CWPOA/653/2019 on 15 October 2026

2026:HHC:46221

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No.653

of 2019

Decided on

: 15

th October, 2026

_______________________________________________________ Ghanshyam Chand Thakur

...Petitioner Versus State of Himachal Pradesh and others ...Respondents ________________________________________________________

Coram

Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 For the petitioner: Mr. Adarsh K. Vashista, Advocate. For the respondents: Mr. Hemant Kumar Verma, Deputy Advocate General. Jiya Lal Bhardwaj, Judge (Oral)

The petitioner by way of present petition has prayed for the following substantive reliefs:- “1. That a writ of the nature of certiorari may kindly be issued for quashing the order dated 24.12.2010 Annexure P-14.

2. That a writ of the nature of mandamus may kindly be issued for directing the respondents no.-1&2 to consider the petitioner for promotion to the post of Law officer (S.A.) from the due date.

3. That the unlawful promotion orders of respondent No. 9 dated 24.9.2005 Annexure P-3 ,may be quashed in the interest of justice.

4. The respondents no.-3 to 9 may kindly be held liable to compensate the petitioner to tune of Rs. 15 lakhs for having committed intentional , wilful and malafide acts of commission and ommission to deprive the petitioner of his lawful right of promotion to the post of Law Officer.”

Whether reporters of Local Papers may be allowed to see the judgment?

2. Shorn of unnecessary details, the key facts of the case are that respondent No.2 had issued a Memorandum dated 10.08.2005 (Annexure P/1) to fill up one post of Law Officer (English) in the pay scale of Rs.6400-10640/- in H.P. Secretariat from amongst the Clerical Cadre/Senior Assistants and the eligible employees working in the H.P. Secretariat, who were possessing the qualifications prescribed in the Memorandum and interested for being considered for the post, were requested to apply for the same within 15 days from the date of issuance of the Memorandum.

3. The petitioner being eligible, applied to the post of Law Officer (English) on 16.08.2005 and respondent No.9, who was also eligible, though applied, but according to the petitioner, he did not submit his application within the stipulated period.

4. Respondent No.2 convened a meeting of Departmental Promotion Committee (in short “DPC”) and on the basis of the recommendations made by the DPC, respondent No.9 was appointed as Law Officer (English), vide office order dated 24.09.2005 (Annexure P/3).

5. It has been averred in the petition that respondent No.9 had applied on 01.09.2005, though the date in the application was mentioned as 24.08.2005 (Annexure P/2), since the application submitted by him as diarized mentions the date of receipt as

01.09.2005. The petitioner received the information under the RTI Act, which reveals that the date of submission of the application was 01.09.2005, as per the REFNIC system introduced does not take a diary from back date.

6. The petitioner thereafter made a representation dated 04.10.2006, for taking disciplinary action against the Additional Secretary (SA) and the then Section Officer (SA-1) for tampering with the official record and for hatching a criminal conspiracy to deprive the petitioner of promotion to the post of Law Officer (English). The petitioner has also placed on record the noting sheets of respondent No.2-Department, a perusal of which, clearly reveals that respondent No.9 was though promoted as Law Officer (English) vide office order dated 24.09.2005, but he did not join on the promotional post and a request was received from the former Chief Minister (Sh. P.K. Dhumal) that respondent No.9, who is presently deployed with him be retained with me in his personal staff after his promotion as a special case. In the noting, it was also mentioned that in case respondent No.9 is retained with the former Chief Minister in his personal staff after his promotion as a special case, it will not be possible to provide Law Officer to the Law Department, as there is already shortfall of two Law Officers in the Law Department. This noting was made on 23.12.2005. However, later on, respondent No.9 was allowed to continue in the capacity of Law Officer (English) to work with the ex-CM. However, he was asked to submit his joining report to the Department in order to regularize his promotion on the post on which he has been promoted, so that any legal complication, if arises in future may be avoided.

7. It has also been averred in the petition that respondent No.9 did not join to the post of Law Officer (English) even till 17.04.2007 as per the minutes of proceedings of Law Department dated 17.04.2007. Thereafter, the petitioner was promoted by the respondents to the post of Law Officer (English), vide office order dated 27.06.2007 (Annexure P/7) in the pay scale of Rs.6400- 10640/- plus Rs.300/- Secretariat Allowance per month, purely on adhoc basis as a stop gap arrangement and the petitioner in sequel to the said order joined his duties. However, after more than a year, vide office order dated 16.07.2008 (Annexure P/8), the promotion order of the petitioner as Law Officer (English) on adhoc basis as a stop gap arrangement was withdrawn.

8. The petitioner, feeling aggrieved by the withdrawal of his promotion as per the office order dated 16.07.2008, made a representation to respondent No.3 on 25.09.2008 (Annexure P/9), requesting therein that the cancellation of withdrawal orders from back date may be cancelled and he may be permitted to serve on the post of Law Officer (English). Thereafter, other representations came to be made on 05.12.2008 and 19.12.2009, reiterating the same request. However, when nothing was done, the petitioner approached this Court by way of CWP No.3018 of 2009, titled, Ghanshyam Chand Thakur vs. State of H.P. and others, which was withdrawn by him with liberty to file a fresh petition on the same or similar cause of action.

9. After withdrawing the aforementioned petition, the petitioner again filed CWP No.5013 of 2009, titled, Ghanshyam Chand Thakur vs. State of H.P. and others, which came to be disposed of on 22.02.2010, directing the competent authority to look into the representations made by the petitioner, with notice to him and any other affected party and pass appropriate order within a period of three months on production of the copy of the order.

10. In sequel to the directions given by this Court on 22.02.2010, respondent No.3 passed a detailed order on 23.06.2010 (Annexure P/13), wherein the prayers made by the petitioner that the application of respondent No.9 was received after the stipulated period and further he may be promoted from the date when respondent No.9 was promoted w.e.f. 24.09.2005, were rejected. However, the order of reversion of the petitioner from the post of Law Officer (English) to Senior Assistant, without affording an opportunity to him, was held to be not correct and, therefore, directed that the matter be placed before the Cabinet for regularizing the initial appointment of the petitioner as Law Officer (English) on 27.06.2007 and further continuing the official on adhoc basis as Law Officer (English) till the date of his regular promotion i.e. 08.06.2010 in relaxation of R&P Rules. However, subsequently, vide office order dated 24.12.2010 (Annexure P/14), the successor- in-interest of earlier incumbent had reviewed the order and the representations made by the petitioner came to be rejected after taking note of the fact that he was promoted on adhoc basis against the post of Law Officer (English) that was vacant in Law Department of the Secretariat, which was actually required to be filed up against the direct recruitment quota. When the matter was referred to the Personnel Department for their concurrence, the Personnel Department directed that the Finance Department’s concurrence be obtained, which was declined twice advising respondent No.2 to proceed as per the Rules in the matter. Since the appointment of the petitioner was against the direct quota, the same was not valid and it was made without approval for relaxation in the R&P Rules. The HPPSC was also not consulted. Hence, respondent No.2 withdrew the order. Though the petitioner was not heard, but the adhoc promotion is only for six months and it was not mandatory to hear the petitioner before passing the order of withdrawal of promotion on adhoc basis dated 16.08.2008.

11. It was further observed that on 10.05.2010, the Cabinet approved the proposal of Secretariat Administration (SAD) that three posts falling in direct recruitment quota be filled by promotion as a one-time measure. A meeting of the DPC was held on 03.06.2010 to consider eligible persons for promotion as Law Officer (English) against two vacancies available in the year 2007 and one vacancy in 2010. The DPC held that none of the officials in the feeder category was eligible for promotion in the years 2007, 2008 and 2009 in accordance with the Rules. All these posts were therefore carried forward to the year 2010 and filled in accordance with the new Rules notified on 01.10.2009. The name of the petitioner was recommended by the Himachal Pradesh Public Service Commission (in short “HPPSC”) for promotion as Law Officer (English) for the vacancy falling in the year 2010 and appointed as such on 08.06.2010. In the year 2005, a single vacancy of Law Officer (English) was available to be filled by promotion, to which respondent No.9 was appointed w.e.f. 24.09.2005. Thereafter, the next vacancy became available on 27.06.2007, but this was for the direct recruitment quota. Another vacancy came up in 2010 and the petitioner became eligible for promotion only after amendment of the R&P Rules w.e.f. 01.10.2009 and when the vacancy for promotion became available after the Cabinet gave its approval for relaxation of the R&P Rules to allow the filling up of the vacancy relating to direct recruitment quota through promotion. Since there was no vacancy available in the year 2007 for promotion quota, the petitioner could not have been offered the appointment on 27.06.2007 and as such rejected the representations made by the petitioner.

12. The petitioner feeling aggrieved by the aforesaid order dated 24.12.2010 (Annexure P-14) passed by respondent No.3, has approached this Court inter alia on the grounds that in the first instance, respondent No.9 was not entitled to be considered for promotion to the post of Law Officer (English) due to the fact that he had not applied within the stipulated time and secondly, he failed to join the post of Law Officer (English). Further, respondent No.9 has illegally secured the issuance of the promotion order and as such the promotion order does not stand the scrutiny of law and is liable to be quashed and set aside. It has further been averred that the representation made by the petitioner to grant him promotion as Law Officer (English) from the back date i.e. 24.09.2005, from which the post effectively remained vacant in the

Department even after holding regular DPC has wrongly been denied and as such prayed for quashing of the order. It has also been averred that two posts of Law Officers (English) were lying vacant against direct recruitment quota since 1999 and if at all, respondent No.9 was to be adjusted, he could have been adjusted against one of those posts in relaxation of the Rules, but instead the petitioner has been made a target to suffer. Once the petitioner was appointed against the available vacancy, though available for direct recruit, he ought to have been granted the benefit from the said date and in not doing so, grave injustice has been caused to the petitioner and as such prayed for quashing the order dated 24.12.2010, whereby the representations made by the petitioner have been rejected with further direction to the respondents to consider the petitioner for promotion to the post of Law Officer from the due date.

13. Respondents No.1 to 6 and 9 filed joint reply to the petition and in preliminary submissions averred that the petition is not maintainable as no breach of fundamental rights, no injustice or irregularities have been committed by them by promoting respondent No.9 to the post of Law Officer (English). Further, the petitioner has not come to the Court with clean hands and has not only suppressed the material facts, but also misrepresented the facts in order to mislead the Court. He has not disclosed that respondent No.9 was senior to him right from the entry date and thus, he has rightly been promoted as Law Officer (English) on the recommendations of the DPC, being senior to the petitioner. The petitioner has further submitted that his representations with regard to the withdrawal of adhoc promotions were not considered, whereas his representations were duly considered and being devoid of merits, were rejected. The post of Law Officer (English) had fallen vacant during the year 2005, which was required to be filled up by promotion from amongst the eligible officers. Vide Memorandum dated 10.08.2005, options were invited from the eligible employees working in the H.P. Secretariat desirous to be considered for the post of Law Officer (English) within 15 days from the date of issuance of the same. Respondent No.9, who was working as Senior Assistant had submitted his option on 24.08.2005, being eligible for consideration for promotion. The option submitted by respondent No.9, was within the stipulated time.

14. As far as the matter regarding diarizing the said option on 01.09.2005 is concerned, the REFNIC entries are made only when the letter is seen and marked by the officers of the Department to the Dealing Assistant concerned. Therefore, the relevant date is the date when the option was received in the Department and not the date, on which the entry was made in the REFNIC system. In the DPC held on 14.09.2005, respondent No.9 being the senior most Senior Assistant and eligible to be appointed as Law Officer (English), was offered appointment after receipt of the recommendations by the DPC on 24.09.2005. However, the matter with regard to his posting remained under active consideration and finally, after the approval of the Hon'ble Chief Minister, he was directed on 27.01.2006 to join in the office of the Ex-Chief Minister. Respondent No.9 submitted his joining on 27.01.2006, which was duly forwarded by the then Ex-Chief Minister to the respondent-Department. Hence, the plea taken by the petitioner that respondent No.9 had not joined his duties as Law Officer (English) up to 17.04.2007 is not sustainable.

15. It has further been averred that the petitioner was promoted on adhoc basis as a stop gap arrangement to the post of Law Officer (English) on 27.06.2007 against the direct recruitment post without following the proper procedure. Neither the DPC meeting was convened nor the proposal of the Finance Department and the HPPSC was taken, which was mandatory. The approval of the Council of Ministers was mandatory for relaxation of Recruitment and Promotional Rules to fill up the direct recruitment post by means of promotion, which was not taken at any stage. Therefore, his adhoc promotion was void ab-initio. Further, as per instructions, adhoc promotions shall not continue for more than six months. In order to continue the adhoc promotion of the petitioner as Law Officer (English), the matter was referred to the Personnel Department for their concurrence, which directed to take the concurrence of the Finance Department. The matter was referred to the Finance Department twice, which rejected the proposal on 15.01.2008 and 06.09.2008. The Finance Department further advised the respondent-Department to proceed in accordance with the Rules and consequent upon this, the adhoc promotion given to the petitioner was withdrawn. In view of the above, no illegality or irregularity has been committed by the respondent Department and the writ petition preferred by the petitioner is not maintainable.

16. On merits, it has been averred that no irregularities had been committed by the respondents while withdrawing the promotion order dated 27.06.2007 since the appointment of the petitioner to the post of Law Officer (English) on adhoc basis was void ab-initio. However, in order to allow the petitioner to continue as Law Officer (English), the matter was referred to the Personnel Department for its concurrence, which directed to take the concurrence of the Finance Department. The matter was taken up with the Finance Department twice, who rejected the proposal and advised the respondent-Department to proceed as per the Rules. The representations made by the petitioners were duly considered and were found to be devoid of merits and as such prayed for dismissal of the writ petition.

17. I have heard the learned counsel for the parties and also perused the record carefully.

18. The first contention raised by the petitioner that respondent No.9 had not submitted the application within the stipulated period cannot be accepted for the reason that a perusal of the application dated 24.08.2005 (Annexure P/2), which was received by the S.O. on 25.08.2005 and Memorandum dated 10.08.2005 shows that 15 days’ time was given to the eligible employees to apply for the post of Law Officer (English) and the application was received within the stipulated period.

19. The second contention raised by the learned counsel for the petitioner that since respondent No.9 had not joined the Department till 17.04.2007, his joining could not have been permitted to be accepted. However, the said plea cannot be accepted for the reason that as per the reply filed by the respondents, it has specifically been averred that respondent No.9 had submitted his joining on 27.01.2006, which was duly forwarded by the then Ex-Chief Minister to the Department. Once respondent No.9 had submitted his joining on 27.01.2006, the plea taken by the petitioner that he did not join till 17.04.2007 is without any basis. The petitioner has not controverted the said stand taken by the respondents in the reply, since no rejoinder thereto has been filed.

20. Learned counsel for the petitioner has vehemently argued that once the petitioner was appointed as Law Officer (English) on adhoc basis as per office order dated 27.06.2007 (Annexure P/7), the subsequent office order dated 16.07.2008 (Annexure P/8) could not have been passed, withdrawing the earlier order, more especially when the post of Law Officer (English) was lying vacant. The said submission deserves acceptance for the reason that as per the noting placed on record by the petitioner, it was specifically mentioned that in case respondent No.9 is retained with the former Chief Minister in his personal staff after his promotion as a special case, it will not be possible to provide Law Officer to the Law Department as there is already shortfall of two Law Officers in the Law Department. Keeping in view the said fact, respondent No.2, who was the competent authority to offer appointment to the petitioner, had issued an office order dated 27.06.2007, thereby promoting him to the post of Law Officer (English) purely on adhoc basis as a stop gap arrangement with immediate effect, which was against the vacancy to be filled by direct recruit.

21. Respondent No.3, considering the said fact, had passed a detailed order on 23.06.2010 (Annexure P/13) on the representation made by the petitioner and also after the direction given by this Court in Ghanshyam Chand Thakur’s case (supra) on 22.02.2010, wherein it was specifically observed that the petitioner was promoted on 27.06.2007 as a Law Officer on adhoc basis as a stop gap arrangement in relaxation of the Rules, after obtaining the approval of the Chief Secretary. The petitioner was subsequently reverted, when the Finance Department did not agree to the proposal of SAD for continuing him on promotion against a post meant for direct recruitment.

22. It was further observed in the order that the petitioner was promoted to the post meant for direct recruitment, without obtaining the orders of the Cabinet to relax the Rules, but the order of reversion was made by respondent No.2 without getting the orders of Chief Secretary and without affording an opportunity to him, which order goes against the principles of natural justice and thus directed that the matter be placed before the Cabinet for regularizing the initial appointment of the petitioner as Law Officer (English) on 27.06.2007 and for further continuing the official on adhoc basis as Law Officer (English) till the date of his regular promotion on 08.06.2010, in relaxation of the R&P Rules for the post of Law Officer (English). However, the new incumbant as respondent No.3, took a a summersault and came to the conclusion that it was not mandatory for respondent No.2 to hear the petitioner before passing the order regarding withdrawal of promotion on adhoc basis on 16.07.2008. The matter was placed before the Cabinet on 19.10.2010, when it was approved that respondent No.3 may decide the matter afresh by affording an opportunity to the petitioner against the withdrawal of his promotion.

23. Respondent No.3 while rejecting the claim of the petitioner, observed that on 10.05.2010, the Cabinet had approved the proposal of SAD that three posts falling in direct recruitment quota be filled by promotion as a one time measure. The DPC held that none of the officials in the feeder category was eligible for promotion in the years 2007, 2008 and 2009 in accordance with the Rules and all the posts were carried forward to the year 2010 and filled in accordance with the new Rules notified on 01.10.2009. The petitioner was recommended by the HPPSC for promotion as Law Officer (English) for the vacancy falling in 2010 and appointed as such on 08.06.2010.

24. Though it has been noticed that two vacancies were available in the year 2007, but none was eligible for promotion in the years 2007, 2008 and 2009. A single vacancy of Law Officer (English) was available to be filled by promotion, to which, respondent No.9 was appointed w.e.f. 24.09.2005. Thereafter, the next vacancy became available on 27.06.2007, but this was for the direct recruitment quota. Another vacancy came up in 2010 and the petitioner became eligible for promotion only after amendment in the R&P Rules w.e.f. 01.10.2009 and when the vacancy for promotion became available after the Cabinet gave its approval for relaxation of the R&P Rules. Since there was no vacancy available in the year 2007 for promotional quota, the petitioner could not have been offered appointment on 27.06.2007, and as such his representation came to be rejected.

25. Once respondent No.3 in its earlier order dated 24.12.2010, had admitted that there was one post of direct recruitment quota available as on 27.06.2007 and respondent No.2 had promoted the petitioner as Law Officer (English) against that post, the subsequent order dated 16.07.2008 to withdraw the promotion of the petitioner on adhoc basis is not justified, more particularly when the Department in its noting dated 23.12.2005 had clearly and in unequivocal terms mentioned that in case respondent No.9 as Law Officer is retained with the former Chief Minister in his personal staff after his promotion as a special case, it will not be possible to provide Law Officer to the Law Department as there is already shortfall of two Law Officers in the Law Department.

26. Respondent No.2 to cope up with the necessity to deploy the Law Officer, had issued the office order dated 27.06.2007, since respondent No.9 was serving with the Ex-Chief Minister and once the vacancy was available though for direct recruit, the subsequent withdrawal order dated 16.07.2008, that too, without issuing the show cause notice to the petitioner and also permitting the petitioner to serve for more than one year was not justified. Further, the action on the part of respondent No.3, while issuing the office order dated 24.12.2010 rejecting the claim of the petitioner is also illegal, more especially when the Cabinet had not directed respondent No.3 to take a different view as taken earlier by his predecessor-in-interest. Therefore, the order dated 24.12.2010 passed by respondent No.3, rejecting the claim of the petitioner, is unsustainable.

27. Learned Deputy Advocate General has placed reliance upon the judgment passed by the Division Bench of this Court in LPA No.317 of 2026, titled Salochna Devi vs. H.P.S.E.B.L and contended that the petitioner is not entitled to any relief since he has been appointed to the post of Law Officer on 08.06.2010 and he cannot be assigned the seniority from the date of his adhoc promotion. However, the said judgment is not applicable to the facts of the present case for the reason that the Court had come to the conclusion that numerous persons were appointed as Clerks by way of direct recruitment and promotion between 28.06.1991 and 17.11.1995, who had not been added as party respondents. However, in the present case, no person has been appointed in between the date of adhoc promotion of the petitioner w.e.f. 27.06.2007 till his regular appointment to the post of Law Officer (English) on 08.06.2010 and thus, the aforementioned judgment is not attracted to the facts of the present case.

28. Learned Deputy Advocate General has further vehemently argued that since no concurrence was taken by respondent No.2, while offering appointment to the petitioner of the Finance Department and the promotion order dated 27.06.2007 was issued without getting the orders of the competent authority i.e. the Cabinet, to relax the provisions of the Rules, the petitioner is not entitled for any relief. However, the said contention cannot be accepted for the reason that while the order of reversion was issued by respondent No.2, vide office order dated 16.07.2008, he had not taken the approval of respondent No.3 and further an opportunity of hearing was also not afforded to him, which order thus was against the principles of natural justice. This fact was taken care of by respondent No.3, when it had passed the order on 23.06.2010, directing respondent No.2 to place the matter before the Cabinet for regularizing the initial appointment of the petitioner as Law Officer on 27.06.2007 and further continuing him on adhoc basis as Law Officer (English) till the date of his regular promotion i.e. 08.06.2010.

29. Once respondent No.3 had earlier passed an office order on 23.06.2010, the new incumbent could not have taken a different view while rejecting the claim of the petitioner to regularize the period of service rendered by the petitioner as Law Officer (English) from the date of adhoc appointment. Respondent No.2 had offered the appointment to the petitioner on adhoc basis keeping in view the requirement of Law Officer, that too, against vacancy of direct recruit. Therefore, rejecting the claim of the petitioner from the date of offering him appointment on adhoc basis as Law Officer (English) is unjustified and as such the order dated 24.12.2010 passed by respondent No.3 to deny regularization from the initial appointment of the petitioner as Law Officer (English) on 27.06.2007 till 08.06.2010 is arbitrary, discriminatory, and unjust.

30. Consequently, the present petition is disposed of and the order dated 24.12.2010 (Annexure P-14) is quashed to the extent that the petitioner is held entitled to count his period of service as Law Officer (English) w.e.f. 27.06.2007 along with all consequential benefits and respondent No.2 is directed to regularize the initial appointment of the petitioner w.e.f. 27.06.2007 within a period of three months from today. Pending application(s), if any, shall also stand disposed of.

th October, 2026

( Jiya Lal Bhardwaj ) (ankit) Judge