Anjori Kapoor vs State Of Himachal Pradesh & Ors.

Jyotsna Rewal Dua, Judge Asserting her seniority over respondent No. 4, petitioner contends that respondent No. 4 holding substantive rank of Superintending Engineer could not have been upgraded and then promoted to the post of Chief Engineer to be brought at par with her rank as Chief Engineer and subsequently further appointed to the higher cadre post of Chief Executive Officer-cum-Secretary in the respondent Himachal Pradesh Housing and Urban Development Authority (HIMUDA), whereas, petitioner who is senior to respondent No. 4 has been appointed as Advisor (Policy & Strategy) – a redesignated post of Chief Engineer. According to the respondents, post of Chief Executive Officer-cum-Secretary and the post of Advisor (Policy & Strategy) enjoy same rank & status, therefore, the grievance raised by the petitioner is imaginary, she has no locus standi to institute this petition, which is even otherwise not maintainable. Petitioner has inter alia also questioned upgradation of post of Superintending Engineer held by respondent No. 4 to that of Chief Engineer as a measure personal to him and his consequent ‘promotion on regular basis as such’ being not in conformity with Rules. As per petitioner, respondents have unduly favoured respondent No. 4. According to the respondents impugned actions are all lawfully carried out besides alleging acquiescence on part of the petitioner.

2(i) Petitioner and respondent No. 4 are both serving in the respondent - HIMUDA. Petitioner is senior to respondent No. 4. Their service particulars relevant to the controversy are as under:-

2(ii) Promotion from the post of Superintending Engineer lies to the rank of Chief Engineer. ‘Recruitment & Promotion Rules for the post of Chief Engineer (Civil) Class-I (Gazetted) in HIMUDA’ have been framed. The cadre of Chief Engineer consists of one post which is a selection post to be filled up by promotion failing which by deputation. Superintending Engineer with 20 years’ service in gazetted rank including five years service as Superintending Engineer is eligible for promotion as Chief Engineer. Officers holding equivalent post in the State Government or under other State Governments/Government of India are eligible to be deputed as Chief Engineer. The relevant Rules are as under:-

Petitioner, the seniormost Superintending Engineer, was promoted to the post of Chief Engineer (Civil) in Level-31 of Pay Matrix of Rs. 148800-Rs. 218600 on regular basis vide Office Order dated 09.12.2022. This promotion was on the recommendations of the Departmental Promotion Committee. Consequent upon her promotion, petitioner was posted as Chief Engineer, HIMUDA (Head Office) at Nigam Vihar, Shimla.

2(iii) Next higher post in hierarchy in HIMUDA is that of Chief Executive Officer-cum-Secretary. The post is governed by Himachal Pradesh Housing and Urban Development Authority, Chief Executive Officer, Class-I (Gazetted), Appointment, Terms & Conditions of Service Rules, 2012. These Rules have been framed in exercise of power conferred by Section 11(1) of the Himachal Pradesh Housing and Urban Development Authority Act, 2004. Cadre of Chief Executive Officer consist of one post in Pay Band-5, Rs. 37400-67000 + Grade Pay Rs. 10000. The single post is to be

filled up by transfer/placement/secondment as under (relevant portion of the Rules):-

Name of Post Chief Executive Officer

Number of Posts 01 (one)

Classification Class-I (Gazetted)

Scale of Pay Pay Band-5, Rs. 37400-67000 + Grade Pay Rs. 10000

Whether selection Selection post or Non-Selection post … … … … … …

Method of 100% by transfer/placement/ Recruitment, secondment. whether by direct recruitment or by promotion, deputation, transfer and the percentage of posts to be filled in by various methods.

In case of By transfer / placement / recruitment by secondment from amongst the Chief Promotion, Engineers (Civil), HIMUDA and Chief deputation, transfer Engineers (Civil), Himachal Pradesh grade from which Public Works Department having promotion/deputati one year’s regular service or regular on/ transfer is to be combined with continuous adhoc made service rendered, if any, in the grade failing which by transfer / secondment from amongst the Officers from any service of State Government in identical scale.

If a Screening (1) The constitution of the Screening Committee exists, Committee for appointment from what is its amongst the Chief Engineers shall composition. be as under:-i) Chief Secretary to the Government of H.P. – Chairman ii) Principal Secy/Secretary (Per.) to the Govt. of H.P. – Member iii)Principal Secy./Secretary (Hsg.) to the Govt. of H.P. – Member iv) Engineer-in-Chief, HP,PWD/IPH – Member Procedure to be followed by the Screening Committee:-

The Committee shall be guided by the procedures and principles available for promotion to the selection Posts as laid down by the Government of Himachal Pradesh from time to time. The combined seniority list of Chief Engineers shall also be determined as per instructions of the Government of Himachal Pradesh issued from time to time.

Following amendment was carried out to above Rule 11 under notification dated 08.08.2019:-

2(iv) Cadre of Superintending Engineer consists of two posts. Up to 09.12.2022, one post was held by the petitioner and the other by respondent No. 4. As noticed earlier, petitioner was promoted to the post of Chief Engineer as per R & P Rules on 09.12.2022. Petitioner’s junior i.e. respondent No. 4 at that time was still serving as Superintending Engineer. Noting sheets placed on record (Annexure P-8, colly.) make it evident that Government of Himachal Pradesh on 13.01.2023 approved to upgrade the post of Superintending Engineer manned by respondent No. 4 to that of the Chief Engineer, as a measure personal to him, subject to the approval of the Board of Directors of HIMUDA. The noting sheets are also to the effect that upgraded post was to be deemed as downgraded on its vacation by the occupant by virtue of his promotion/retirement, in future. The matter was processed further by the respondents and consequent upon approval of the ‘Service Committee’ by circulation, post of Superintending Engineer held by respondent No. 4 was upgraded to that of Chief Engineer in higher pay level (same as provided to regular post of Chief Engineer) as a measure personal to the said incumbent. The upgraded post of Chief Engineer was to be deemed as downgraded to that of Superintending Engineer on its incumbent’s vacating the same by virtue of promotion/retirement in future. The Office Order issued on 01.02.2023 in this regard is as under:-

Pursuant to above, meeting of Departmental Promotion Committee (in short ‘DPC’) was convened the very next day i.e. 02.02.2023 for making promotion to such upgraded post of Chief Engineer (Civil). The DPC recommended respondent No. 4’s promotion to the upgraded post of Chief Engineer (Civil) as under:-

Same day, the aforesaid recommendations were accepted by respondent-HIMUDA and Office Order was issued on 02.02.2023 promoting respondent No. 4 – serving as Superintending Engineer (Civil) to the post of Chief Engineer (Civil), statedly on ‘regular basis’. Vigilance Clearance Certificate had not been issued to respondent No. 4. The aforesaid Office Order reads as under:-

Consequent upon his such promotion, respondent No. 4 was posted as Chief Engineer (Works & Design), HIMUDA (Head Office), Nigam Vihar, Shimla. Petitioner was shown as Chief Engineer(PF&M), Head Office, HIMUDA, Shimla.

Petitioner did not raise any grievance to respondent No. 4’s upgradation and promotion as Chief Engineer at that time. Petitioner & respondent No. 4 both continued to serve as Chief Engineers.

2(v) Petitioner expected herself to be promoted/appointed to the next higher post in HIMUDA i.e. CEO-cum-Secretary, HIMUDA. Petitioner was the seniormost Chief Engineer in HIMUDA and satisfied eligibility conditions under the applicable Rules for being appointed as CEO. As on 08.12.2023, she had one year of regular service as Chief Engineer to her credit. Petitioner, however, was not being considered for appointment against the post of CEO-cum-Secretary, HIMUDA. Rather respondents had been filling up the post of CEO-cum-Secretary, HIMUDA by appointing different officers belonging to Indian Administrative Service on the said post from time to time. Petitioner being eligible for the post of CEO-cum-Secretary, preferred representations staking her claim to the post of CEO-cum-Secretary, HIMUDA. Her representations did not yield any positive response. It is at this stage that petitioner filed this writ petition on 04.10.2024 seeking following substantive reliefs:-

In this writ petition instituted about one year & eight months after respondent No. 4’s promotion as Chief Engineer against upgraded post of Superintending Engineer, petitioner raised grievance to respondent No. 4’s upgradation and promotion as Chief Engineer besides seeking her own appointment to the post of CEO-cum-Secretary, HIMUDA. Notice of the writ petition was issued on 28.11.2024 when following order was passed:-

2(vi) Pleadings were being completed in this writ petition. In the developments took place:-

Documents appended with the writ petition (noting sheets/pages 71-72 of paper book) show that steps were taken by the respondents purportedly to rewamp and restructure HIMUDA. In this projected direction it was proposed to “re-designate one of the Chief Engineer posts as CEO (Policy and Strategy) and the existing CEO post as CEO (Administration and Execution or Operations), or any other suitable designation, both reporting to the next level”. In furtherance of this proposal, one post of Chief Engineer, HIMUDA was re-designated as Advisor (Policy & Strategy) as a personal measure. The Finance Department conveyed its ‘no objection’ to the proposal. The proposal was approved by circulation by the Board of Directors of HIMUDA on 26.04.2025. Notification was issued by the respondent-HIMUDA on 03.05.2025 re-designating one post of Chief Engineer, HIMUDA as Advisor (Policy & Strategy) in the Pay Level-31 of Pay Matrix (Rs. 182200-Rs.224100), on permanent basis. The re-designated post was to be governed by the same Rules & Regulations of the Authority as applicable to the post of CEO-cum-Secretary, HIMUDA. It was to have equivalent status to that of CEO-cum-Secretary, HIMUDA. The incumbent of the post was to report to the same authority as done by CEO-cum-Secretary, HIMUDA. The notification also conveyed that the upgraded post of Chief Engineer held as a measure personal may revert to its original position i.e. Superintending Engineer on its vacation by its occupant in the event of his promotion/appointment on one of the two posts i.e. CEO-cum-Secretary, HIMUDA and Advisor (Policy & Strategy). The notification dated 03.05.2025 reads as under:-

Consequent to above decision, respondents issued notification on 27.05.2025 whereby petitioner serving as regular Chief Engineer, HIMUDA was appointed as Advisor (Policy & Strategy) against redesignated post of Chief Engineer, whereas, respondent No. 4 serving as Chief Engineer on the upgraded post of Superintending Engineer was appointed to the still higher post as CEO-cum-Secretary, HIMUDA. The notification reads as under:-

2(vii) Feeling aggrieved against respondent No. 4’s appointment as CEO-cum-Secretary, HIMUDA & denial of the same to the petitioner and seeking certain other ancillary reliefs, petitioner prayed for amending the writ petition which was allowed on petition are as under:-

Heard learned Counsel for the parties & considered the case file. In order to maintain brevity, the submissions made by learned Counsel for the parties & discussion thereupon have been enumerated in the succeeding paragraphs.

An objection has been raised by the learned counsel for the respondents that petitioner has no locus standi to maintain this writ petition. According to them, petitioner was promoted to the post of Chief Engineer on 09.12.2022. Post of Chief Engineer was re-designated on 03.05.2025 as Advisor (Policy & Strategy) in the Pay Level-31 of the Pay Matrix ( 182200 – 224100). Petitioner was appointed as Advisor (Policy & Strategy), HIMUDA on the aforesaid post on 27.05.2025 on the recommendations of the Screening Committee. The post of Advisor (Policy & Strategy) is in the same pay scale as that of CEO-cum-Secretary, HIMUDA. Petitioner as Advisor (Policy & Strategy) does not report to CEO-cum-Secretary, HIMUDA. The incumbents appointed against both these posts enjoy equal status, pay and report to the same authority. No prejudice, therefore, has been caused to the petitioner by the appointment of respondent No. 4 as CEO-cum-Secretary, HIMUDA. It was also submitted that restructuring in HIMUDA by redesignating one post of Chief Engineer to that of Advisor (Policy & Strategy) was a policy decision of the respondents. Petitioner’s claim for promotion to the post of CEO-cum-Secretary, HIMUDA is not justified. The aforesaid is not even a promotional post from the rank of Chief Engineer. For all intents and purposes the post of CEO-cum-Secretary, HIMUDA is a post to be filled up by transfer/placement of eligible employees. The official respondents have accordingly transferred and appointed respondent No. 4 against the aforesaid post.

A further objection has been taken against petitioner having not assailed the upgradation of the post held by respondent No. 4 as Superintending Engineer to that of Chief Engineer. According to the respondents, post of Superintending Engineer held by respondent No. 4 had been upgraded to that of Chief Engineer on 01.02.2023. Learned Advocate General had been at pains to submit that upgradation amounts to creation of post; That respondent No. 4 had been promoted as Chief Engineer on regular basis by way of upgradation of the post of Superintending Engineer. This necessarily has to lead to logical assumption of creation of an additional post of Chief Engineer on regular basis. Respondent No. 4 served as such w.e.f. 02.02.2023. Petitioner did not raise any demur or objection against respondent No. 4’s serving as Chief Engineer on account of upgradation of the post of Superintending Engineer held by him to the post of Chief Engineer. Petitioner for the first time laid challenge to the aforesaid action by instituting this writ petition in October, 2024. On account of delay, laches as also acquiescence, petitioner is estopped in raising the issue of upgrading the post of Superintending Engineer held by respondent No.4 to that of Chief Engineer by creating additional post of Chief Engineer.

Gist of submissions made by learned Senior Counsel for the petitioner was that respondent No. 4 was a blue eyed person of the respondents. He had been given undue favours at every stage be it while unlawfully upgrading his post of Superintending Engineer to that of Chief Engineer and thereafter appointing him as CEO-cum-Secretary – the highest post in the hierarchy in HIMUDA. These promotions/appointments of respondent No. 4 were contrary to the governing Rules. In the process, great prejudice has been caused to the petitioner who with nothing adverse against her & despite being senior to respondent No. 4 has been denied the opportunity to serve as CEO-cum-Secretary, HIMUDA.

Engineer held by respondent No. 4 to that of Chief Engineer and promotion of respondent No. 4 on regular basis on such post:

Respondent No. 4 was serving as Superintending Engineer as on 09.12.2022 when petitioner was regularly promoted to the higher post of Chief Engineer. The cadre of Chief Engineer consists of single post, which in accordance with R&P Rules is to be filled up by way of promotion. There is no such pleading that work in the respondent-HIMUDA was suffering which required creation of any additional post of Chief Engineer or upgrading a post of Superintending Engineer to that of Chief Engineer. Yet somehow the proposal was initiated from top ranks of HIMUDA and travelled downward to upgrade one specific post of Superintending Engineer held by respondent No. 4 to that of Chief Engineer as a measure personal to him. The fact that there was no requirement for the additional post of Chief Engineer or for upgrading the post of Superintending Engineer to that of Chief Engineer, is quite obvious from the office order dated 01.02.2023 whereunder post of Superintending Engineer held by respondent No. 4 was ordered to be upgraded. In terms of this very order, the upgraded post of Chief Engineer was to be deemed as downgraded to that of Superintending Engineer as and when respondent No. 4 vacated the upgraded post. Thus, upgradation of the post of Superintending Engineer held by respondent No. 4 to that of Chief Engineer was a temporary measure with no definitive objective assigned for such upgradation. The only logical inference that can be drawn is that such recourse was adopted merely to give higher service pedestal to respondent No. 4.

Furthermore, respondent No. 4 was reflected to have been regularly promoted as Chief Engineer against the upgraded post of Superintending Engineer, which according to learned Advocate General has to be deemed as creation of another post of Chief Engineer. At this juncture, it would be in place to quote Bharat Sanchar Nigam Limited vs. R. Santhakumari Velusamy & Ors.^{22.(2011) 9 SCC 510} wherein the Hon’ble Apex Court elaborated the distinction between promotion, upgradation involving selection & upgradation simpliciter and laid down following governing principles:-

In the instant case, additional post of Chief Engineer was not created. The Recruitment and Promotion Rules for the post of Chief Engineer that prescribed a single cadre post of Chief Engineer were not amended by the respondents. Cadre continued to be of single post occupied by the petitioner on regular basis consequent upon her regular promotion as such. Post of Superintending Engineer held by respondent No. 4 was upgraded to that of Chief Engineer. This upgradation was a measure personal to respondent No. 4. The upgradation was not even permanent. Upgraded post of Chief Engineer was to revert back to that of Superintending Engineer in the event of its vacation by respondent No. 4. Respondent No. 4 was ‘promoted’ against this upgraded post of Chief Engineer on the recommendations of the Departmental Promotion Committee meeting held on 02.02.2023. The recommendations of the DPC placed on record at Annexure P-5 give the impression that it only considered the case of respondent No. 4 for making so called ‘promotion’ to the upgraded post of Chief Engineer. In the given facts, such recommendatory process could not even be termed as ‘selection’. Be that as it may. The upgraded post of Chief Engineer enjoyed higher pay scale than the substantive post of Superintending Engineer held by respondent No. 4. The upgraded post of Chief Engineer carried higher responsibility as also higher status than that of the substantive post of Superintending Engineer held by respondent No. 4. By innovatively promoting respondent No. 4 on the upgraded post of Chief Engineer, respondents No. 1 to 3 & 5 brought respondent No. 4 at par with petitioner who was lawfully and regularly promoted to the post of Chief Engineer against duly sanctioned single cadre post. Admittedly, no amendment in the R&P Rules for the post of Chief Engineer was carried out by the respondents. Learned Advocate General submits that upgradation automatically means creation of post. Such submission cannot be accepted. Upgradation would not automatically mean creation of post. Unless and until applicable R&P Rules are amended upgradation of post would not ipso facto mean creation of post. In the given facts and circumstances, neither upgradation of substantive post of Superintending Engineer held by respondent No. 4 to that of Chief Engineer can be said to be justifiable nor upgradation of post of Superintending Engineer to that of Chief Engineer can be termed as amounting to creation of additional post of Chief Engineer against which respondent No. 4 could be promoted on regular basis.

Learned counsel for the petitioner relied upon Somesh Thapliyal & Anr. vs. Vice Chancellor, H.N.B. Garhwal University & Anr.^{66.(2021) 10 SCC 116}, to contend that petitioner is not estopped from challenging the action of the respondents in upgrading the post of Superintending Engineer to that of Chief Engineer and promoting respondent No. 4 on such upgraded post:-

Nonetheless, the fact cannot be lost sight of that by the time petitioner instituted this writ petition, respondent No. 4 had already served as Chief Engineer on the upgraded post of Superintending Engineer for about a year & eight months, therefore, no further observations are required to be made regarding respondent No. 4’s promotion to the upgraded post of Chief Engineer as petitioner’s challenge in this regard does suffer from some delay and to some extent acquiescence.

promotion to the upgraded post of Chief Engineer, at the relevant time will not take away her right to assail respondent No. 4’s further appointment as CEO-cum-Secretary, HIMUDA. Petitioner had instituted this petition on 04.10.2024. Petitioner was already in the court seeking her appointment against the post of CEO-cum-Secretary, HIMUDA. Her grievance in the original writ petition was that respondents No. 1 to 3 were illegally not considering her case for appointment to the post of CEO-cum-Secretary, HIMUDA. It is during pendency of this writ petition that respondent No. 4 was appointed by respondents No.1 to 3 as CEO-cum-Secretary, HIMUDA whereafter the petitioner amended the writ petition inter alia laying challenge to respondent No. 4’s appointment as CEO-cum-Secretary, HIMUDA.

Relying upon Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed^{77.(1976) 1 SCC 671}, Rajasthan Public Service Commission, Ajmer vs. Yati Jain & Ors^{88.2026 SCC OnLine SC 80: Civil Appeal No. 273 of 2026, decided on 15.01.2026}, elaborates conspectus of ‘aggrieved person’ as against strangers by providing some contrasting tests as to ‘Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person – “against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something?” Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words “person aggrieved” is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?’

Petitioner is certainly a person aggrieved and has locus standi to maintain this writ petition. She has direct interest in appointment of respondent No. 4 on the post of CEO-cum-Secretary, HIMUDA. Point is answered accordingly.

cum-Secretary & appointment of petitioner as Advisor (Policy & Strategy), HIMUDA:

A proposal was moved on 10.04.2025 to redesignate “one of the Chief Engineer posts as CEO (Policy and Strategy) and the existing CEO post as CEO (Administration and Execution or Operations), or any other suitable designation, both reporting to the next level”. The proposal was moved and conveyed in form of message of the Minister incharge that HIMUDA is facing significant challenges in fulfilling its role as a Primary Urban Development Authority and despite its potential, the organization remains struck in a traditional housing board mindset, hindering its growth and effectiveness, therefore, re-structuring was required. As per the message, the re-structuring, as proposed, would not only lead to better policy formulation and strategic planning but would also enable faster decision making for operations. The next day i.e. 11.04.2025, Section Officer in the office of the concerned Minister conveyed another message in form of reviewed proposal to ‘redesign one of the post of the Chief Engineer as Advisor (Policy and Strategy) and keeping the post of CEO-cum-Secretary as it is, as per the role and responsibility defined in HIMUDA Act, both reporting to the next level’. The proposal changed in a day. Be that as it may.

Both the above proposals presumed existence of more than one regular post of Chief Engineer. This assumption was wrong. There was only one regular post of Chief Engineer which was occupied by the petitioner w.e.f. 09.12.2022. The post of Chief Engineer that was occupied by respondent No. 4 was not a regular cadre post. Respondent No. 4 was serving as Chief Engineer on an upgraded post of Superintending Engineer. There was no creation of additional post of Chief Engineer. As per applicable R&P Rules, cadre of Chief Engineer continued to consist of only one regular post. The R&P Rules had not been amended. Merely because respondent-HIMUDA while appointing/promoting respondent No. 4 as Chief Engineer on upgraded post of Superintending Engineer preferred to call it a case of ‘regular promotion’, would not ipso facto give character of regular promotion or regular post to the upgraded post of Superintending Engineer or lead to a deemed construction that a regular post of Chief Engineer got created by upgradation of post of Superintending Engineer held by respondent No. 4 to that of Chief Engineer and his consequent appointment/promotion as such by the respondent-HIMUDA by blissfully treating it as regular promotion to the post of Chief Engineer.

P.U. Joshi & Ors. vs. Accountant General, Ahmadabad & Ors.^{99.(2003) 2 SCC 632}, no doubt holds that “Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service”. But all above actions are to be carried out in accordance with law. State does not enjoy that absolute power to bend the Rules illegally or to read something in the Rules which is not there at all or to do something contrary to Rules in purported exercise of unwarranted & unlawful executive action. A policy decision also cannot be arbitrary, irrational or contrary to Statute and the Rules framed thereunder. [Reference Yamuna Expressway Industrial Development Authority & Ors. vs. Shakuntla Education & Welfare Society & Ors.^{1010.(2022) 20 SCC 698}]

When Rules are in place, which draw force from the Statute, the post can be created only under the R&P Rules by amendment of R&P Rules and not by executive instructions or otherwise. Furthermore, upgradation of post of Superintending Engineer held by respondent No. 4 to that of Chief Engineer was measure personal to him. On his vacating post, the upgraded post was to revert back to that of Superintending Engineer. This amplifies that no regular post of Chief Engineer was ever created by respondent-HIMUDA. Approach of the respondents was erroneous. There were never two posts of Chief Engineers to begin with. By wrongly assuming existence of two posts of Chief Engineers, cadre restructuring proposals were moved from top with seemingly no appropriate deliberations in the respondents-Department. The cadre restructuring proposal was for one post of Advisor and the other post of CEO, both in the same rank, same pay scale and reporting to the same level. Endeavour has been made on the part of the respondents to establish that both the posts had the same status.

Surprisingly, ever so vigilant Finance Department approved the proposal in no time. This approval was conveyed by the Principal Secretary (Housing) to the respondent-HIMUDA through office letter dated 21.04.2025. Board of Directors of respondent-HIMUDA approved the proposal by circulation. This was conveyed by HIMUDA to Principal Secretary (Housing) on 26.04.2025. Reference is not made to several noting sheets placed on record by the petitioner obtained under the Right to Information Act, 2005 pointing out flashing speed of movement of files for approval of proposal.

Notification was issued on 03.05.2025 whereby State of Himachal Pradesh ordered redesignation of one post of Chief Engineer, HIMUDA as Advisor (Policy & Strategy) on permanent basis. The redesignated post was to be governed with the same Rules and Regulations of the Authority as applicable to the post of CEO-cum-Secretary, HIMUDA. The redesignated post was to have an equivalent status to that of CEO-cum-Secretary, HIMUDA. Both these posts were to report to the same next level. By redesignating the only available cadre post of Chief Engineer as Advisor (Policy & Strategy), respondents ensured that no incumbent could be posted as Chief Engineer even though R&P Rules for the post of Chief Engineer remained intact.

Notification dated 03.05.2025 was followed by notification dated 27.05.2025 whereby petitioner, a regularly promoted Chief Engineer was appointed as Advisor (Policy & Strategy) and respondent No. 4 serving as Chief Engineer on upgraded post of Superintending Engineer as CEO-cum-Secretary, HIMUDA.

Petitioner, certainly has locus standi to challenge respondent No. 4’s appointment as CEO-cum-Secretary, HIMUDA and has sound justification to do so. Petitioner was serving as regular Chief Engineer ever since her promotion as such on 09.12.2022. As per Himachal Pradesh Housing and Urban Development Authority, Chief Executive Officer, Class-I (Gazetted), Appointment, Terms & Conditions of Service Rules, 2012 as amended vide notification dated 08.08.2019, the single cadre post of CEO can be filled up only by way of placement/ transfer/secondment from amongst the Chief Engineers (Civil), HIMUDA having one year’s regular service or regular combined with continuous adhoc service rendered, if any, in the grade, or the Chief Engineers (Civil), Himachal Pradesh Public Works Department having one year’s regular service or regular combined with continuous adhoc service rendered, if any, in the grade and having atleast one and half year residual service on the date of occurrence of vacancy, failing which by transfer/secondment from amongst the officers from any service of State Government in identical scale.

Respondent No. 4 was not eligible for appointment to the post of CEO-cum-Secretary, HIMUDA in terms of the applicable Rules. Respondent No. 4 was not holding the post of Chief Engineer on regular basis. He did not have to his credit any service as Chief Engineer on regular basis. Respondent No. 4’s appointment against the post of CEO-cum-Secretary, HIMUDA was fortuitous. He was holding substantive post of Superintending Engineer. As a measure personal to him, post of Superintending Engineer was upgraded by respondent-HIMUDA to that of Chief Engineer. On respondent No. 4’s vacating the said post it was to revert back to the post of Superintending Engineer, whereas, petitioner was serving as regularly promoted Chief Engineer. She satisfied the eligibility criteria. It is not the case of respondent-HIMUDA that petitioner was not eligible for the post of CEO-cum-Secretary, HIMUDA. In fact, respondents have themselves given appointment to the petitioner though as Advisor (Policy & Strategy), HIMUDA purportedly with the same rank as that of CEO-cum-Secretary, HIMUDA. The CEO-cum-Secretary, HIMUDA is a cadre post governed by Himachal Pradesh Housing and Urban Development Authority, Chief Executive Officer, Class-I (Gazetted), Appointment, Terms & Conditions of Service Rules, 2012, whereas the post of Advisor (Policy & Strategy) is not a cadre post. It has not been created regularly. It does not own its genesis to the R&P Rules. Executive orders/notifications will not clothe the post with some Rules when such Rules do not themselves speak about their applicability to the post in question. Furthermore, there has been no creation of post of Advisor (Policy & Strategy), only the cadre post of Chief Engineer has been redesignated as Advisor (Policy & Strategy). The post of Chief Executive Officer-cum-Secretary is the highest cadre post in the hierarchy in HIMUDA. Petitioner claimed her appointment against the post of CEO-cum-Secretary, HIMUDA and the respondent-HIMUDA thwarted that claim by appointing someone ineligible against that post. Petitioner definitely not only has locus standi to challenge such action but she has also been able to demonstrate prejudice caused to her by such illegal appointment of respondent No. 4 to the post of CEO-cum-Secretary, HIMUDA.

Union of India & Anr. vs. Hemraj Singh Chauhan & Ors.^{1111.(2010) 4 SCC 290}, reiterates accepted legal position that ‘right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution’. In the given facts of the case, Apex Court observed that ‘unreasonable inaction on the part of State stood in the way of the respondents’ chances of promotion from being fairly considered when it is due for such consideration and delay made them ineligible’ and considered the matter for resolving the controversy fairly.

Petitioner has been denied fundamental right of fair consideration for appointment against the highest cadre post in HIMUDA – The Chief Executive Officer-cum-Secretary. This right has been denied to her by the respondents by considering an ineligible person – respondent No. 4 for appointment against the said post and who was appointed as such. It is misconception on part of State to call appointment to the post of CEO-cum-Secretary, HIMUDA as a mere case of transfer. It is not so. There are Rules in place governing appointment to this post. The Rules derive their origin from the parent Statute. Rules prescribe eligibility to the said post. Rules also prescribe procedure to be followed for making appointment to the post of CEO-cum-Secretary, HIMUDA. The appointment is to be made by the Screening Committee taking recourse to the procedure and principles applicable for promotion to the selection posts. Consideration of combined seniority list of Chief Engineers is one of the factors to be kept in view. As on 27.05.2025, petitioner was a regular promoted Chief Engineer and senior to respondent No. 4. There was nothing adverse against her (Respondents have themselves purportedly given her another posting of rank & status at par to that of CEO-cum-Secretary). On 27.05.2025, respondent No.4 though was serving as Chief Engineer but only on account of upgradation of the post of Superintending Engineer, substantively held by him to that of Chief Engineer. Respondents may term it as ‘regular promotion’ yet for all intents & purposes, respondent No. 4’s serving as Chief Engineer has to be held as fortuitous and not regular promotion. A post/service will not become regular just because the order terms it so. In order to have regular promotion, there has to be in existence a regular post in terms of governing R&P Rules, which continue to hold the field. In the instant case, cadre strength of Chief Executive Officer consisted only of a single post, which was occupied by the petitioner. There was no amendment to the R&P Rules. In the given facts mere upgradation of post of Superintending Engineer to that of Chief Engineer will not ipso facto amount to creation of another post of Chief Engineer without there being corresponding amendment in the R&P Rules. Respondent No. 4 was not eligible to be considered and appointed as CEO-cum-Secretary, HIMUDA. He did not have to his credit any regular service as regularly promoted Chief Engineer.

Respondent No. 4 while serving as Chief Engineer against the upgraded post of Superintending Engineer, that too upgraded as a measure personal to him and to revert back to the cadre of Superintending Engineer, cannot be construed to have been promoted to the post of Chief Engineer on regular basis. Therefore, respondent No. 4’s service as Chief Engineer did not make him eligible to be considered for appointment to next higher post of CEO-cum-Secretary, HIMUDA. Petitioner, serving as a regularly promoted Chief Engineer against the single cadre post of Chief Engineer and also senior to respondent No. 4 has better claim than respondent No. 4 to seek appointment against the post of CEO-cum-Secretary, HIMUDA. Her rights have certainly been prejudiced by the respondents by considering and accepting the case of an ineligible person – respondent No. 4 to the post in question.

Uttar Pradesh State Industrial Development Corporation Ltd. vs. Arun Kumar Mishra & Ors.^{1212.(2017) 12 SCC 657}, was a case involving facts somewhat similar to the present case. In the said case:-

There were two separate cadres one for Engineers and one for Managers in Uttar Pradesh State Industrial Development Corporation (UPSIDC). There was one post of Chief Engineer held by ‘M’. ‘V’ belonged to managerial cadre of UPSIDC. The Managing Director took away powers from ‘M’ and vested them with ‘V’. In a hurried manner, an additional post of Chief Engineer was created and ‘V’ was upgrade to the post of Chief Engineer. The High Court stayed the State Government order of creation of such new post of Chief Engineer as also of upgradation of ‘V’ to said post.

An objection was taken by learned counsel for the respondents to the locus of the petitioner to challenge the creation of the post asserting that creation of post is a policy matter and is the prerogative of the State Government; Upgradation will also include creation.

Hon’ble Apex Court held, petitioner had the right to challenge the upgradation/creation of one extra post, which was affecting his functioning and right to work as Chief Engineer. The argument that post was created alongwith upgradation, was not accepted:-

Relying upon BSNL², Hon’ble Apex Court held that upgradation cannot be allowed in such a manner so as to jump to another cadre under the garb of upgradation; the upgradation has to take place in the same cadre, it cannot transgress the cadre to another cadre:-

On the projected necessity of development of the projects as the reason cited for alleged creation of post and domain of the State in creating/abolishing a post, it was observed as under:-

The Hon’ble Apex Court observing that private respondent therein appeared to be a blue-eyed boy, inter alia emphasized that there can be no filling of post without amendment of the service Rules:-

Hon’ble Apex Court held that post had been upgraded only to get rid of the petitioner or deprive him of the opportunity to function as Chief Engineer in an exercise which was not valid as per law. Promotion could not be made without an amendment to the service rules.

The jurisprudence around irregular & illegal appointment was explained as under in Pawan Kumar Tiwary & Ors. vs. Jharkhand State Electricity Board (Now Jharkhand Urja Vikas Nigam Limited) & Ors.^{2323.2025 SCC OnLine SC 1751}:-

In the given facts of the case, respondent No. 4’s appointment to the post of Chief Executive Officer-cum-Secretary, HIMUDA has to be held as illegal, he being ineligible for the post.

For the foregoing discussion, the writ petition is allowed as under:-

ii) Respondents No. 1 - 3 are directed to make appointment to the post of Chief Executive Officer-cum-Secretary, HIMUDA strictly in consonance with the Himachal Pradesh Housing and Urban Development Authority, Chief Executive Officer, Class-I (Gazetted), Appointment, Terms & Conditions of Service Rules, 2012 by considering the cases of only those who are eligible as per these Rules. This exercise, by including name of the petitioner in the consideration zone, be undertaken within a period of two weeks from today.

Pending miscellaneous application(s), if any, also stand disposed of.