respondent no.l's case was not
  considered as in accordance with the rules and on the basis of his seniority
B he did not come within the zone of consideration. Challenging the said
  action respondent no.I tiled a Writ Petition in the High Court claiming
  the seniority above Shri S.S. Saini. Prior to the aforesaid filing of the
  Writ Petition by order dated 29.1.1980, the State Government had fixed
  the seniority of respondent no.I below Shri Charanjit Singh and above
  Dr. L.D. Sharma after due consultation with the State Public Service
C Commission. Shri V.P. Sobti, who had been directly recruited to Class I in
  the year 1962 could not be held to be junior to respondent no. I, even on
  the basis ofre-considered seniority of respondent no. I. Against this decision
  of the State Government respondent no.I had filed a representation to the
  State Government. The Government revised its earlier decision by order
  dated 24.9.80 proposing to fix up the seniority of respondent no.I below
D Shri I.S. Kingraand above Dr. Charanjit Singh. Accordingly the respondent
  no. I amended the Writ Petition earlier tiled. The State Government filed
  its counter-affidavit stating therein that in view of the re-determined
  seniority ofrespondent no. I there ~as been a direction for reconsideration
  of his promotion with effect from the date when his juniors were promoted
  and pursuant to the said direction respondent no. I was granted retrospective
E promotion to Class II with effect from 13.9.57 and to Class I with effect
  from 17.12.1973. The gradation list of Class I officers other than Joint
   Director of Agriculture was finalised on 6.12.1980 wherein respondent
   no.I was shown above Dr. Charanjit Singh and below Shri LS. Kingra.
   During the pendency of the Writ Petition Administrative Tribunal having
   been constituted, the matter was transferred to the State Administrative
F Tribunal, Himachal Pradesh. The State Tribunal by the irnpuged judgment
   dated 6.8.93 having directed the appellant to reconsider the case of
   promotion of the respondent no. I with retrospective effect, the present
   appeal has been preferred.

G       The stand of the appellant in this appeal is that in accordance with
  the prevalent rules and taking into consideration the revised seniority of
  respondent no. I his case for promotion has been considered when it fell
  due and as such the impugned direction is unsustainable in law. In this
  appeal respondent no. I alone contested and in the reply affidavit it has
  been urged that gross injustice has been meted out to the respondent by the
H State Government, his case for promotion not having been considered at.
               STATE OF H.P. v. S.K. MOHINDRA [PATTANAIK, J.]               567


     appropriate time and he not having been given his due seniority. It has        A
     been further stated that Tribunal having done justice by directing the State
     to re-consider the case of promotion of respondent no. I it would not be
     proper for this Court to interfere with the said direction in exercise of
     powers under Article 136 of the Constitution. It has also been averred in
     the reply affidavit that respondent no. I having been duly appointed to the
     cadre on 19.5.1949 and other respondents though appointed on different         B
     dates to the post outside the cadre in 1949 but were regularised only during
      1950. All of them should have been treated junior to respondent no. I but
     unfortunately the State Government treated them senior to respondent
     no.I which ultimately resulted gross injustice throughout his career and
     promotional avenues were denied to him when it fell due. In this view of
     the matter the Tribunal has rightly directed for re-consideration of the       C
     question of promotion.

            In view of the rival stand of the parties the only question that arises
     for consideration is whether in accordance with the relevant rules in force
     the question of promotion of respondent no. I has been considered by the
     competent authority or there has been any infringement of the said right D
     of respondent no. l c lt is the settled position that under the scheme of the
     Constitution an employee has a right of consideration and not a right of
     promotion unless the rules of promotion indicate that. the promotion is on
     the basis of seniority alone. While hearing this case on 2.9.96 this Court
     had called upon the appellant to file an affidavit duly sworn to by a
     competent officer indicating the date on which the claim for promotion to E
     the post of Joint Director of the respondent no. I was considered and the
     criteria prescribed for consideration of promotion as well as the number
     of posts available in the promoted cadre and the principles adopted by the
     Departmental Promotion Committee for considering the cases of
     promotion. The Court also called upon the appellant to produce the relevant
     records. Pursuant to the aforesaid direction an affidavi\ has been filed and F
     the relevant records of the Departmental Promotion Committee have also
     been produced. lt appears from the proceedings of the Departmental
     Promotion Committee as well as other material/documents on record that
     the question of promotion to the post of Joint Director was considered on
     three occasions, namely, on 12.8.77, 15.6.79 and 26.8.81. The criteria for G
     promotion was merit with due regard to seniority. The Departmental
     Promotion Committee was required to prepare a select List and the number
     of persons to be considered should extend to five times the number of
     vacancies expected within a year. Further after elimination of the persons
     unfit for promotion the persons should be classified as "outstanding", "Very
     good" and "Good" and the basis for such classification would be on annual H




ii
    568                      SUPREME COURT REPORTS [l 996] SUPP. 8 S.C.R.


A confidential reports of the employees for 3 to 5 years. In the meeting held
  on 12.8.77 and on the basis of the respective seniority as well as the criteria
  of 3 years regular service in the feeder grade only 13 officers were found
  eligible for being considered as against the two posts of Joint Director.
  Respondent no. I did not come within the zone of consideration and
  therefore, is not entitled to make a grievance that his case was not considered.
B In the next Departmental Promotion Committee meeting held on I 5th
  June, 1979 respondent no. I was no doubt within the zone of consideration
  and his case was considered by the Departmental Promotion Committee
  but in view of the requirement of3 years' service in the feeder grade and
  respondent no. I not having satisfied the said criteria, ultimately he was
  not promote<'. When the next meeting of the Departmental Promotion
C Committee was held on 26.8.1981 respondent no. I was no longer available
  to be considered as he had superannuated on 30.11.1980. In this view of
  the matter we have no hesitation to come to the conclusion that the Tribunal
  wholly erred in directing re-consideration of the question of promotion of
   respondent no. I. In view of our conclusion that respondent no.l's case for
   promotion to the post of Joint Director Agriculture has been considered in
D accordance with the rules and the criteria for promotion as well as in
  accordance with his seniority in the feeder grade and he has not been
   selected either because he did not come within the zone of consideration
   or because he did not fulfil the criteria of 3 years continuous service in the
   feeder grade, there has been no infringement of the constitutional right
   guaranteed under Article 16 of the Constitution.
E
         We accordingly set aside the impugned direction of the Tribunal and
    allow this appeal. TA No. 333 of 1986 stands dismissed but in the
    circumstances there will be no order as to costs.

F v.s.s.                                                        Appeal allowed.