Judgment:
Deepak Gupta, J.
1. The aforesaid three writ petitions are being disposed of by one common judgement since common questions of law and fact are involved in all the cases.
2. Briefly stated the facts of the case are that Shri Surinder Mohan Kochhar (here-in-after referred to as the petitioner) was appointed as Architectural Assistant in the H.P. Housing Board (here-in-after referred to as the Board) on 29th May, 1976. According to him after completion of 10 years of service he was entitled to grant of selection grade w.e.f. 30th May, 1986. The petitioner represented to the Board to grant of selection grade. The Board recommended the case of the petitioner for grant of selection grade to the State. However, the State rejected the case of the petitioner on 10th August, 1990. The petitioner again filed a representation and the claim of the petitioner was finally rejected on 30th July, 1992. Thereafter, the petitioner filed O.A. No. 1351 of 1992 in the erstwhile H.P. State Administrative Tribunal praying that he be granted selection grade w.e.f. 30th May, 1986. This petition was contested by the Board as well as by the State on various grounds, the main ground being that selection grade is to be provided only where the promotional posts taken together are less than half the strength of the cadre in which the petitioner is working.
3. According to the Board there were two posts of Assistant Architect and one of them was admittedly upgraded w.e.f 5th April, 1984 to the post of Architect. The case of the respondent is that as against the four posts of Architectural Assistant there are two promotional posts of Assistant Architect and one post of Architect and after the up gradation of the post of Assistant Architect there is one post of Assistant Architect and two posts of Architect and as such the number of posts being three the petitioner is not entitled to selection grade. The Tribunal accepted the plea of the petitioner and held that he is entitled to the selection grade w.e.f. 29th May, 1986 with all consequential benefits. However, the monetary benefits were restricted to a period 38 months prior to the filing of the original application.
4. Aggrieved by the order of the Administrative Tribunal passed in O.A. No. 1351 of 1992, the petitioner has filed CWP No. 392 of 2006 wherein he has prayed that the monetary benefits should have been granted w.e.f. 30th May, 1986 whereas the Board has filed CWP No. 214 of 2006 challenging the order of the learned Tribunal.
5. The petitioner had also filed O.A. No. 667 of 2003 before the Tribunal. According to the petitioner, he was promoted as Assistant Architect in the year 1989 and became eligible to be promoted to the post of Architect in the year 1997 since he was the senior most Assistant Architect. The Board upgraded the two posts of Architect to that of Senior Architect in the year 1997. Grievance of the petitioner is that thereafter their remains no avenue of promotion to the Assistant Architects and he prayed that the post of Architect be revived and he may be promoted to the said post. He, therefore, prayed that a direction be issued to the respondents to provide avenue to the promotion to the category of Assistant Architect by upgrading the post of Assistant Architect to that of Architect w.e.f. 1997 when the post of Architect was upgraded to that of Senior Architect. 6. This petition has been contested by the respondents who stated that no post of Architect was existing and therefore, the petitioner could not be promoted to the post of Architect. It is further submitted that the petitioner has already been promoted from Architectural Assistant to Assistant Architect and he cannot claim a promotion as a matter of right.
CWP No. 392 of 2006 and CWP No. 214 of 2006:
7. To appreciate the rival contention of the parties, it would first be appropriate to refer to the notification providing for introduction of selection grade. Relevant portion of the notification reads as follows:
(i) Selection grade will be provided in cases where the number of higher posts (all levels taken together to which employees in a particular case can seek promotion) is less than half the strength of that cadre or where there is no promotion posts at all available to a cadre or service.
8. It would also be appropriate to refer to the Recruitment and Promotion Rules for the post of Assistant Architect and Architect in so far as they relate to the promotional quote. As pointed out above, at the relevant time there were only two posts of Assistant Architect out of which 75% were to be filled in by promotion and 25% by direct recruitment. The feeder category for promotion were qualified Architectural Assistant. Even the promotional quota was divided amongst the architectural assistants. The graduate architectural assistants were entitled to 50% of the promotional quota and those who had passed the diploma course in architectural assistantship or draftsmanship in civil course were entitled to 25% of the posts. Thus if four persons were appointed as Assistant Architects only one person could be appointed from amongst the diploma holder architectural assistant. As far as the Architects were concerned, the post was to be filled in by promotion from Assistant Architect and the relevant rules reads as follows:
------------------------------------------------------------------------11. In case of recruitment By promotion: From amongst Assistantby promotion deputation/ Architects possessing Degree intransfer grades from which Architecture or its equivalent of apromotion, deputation/ recognized University/Institute withtransfer to be made: Eight years service in the grade.Provided that the Assistant Architectspossessing Architectural qualificationother than the degree in Architect or itsequivalent may also be considered forpromotion, who in the opinion of theCommittee, are of exceptional merit andhave at least ten years service in thegrade.------------------------------------------------------------------------
9. The moot question is whether a diploma holder Assistant Architect has an inherent right to be promoted to the post of Architect. A bare perusal of the Rule-11 quoted here-in-above clearly shows that only the degree holder Assistant Architects with eight years in their grade had a right to be considered for promotion to the post of Architect. As far as Assistant Architects who were not decree holders they could only be considered after 10 years of service only if the Departmental Promotion Committee was of the opinion that they were persons of exceptional merit. As such, an Assistant Architect who was not a degree holder had no inherent right to be considered for promotion to the post of Architect. It was the subjective opinion of the Committee as to whether a particular person is of exceptional merit or not. Therefore, we are of the considered opinion that the post of Architect could not have been taken into consideration while counting the promotional avenue available to the petitioner. Admittedly, out of the two posts of Assistant Architect one had been upgraded to the post of Architect prior to 30th May, 1986 when the petitioner became eligible for grant of selection grade. Therefore, as against the four posts of Architect Assistants there was only one promotional post for which the petitioner could be considered for promotion. This was much less than the limit of 50% prescribed and as such the petitioner was entitled to the grant of selection grade w.e.f. 30th May, 1986.
10. The next question which arises is whether the Tribunal was right in restricting the monetary benefits to a period of 38 months prior to the filing of the petition. From the reply filed by the Board before the Tribunal it is apparent that the Board right from 11.8.1987 had been recommending the case of the petitioner for grant of selection grand and reminders in this behalf were issued to the Government in the year 1988 and 1989 and only on 30.4.1990, for the first time, the case of the petitioner was rejected by the State Government. Thereafter, the Board again referred the matter to the Secretary Housing Board which was again rejected leading to the filing of the original application. In view of the fact that the Board itself had recommended the case of the petitioner from 11.8.1987 we are of the considered view that from this date onwards the petitioner was entitled to the monetary benefits and accordingly the order of the Tribunal is modified to this limited extent that the monetary benefits shall be payable to the applicant w.e.f 11th August, 1987.
CWP(T) No. 9311 of 2008:
11. O.A. No. 667 of 2003 has been transferred from Tribunal since the Tribunal stands abolished vide notification issued by the Central government and the case has been transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008, the matter has been taken up by this Court and now registered as CWP (T) 9311 of 2008.
12. We have already dealt with the rule relating to promotions to the post of Architect. It has been held by us that a non-degree holder Assistant Architect had no right to claim promotion. Therefore, even if the post of Architect was revived the petitioner would have no right to be promoted against the said post. In fact he had no right of consideration against the said post also. Even otherwise, admittedly no post of Architect was existing from the year 1997 till the retirement of the petitioner. No employee can claim that a post be created or upgraded to accommodate him. This Court can also not pass any direction directing the State to create a post or upgrade a post. The case of the petitioner is that he had no avenue of promotion. In fact as held by us above the petitioner was initially recruited as Architectural Assistant. He has been granted selection grade in that post and then promoted as Assistant Architect. It is not a case of total stagnation throughout the career and therefore we find no merit in the writ petition, which is rejected.
13. In view of the above discussion, CWP No. 214 of 2006 filed by the Board and CWP(T) No. 9311 of 2008 filed by the petitioner are dismissed. As far as CWP No. 392 of 2006 filed by the petitioner is concerned the same is allowed to the limited extent that the petitioner shall be entitled to the monetary benefits of grant of selection grade w.e.f. 11th August, 1987. All the petitions are disposed of in the aforesaid terms. No order as to costs.