RAMESH KUMAR & ORS. ETC. versus STATE OF HIMACHAL PRADESH & ORS. ETC. on 13 November 2021

RAMESH KUMAR & ORS. ETC.

v.

STATE OF HIMACHAL PRADESH & ORS. ETC.

(Civil Appeal Nos. 6649-6650 of 2021)

NOVEMBER 13, 2021

[M. R. SHAH AND SANJIV KHANNA, JJ.]

Service law: Promotion – Post of Accounts Officer(AO) –Promotion to the post of AO sought by direct recruits to the post ofAssistant Accounts Officer (AAO) – Requirement of passing SASPart II exam for promotion – Held: What is not required for thelower post, cannot be made applicable to the promotional post –When there was no requirement of passing SAS Part II examinationfor the lower post, i.e., post of AAO so far as direct recruits isconcerned, there cannot be any requirement of passing of the SASPart II exam for the promotional post of AO – After the appointmentas AAO either as a promotee or as a direct recruit, all shall be atpar – Thus, the requirement of passing of SAS Part II exam as perthe amended notification dated 02.01.2010 for the promotion tothe post of AO is arbitrary and illogical and rightly read down bythe High Court – High Court justified in holding that such arequirement shall be for the promotion from the post ofSuperintendent (D/A) to the post of AAO only and thus, not to beapplicable for promotion to the post of AO – Also, the High Courtrightly set aside the promotions of the AAOs junior to the directrecruitees-AAO and issued directions to the State Electricity Boardto consider them for promotion to the post of AO from the dates thepersons junior to them in the cadre of AAO were promoted to thepost of AO – Furthermore, on facts, there was no delay in filing thewrit petitions and also the prayer of the appellant, promotees to thepost of AOs to not to revert them cannot be accepted.

Dismissing the appeals, the Court

HELD: 1.1 Even as per the Regulation dated 01.11.2006,there was no requirement of passing SAS Part II examination forthe direct recruit AAOs. The requirement of passing SAS Part IIexamination was for the promotion from the post ofSuperintendent (D/A) to the post of AAO and for the promotion

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Ain the promotion quota. However, when the amended notificationdated 02.01.2010 came to be issued, it provided passing of SASPart II examination for the post of AO and the eligibility criteriawas minimum two years service as AAO and must have passedSAS Part II examination. As such for the post of AAO and as perthe Regulation dated 01.11.2006 as such there was noBrequirement of passing SAS Part II examination so far as directrecruits to the post of AAO are concerned. Requirement ofpassing SAS Part II examination was only for promotion to thepost of AAO from the post of Superintendent (D/A). For directrecruits as AAO, the only requirement was postgraduate degreeCin commerce. Therefore, it is not understandable requirement ofpassing of the SAS Part II examination for promotion to the postof AO. When there was no requirement of passing SAS Part IIexamination for the lower post, i.e., post of AAO so far as directrecruits is concerned, there cannot be any requirement of passingof the SAS Part II examination for the promotional post of AO.DAs such after the appointment as AAO either as a promotee oras a direct recruit, all shall be at par. Therefore, the requirementof passing of SAS Part II examination as per the amendednotification dated 02.01.2010 for the promotion to the post of AOcan be said to be arbitrary and illogical and the same is rightlyEread down by the High Court. What is not even required for thelower post, i.e., for the post of AAO so far as the direct recruitsis concerned, the same cannot be made applicable to thepromotional post of AO. The High Court is absolutely justified inholding that such a requirement shall be for the promotion fromthe post of Superintendent (D/A) to the post of AAO only andFconsequently shall not be applicable for promotion to the post ofAO. [Para 8.1][344-G-H; 345-A-F]

1.2 As regards the submission on behalf of the appellantsthat they were promoted to the post of AO in the year 2010 onwardsand their promotions have been set aside after long time andGtherefore in a petition filed in the year 2017, i.e., afterapproximately a period of 6-7 years, the High Court ought not tohave set aside the promotions of the appellants to the post of AOis concerned, it is required to be noted that till 2015, a litigationwas pending before this Court at the instance of the direct recruitsHand their status as regular employees as AAOs came to be determined by this Court pursuant to the decision of this Courtdated 13.01.2015 in Civil Appeal No. 390 of 2015. Only thereafterthey were issued the regular appointment orders and theirseniority was fixed and only thereafter the cause of action hasarisen to claim further promotion to the post of AO. Even whileallowing the appeals filed by the direct recruits, this Courtspecifically directed that they shall be treated as regularlyappointed AAOs w.e.f. the date of their initial appointment andthis Court specifically directed to provide the direct recruits withconsequential benefits including seniority etc. Thus, as such therewas no delay at all. [Para 8.2] [345-F-H; 346-A-B]

1.3 The prayer on behalf of the appellants that they maynot be reverted is concerned, cannot be accepted. If such a prayeris granted in that case, the effect of the impugned judgment andorder passed by the High Court which has been upheld would benullified. As a necessary consequence to the impugned judgmentand order passed by the High Court, now the entire list for thepromotion to the post of AO will have to be re-shuffled and thecases of the direct recruits are required to be considered forpromotion to the post of AO from the date on which their juniorcame to be promoted on the post of AO. Therefore, necessaryconsequences will have to be followed. If the prayer of theappellants not to revert them and to continue them on thepromotional post is accepted, in that case, there may arise manycomplications including the effect on the further promotional postsfrom the post of AO to Senior AO and thereafter to the post ofDy. CAO/Dy. CA/Dy. FA, therefore, the said prayer is rejected.[Para 8.3][346-C-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6649-6650 of 2021.

From the Judgment and Order dated 04.03.2020 of the High Courtof Himachal Pradesh, Shimla in CWPOAs Nos.11 and 12 of 2019.

With

Civil Appeal Nos. 6652 and 6651 of 2021.

P. S. Patwalia, Sr. Adv., Abhinav Mukerji, Ms. Pratishtha Vij,Mrs. Bihu Sharma, Akshay C. Shrivastava, Ms. Harshika Verma, TusharBakshi, E. C. Agrawala, Abhinav Agrawal, Rajiv K. Virmani, Rajesh AB

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AKumar, Ms. Swati Bhardwaj, D. Bharat Kumar, Tadimalla BhaakarGowtham, Aman Shukla, Gopal Jha, Rahul G. Tanwani, Siddhartha Sinha,Hatindra Manda, Dasari Muralee Mohan, Rajesh Kumar Gautam, AnantGautam, Nipun Sharma, Ravi Solanki, Manish Kumar, Vijay Kumar, RahulDev, Advs. for the appearing parties.

BThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Himachal Pradesh dated04.03.2020 passed in CWP No. 11 of 2019 and CWP No.12 of 2019 byCwhich the High Court has allowed the said writ petitions preferred bythe private respondents herein – original writ petitioners by which theHigh Court has set aside the promotions of the Assistant AccountsOfficers junior to the original writ petitioners and has directed theHimachal State Electricity Board Limited (hereinafter referred to asD“the Board”) to consider the original writ petitioners for promotion to thepost of Accounts Officers from the dates from which the persons juniorto them in the cadre of Assistant Accounts Officers (hereinafter referredto as “AAO”) were promoted to the post of Accounts Officers(hereinafter referred to as “AO”), the original private respondents aswell as the Board have preferred the present appeals.

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2. That the dispute is related to the promotion to the post of A.O.Once again the dispute is between the direct recruits and the promotees.That earlier the post of AAO was a promotional post to be filled up100% by promotion from Superintendent (D/A), who have cleared SASPart-II examination. Similarly, the post of AO was a promotional post toFbe filled up 100% by promotion from the post of AAO. In the year 2006the Regulations came to be amended and a provision was made fordirect recruitment for the post of AAOs. The respondents herein – originalwrit petitioners were the direct recruits to the post of AAO. Initially,they were appointed on contract basis though their appointments wereGafter following due procedure of selection. The appellants herein – originalrespondents are the promotees to the post of AAO.

2.1 As per the amended Regulations dated 01.11.2006, for thepost of AAOs 30% posts were reserved for direct recruits and 70% forpromotion. The educational qualification required for the direct recruitsfor the post of AAO reads as under:-H

RAMESH KUMAR & ORS. ETC. v. STATE OF HIMACHALPRADESH & ORS. ETC.[M. R. SHAH, J.]

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2.2 Thus, there was no requirement of passing SAS Part II examso far as the direct recruits for the post of AAO is concerned. Thedispute arose as to whether the direct recruits though they were appointedafter following all procedure of selection including recommendation ofthe Public Service Commission and were continuing in service sincelong, they can be said to be regularly appointed or not. The dispute endedin the year 2015 in view of the decision of this Court in Civil Appeal No.390 of 2015 in which this Court directed the Board to provide letter ofregular appointment to those direct recruits – original writ petitionersherein w.e.f. the date of their initial appointment treating the initial twoyears as on probation with further direction to provide them withconsequential benefits including regular scale of pay, increment, arrearsof pay, seniority etc. to which they were entitled under the law.

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2.3 That vide amendment notification dated 02.01.2010, the R&PRegulations to the post of Superintendent (D/A), Assistant AccountsOfficer, Accounts Officer etc. came to be issued and so far as the postof Accounts Officer is concerned, it provided as under:-

3. Accounts HPSEB/Sectt/1-06-10/75-ColuShould (i) 80% from FOfficer 59814-904 dated 29.10.1975 mn minimum amongst the (8550-and further amendment vide No. 6 service of AAO who have 14500) with notification No. HPSEB three years rendered initial start (Sectt)/106-10/R&E/96-as Asstt. minimum two of 9400/- 11671-871 dated 10.10.1996 Accounts years service as Officer. AAO & must have passed SAS Part-II (ii)20% by method Gof direct recruitment having degree of ICWA/ CA from recognizer Institute or on secondment basis.

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A2.4 On the basis of the aforesaid amended Regulation issued videnotification dated 02.01.2010, the appellants herein came to be promotedto the post of AO and thereafter to the post of Sr. AO. In view of theamended notification dated 02.01.2010, under which one of therequirement was that for the promotion to the post of AO (for 80%posts of AO), the AAOs must have passed SAS Part II exam, the directBrecruits AAOs were not promoted and/or their cases were consideredon the ground that they have not passed the SAS Part II exam. Afterdecision of this Court dated 13.01.2015 in Civil Appeal No. 390 of 2015by which the status of the private respondents herein the original writpetitioners – direct recruits came to be cleared, the private respondentsCherein – direct recruits AAO filed the writ petition before the High Courtchallenging the amendment notification dated 02.01.2010 under which itwas provided that for promotion to the post of AO, 80% promotionalquota was to be from AAOs, who have rendered minimum two yearsservice as AAO and must have passed SAS Part II exam. A consequentialrelief was also sought. By impugned judgment and order, the High CourtDhas allowed the said writ petitions and read down the words “must havepassed SAS Part II” prescribed against 80% promotion quota forpromotion to the post of Accounts Officer and directed that the same bemade applicable to the category of Superintendents (D/A) promoted asAAOs against 20% promotion quota prescribed for promotion from theEpost of Superintendent (D/A), who could not pass SAS Part IIexamination. Consequently, the High Court quashed the promotions ofthe AAOs - junior to the original writ petitioners – direct recruits anddirected the Board to consider the direct recruit AAOs for promotion tothe post of AOs from due dates from which persons junior to them in thecadre of AAOs were promoted.F2.5 The impugned judgment and order passed by the High Courtis the subject matter of the present appeals.

3. We have heard Shri P.S. Patwalia, learned Senior Advocateappearing on behalf of the appellants herein – promoted AAOs, whosubsequently came to be promoted as AOs and learned counsel appearingGon behalf of the Board and learned counsel appearing on behalf of theoriginal writ petitioners – direct recruit AAOs.

4. Shri Patwalia, learned Senior Advocate appearing on behalf ofthe promotee AAOs, who subsequently came to be promoted to the postof AOs pursuant to the amendment notification dated 02.01.2010 hasH

vehemently submitted that the High Court has not properly appreciatedthe object and purpose of providing passing of SAS Part II examinationfor promotion to the post of AO.

4.1 It is submitted that being a higher post, after due deliberation,a decision was taken by the Board to provide for passing of SAS Part IIexamination for the promotion to the post of AO.

4.2 It is submitted that initially the appointment to the post of AAOs/AOs were by way of promotion only and for the post of AAO, therequirement of passing of SAS Part II examination was mandatory. It issubmitted that thereafter when the Regulations came to be amended byproviding the quota for direct recruits, the Board thought it fit to alsoprovide for passing of the SAS Part II examination for promotion to thepost of AO from the post of AAO. It is submitted that number of chanceswere given to the direct recruits to pass the SAS Part II examinationand many of them cleared also. It is submitted therefore the requirementof passing SAS Part II examination for promotion to the post of AOought not to have been set aside by the High Court.

4.3 It is further submitted by Shri Patwalia, learned SeniorAdvocate appearing on behalf of the appellants-promotees that theappellants got the promotion in the year 2010/2012 pursuant to theamendment notification dated 02.01.2010 and even thereafter they gottheir further promotion and the writ petition was filed in the year 2017and therefore the High Court ought not to have set aside their promotionsto the post of AO and Senior AO after such a long time, more particularly,when they have worked on the promotional post for number of years. Itis submitted that as the appellants herein are working on the promotionalpost of AO since long, they may not be directed to be reverted and theirpromotions to the post of AO and their further promotion be protected.

5. Learned counsel appearing on behalf of the Board has supportedthe submissions as advanced by Shri Patwalia, learned Senior Advocateappearing on behalf of the appellants – promotees.

6. Present appeals are vehemently opposed by learned counselappearing on behalf of the direct recruits. It is submitted that as rightlyheld by the High Court, the amendment notification dated 02.01.2010under which it is provided that for promotion to the post of AO, thepassing of SAS Part II examination is must, is arbitrary. It is submittedthat the qualification required for the post of AAO, i.e., passing of SASPart II examination cannot be made applicable for promotion to the post AB

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Aof AO more particularly when there is no requirement of passing ofSAS Part II examination for direct recruit AAO. It is submitted thatafter appointment as AAO, either as promotee or direct recruits, allAAOs shall be at par. It is submitted that even there was no requirementof passing SAS Part II examination for direct recruits as AAOs. It issubmitted that therefore even when for appointment as direct recruitsBas AAOs, there was no requirement of passing SAS Part II examination,no such qualification of passing SAS Part II examination for promotionto the post of AO could have been imposed. It is submitted that thereforethe High court has rightly read down the amendment notification dated02.01.2010 by holding that the passing of SAS Part II examination shallCbe restricted for the promotion from the post of Superintendent (D/A) toAAO and shall not be applicable for promotion to the post of AO.

6.1 It is further submitted that as such if the amendment notificationdated 02.01.2010 as stood is made applicable, in that case, no directrecruits would get the promotion to the post of AO, as per the RegulationDunless they work for a particular period, they shall not be entitled toappear in the examination of even SAS Part II.

6.2 So far as the submission on behalf of the appellants that therewas a delay and therefore the High Court ought not to have set aside thepromotions is concerned, it is submitted that as such the direct recruitsEwere litigating before this Court and their appointments as regularappointments came to be made final pursuant to the judgment and orderdated 13.01.2015 passed by this Court in Civil Appeal No. 390 of 2015and thereafter the seniority list was prepared. It is submitted thatimmediately thereafter they filed the petitions. It is submitted thattherefore there was no delay at all.F7. We have heard the learned counsel appearing for the respectiveparties at length.

8. The issue which poses for consideration before this Court inthis case is the dispute with respect to the promotion to the post of AO.GOnce again the dispute is between the direct recruits and the promotees.

8.1 It is required to be noted that even as per the Regulation dated01.11.2006, there was no requirement of passing SAS Part II examinationfor the direct recruit AAOs. The requirement of passing SAS Part IIexamination was for the promotion from the post of Superintendent (D/A) to the post of AAO and for the promotion in the promotion quota.H

However, when the amended notification dated 02.01.2010 came to beissued, it provided passing of SAS Part II examination for the post ofAO and the eligibility criteria was minimum two years service as AAOand must have passed SAS Part II examination. As observed hereinabove,as such for the post of AAO and as per the Regulation dated 01.11.2006as such there was no requirement of passing SAS Part II examinationso far as direct recruits to the post of AAO are concerned. Requirementof passing SAS Part II examination was only for promotion to the postof AAO from the post of Superintendent (D/A). For direct recruits asAAO, the only requirement was postgraduate degree in commerce(reproduced hereinabove). Therefore, it is not understandable requirementof passing of the SAS Part II examination for promotion to the post ofAO. When there was no requirement of passing SAS Part II examinationfor the lower post, i.e., post of AAO so far as direct recruits is concerned,there cannot be any requirement of passing of the SAS Part II examinationfor the promotional post of AO. As such after the appointment as AAOeither as a promotee or as a direct recruit, all shall be at par. Therefore,the requirement of passing of SAS Part II examination as per the amendednotification dated 02.01.2010 for the promotion to the post of AO can besaid to be arbitrary and illogical and the same is rightly read down by theHigh Court. What is not even required for the lower post, i.e., for thepost of AAO so far as the direct recruits is concerned, the same cannotbe made applicable to the promotional post of AO. The High Court isabsolutely justified in holding that such a requirement shall be for thepromotion from the post of Superintendent (D/A) to the post of AAOonly and consequently shall not be applicable for promotion to the postof AO.

8.2 Now, so far as the submission on behalf of the appellants thatthey were promoted to the post of AO in the year 2010 onwards andtheir promotions have been set aside after long time and therefore in apetition filed in the year 2017, i.e., after approximately a period of 6-7years, the High Court ought not to have set aside the promotions of theappellants to the post of AO is concerned, it is required to be noted thattill 2015, a litigation was pending before this Court at the instance of thedirect recruits and their status as regular employees as AAOs came tobe determined by this Court pursuant to the decision of this Court dated13.01.2015 in Civil Appeal No. 390 of 2015. Only thereafter they wereissued the regular appointment orders and their seniority was fixed and AB

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Aonly thereafter the cause of action has arisen to claim further promotionto the post of AO.

At this stage, it is required to be noted that even while allowingthe appeals filed by the direct recruits, this Court specifically directedthat they shall be treated as regularly appointed AAOs w.e.f. the date ofBtheir initial appointment and this Court specifically directed to providethe direct recruits with consequential benefits including …………seniority etc. Thus, as such there was no delay at all as sought to becontended on behalf of the appellants.

8.3 Now, so far as the prayer on behalf of the appellants that theyCmay not be reverted is concerned, the aforesaid cannot be accepted. Ifsuch a prayer is granted in that case, the effect of the impugned judgmentand order passed by the High Court with which we agree shall be nullified.As a necessary consequence to the impugned judgment and order passedby the High Court, now the entire list for the promotion to the post of AOwill have to be re-shuffled and the cases of the direct recruits are requiredDto be considered for promotion to the post of AO from the date on whichtheir junior came to be promoted on the post of AO. Therefore, necessaryconsequences will have to be followed. If the prayer of the appellantsnot to revert them and to continue them on the promotional post isaccepted, in that case, there may arise many complications including theEeffect on the further promotional posts from the post of AO to SeniorAO and thereafter to the post of Dy. CAO/Dy. CA/Dy. FA, therefore,the aforesaid prayer is rejected.

9. In view of the above and for the reasons stated above, all theseappeals fails and are deserve to be dismissed and accordingly dismissed.FIn the facts and circumstances of the case, there shall be no order as tocosts. Pending applications, if any also stand disposed of.

Nidhi Jain

Appeals dismissed.

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