What Is Not Required For A Lower Post, Not Applicable To The Promotional Post – SC On Promotion Of Direct Recruits As AO In Himachal Electricity Board
A two-judge Bench of Justice MR Shah and Justice Sanjiv Khanna has held that when there was no requirement of passing SAS Part-II examination for the lower post i.e., the post of Assistant Accounts Officer in relation to the direct recruits, there could not be any requirement of passing SAS Part-II examination for the promotional post of Accounts Officer.
An appeal was preferred before the Supreme Court assailing the order of the Himachal Pradesh High Court which had allowed the Writ Petitions of the Private Respondents-Original Writ Petitioners and set aside the promotion of the Assistant Accounts Officer junior to the Original Writ Petitioners.
Senior Advocate Mr. P.S. Patwalia appeared for the Appellants during the proceedings before the Court.
The Court had directed the Himachal State Electricity Board Limited to consider the original Writ Petitioners for the promotion to the posts of Accounts Officers from the dates from which the persons junior to them in the cadre of AAO were promoted to the post of AO.
The dispute in the case was related to the promotion of AO and was between the direct recruits and promotees.
The earlier dispute which arose was related to whether the direct recruits though they were appointed after following all procedures of selection including the recommendation of the Public Service Commission and were continuing in service for since long, can be said to be regularly appointed or not.
The Apex Court had then directed the Board to consider the appointment of direct recruits as regular appointments entitled to all the consequential benefits.
A notification came to be amended on 2 January 2010 and direct recruits AAOs were not promoted since they had cleared the SAS Part II exam.
The Appellants contended before the Court that the Appellants-Promotees got promoted in 2010/2012 pursuant to the issuance of the amended notification in 2010 and further got promoted and Writ Petition was filed in 2017, therefore the High Court ought not to have set aside their promotions to the post of AO and Senior AO.
It was further argued that they had worked for a long time after they got promoted and they could not be directed to be reverted.
While the Respondents contended that there was no requirement of passing the SAS Part-II examination for direct recruits as AAOs.
The issue which was dealt with by the Court was the dispute with respect to the promotion to the post of AO.
The Apex Court after hearing the contentions of the parties, observed, "What is not even required for the lower post, i.e., for the post of AAO so far as the direct recruits is concerned, the same cannot be made applicable to the promotional post of AO."
"The High Court is absolutely justified in holding that such a requirement shall be for the promotion from the post of Superintendent (D/A) to the post of AAO only and consequently shall not be applicable for promotion to the post of AO," the Court opined.
The Court also held that the amended notification dated 2 January 2010 for the promotion to the post of Accounts Officer was arbitrary and illogical and was rightly read down by the High Court.
Regarding the contention of the Appellant that they were promoted to the post of AO in 2010 and promotions were set aside after long time, the Court held that soon after the Petitioners were accorded the status of a regular appointee only thereafter the cause of action arose to claim further promotion to the post of AO. There was no delay on behalf of the Respondents-Petitioners at all in raising the issue, the Court asserted.
"As a necessary consequence to the impugned judgment and order passed by the High Court, now the entire list for the promotion to the post of AO will have to be re-shuffled and the cases of the direct recruits are required to be considered for promotion to the post of AO from the date on which their junior came to be promoted on the post of AO," the Bench observed.
Further, the Court held, "If the prayer of the appellants not to revert them and to continue them on the promotional post is accepted, in that case, there may arise many complications including the effect on the further promotional posts from the post of AO to Senior AO and thereafter to the post of Dy. CAO/Dy. CA/Dy. FA, therefore, the aforesaid prayer is rejected."
In the light of these observations, the Court dismissed the appeals and upheld the judgment of the High Court.