ANJORI KAPOOR vs THE STATE OF HP AND OTHERS
- Court
- High Court of Himachal Pradesh
2026:HHC:37485
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 13417 of 2024
Reserved on : August 20 , 2026
Announced on: September 03 , 2026
( Uploaded on website: 03.09.2026 )
Anjori Kapoor ...Petitioner
Versus
State of Himachal Pradesh through
Principal Secretary Housing, Govt. of HP & Ors. ...Respondents
Coram:
Ms. Justice Jyotsna Rewal Dua, Judge
1
Whether approved for reporting? Yes.
For the petitioner : Mr. Vikrant Thakur, Senior Advocate with
Mr. Shubham Guleria, Advocate.
For the respondents : Mr. Anup Rattan, Advocate General with Ms.
Seema Sharma, Deputy Advocate General for
respondents No. 1, 2 & 5.
Mr. C.N. Singh, Advocate, for respondent No.
3.
Mr. Sunil Mohan Goel, Senior Advocate, with
Mr. Raman Jamalta & Mr. Paras Dhaulta,
Advocates, for respondent No. 4.
Jyotsna Rewal Dua, Judge
Asserting her seniority over respondent No. 4, petitioner
contends that respondent No. 4 holding substantive rank of
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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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.
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2. The Case
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:-
Assistant
Engineer
(AE)
Executive
Engineer
(EE)
Superintending
Engineer
(SE)
Petitioner 18.10.1996 16.06.2007 01.09.2014
Respondent
No. 4
11.12.1996 16.06.2007 20.03.2017
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:-
“1. Name of Post Chief Engineer
2. Number of Post 01 (one)
3. Classification Class-I (Gazetted)
4. Scale of Pay (be given
in the expanded
notation
Rs. 18600-500-22100
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5. Whether selection post
or Non-selection post
Selection
… … …
… … …
10. Method of Recruitment,
whether by direct
recruitment or by
promotion, deputation,
transfer and the
percentage of posts to
be filled in by various
methods.
By promotion failing which by
deputation.
11. In case of recruitment
by Promotion,
deputation, transfer
grade from which
promotion/deputation/
transfer is to be made
i) Promotion: Superintending
Engineer with 20 years service
in Gazetted rank including five
years service as Superintending
Engineer.
ii) Deputation: Officers holding
equivalent post in the State
Govt. or under other State
Govts. Or under the Govt. of
India.
1. In all cases of promotion, the continuous adhoc service rendered in
the feeder post, if any, prior to regular appointment to the post
shall be taken into account towards the length of service as
prescribed in these rules for promotion subject to the conditions:
i) That in all cases where a Junior person becomes eligible for
consideration by virtue of his total length of service (including
the service rendered on adhoc basis) in the feeder post in view
of the provision referred to above, all persons senior to him in
the respective category/post/cadre shall be deemed to be
eligible for consideration and placed above the Junior person in
the field of consideration;
ii) Provided that all incumbents to be considered for promotion
shall possess the minimum qualifying service of at least 3 years
or that prescribed in the R & P Rules for the post whichever is
less;
iii) Provided further that where a person becomes ineligible to be
considered for promotion on account of the requirement of the
preceding proviso, the person(s) Junior to him shall also b
deemed to be ineligible for consideration for such promotion.”
Rule 10 & 11 of the above Rules underwent amendment in
2006 as under:-
“10 Method of
Recruitment, whether
by direct recruitment
or by promotion,
deputation, transfer
and the percentage
of posts to be filled in
by various methods.
100% by promotion failing which on
secondment basis.
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11 In case of recruitment
by Promotion,
deputation, transfer
grade from which
promotion/deputation/
transfer is to be made
By promotion from amongst the
Superintending Engineer(C) with
minimum 25 years service in Gazetted
rank including three years regular or
regular combined with continuous adhoc
service as Superintending Engineer (C)
failing which on secondment basis from
amongst the incumbents working in the
identical pay scale on analogous posts in
other HP Government Departments/
Central Government with similar service
condition.”
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
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filled up by transfer/placement/secondment as under (relevant
portion of the Rules):-
1. Name of Post Chief Executive Officer
2. Number of Posts 01 (one)
3. Classification Class-I (Gazetted)
4. Scale of Pay Pay Band-5, Rs. 37400-67000 +
Grade Pay Rs. 10000
5. Whether selection
post or Non-
Selection post
Selection
… … …
… … …
10. Method of
Recruitment,
whether by direct
recruitment or by
promotion,
deputation, transfer
and the
percentage of posts
to be filled in by
various methods.
100% by transfer/placement/
secondment.
11. In case of
recruitment by
Promotion,
deputation, transfer
grade from which
promotion/deputati
on/ transfer is to be
made
By transfer / placement /
secondment from amongst the Chief
Engineers (Civil), HIMUDA and 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
failing which by transfer /
secondment from amongst the
Officers from any service of State
Government in identical scale.
12. If a Screening
Committee exists,
what is its
composition.
(1) The constitution of the Screening
Committee for appointment from
amongst the Chief Engineers shall
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
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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:-
“(a) for the existing provisions against Column No. 11, the
following shall be substituted, namely:-
“By 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” and
(b) for the existing provisions against Column No. 12, the
following shall be substituted, namely:-
“The constitution of the Screening Committee for appointment
to the post of Chief Executive Officer, HIMUDA from amongst
the Chief Engineers shall be as under:-
(i) Chief Secretary to the Government of HP … Chairman
(ii) Additional Chief Secretary (Personnel)
to the Government of Himachal Pradesh … Member
(iii) Additional Chief Secretary (Housing)
to the Government of Himachal Pradesh … Member
(iv) Engineer-in-Chief, HPPWD/HPIPH … Member
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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 HP from time
to time.” .
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
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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:-
“Consequent upon approval of “Service Committee” by
circulation as conveyed by Principal Secretary (Housing) to the
Government of Himachal Pradesh on 31.01.2023, a post of
Superintending Engineer (Civil), North Circle, HIMUDA
Dharamshala, District Kangra is hereby upgraded to that of Chief
Engineer in the pay level-31 of matrix Rs. 148800-218600 as a
measure personal to the existing incumbent with immediate effect
in the interest of HIMUDA. The upgraded post of Chief Engineer
shall be deemed downgraded to that of Superintending Engineer
as and when the occupant vacates the upgraded post by virtue of
promotion/retirement, in future.”
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:-
“The Committee was apprised that in HIMUDA one post of
Chief Engineer and two posts of Superintending Engineer (Civil)
are sanctioned. The post of Chief Engineer is filled-up. The
Service Committee has approved upgradation of one post of
Superintending Engineer, HIMUDA, North Circle Dharamshala
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manned by Dr. Surinder Kumar Vashisht to that of Chief Engineer
as a measure personal to him in the pay Level-31 (Rs. 148800-
218600). The upgraded post of Chief Engineer shall be deemed
downgraded to that of Superintending Engineer as and when the
occupant vacates the upgraded post by virtue of
promotion/retirement, in future. Accordingly, post of
Superintending Engineer, North, Dharamshala has been
upgraded to that of Chief Engineer as measure personal vide
office order No. HIMUDA: 5-67/2016-Admn.Vol.I - 23817-40 dated
01.02.2023.”
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:-
“On the recommendation of the Departmental Promotion
Committee (Higher) made in its meeting held on 02.02.2023, Dr.
Surinder Kumar Vashisht, Superintending Engineer (Civil) is
hereby promoted to the post of Chief Engineer (Civil) in the Level-
31 of Pay Matrix of Rs.148800-Rs.218600 of HPCS (Revised Pay)
Rules, 2022 on regular basis from the date of assuming the
charge as such.
Consequent upon his promotion, Dr. Surinder Kumar
Vashisht, Superintending Engineer (Civil) presently posted in
HIMUDA North Circle Dharamshala is hereby posted as Chief
Engineer, HIMUDA Dharamshala. The Officer is not entitled for
TTA and joining time as no change of station is involved.
The above officer shall remain on probation for a period of
two years or till the date of superannuation, whichever is earlier.
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The above Officer shall exercise option to fix pay under
FR-22, read with Rule-8 of Himachal Pradesh Civil Services Pay
(Revised) Rules 2022 within a period of one month from the date
of issue of this order.”
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,
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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:-
“i) Issue a writ of certiorari or any other appropriate writ, order,
or direction to quash the appointment and upgradation of the
private respondent, Surinder Kumar Vashisht, to the post of Chief
Engineer, as well as appointment of an IAS officer, to the post of
CEO-cum-Secretary, being contrary to the provisions of HIMUDA
Act & Recruitment and Promotion Rules framed thereunder; and
ii) Issue a writ of mandamus directing the respondents to
appoint the petitioner to the post of CEO-cum-Secretary in
accordance with the Recruitment and Promotion Rules,
considering her as the only eligible candidate for the said post.”
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:-
“Notice. Mr. Y.P.S.Dhaulta, learned Additional Advocate
General and Mr. Anshul Gandhi, learned counsel, accept service
of notice on behalf of respondents No. 1 and 2 and respondent
No.3, respectively. Issue notice to respondent No.4, returnable for
23.12.2024. In addition to ordinary process, respondent No.4 be
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served by way of Dasti notice, on usual terms. Steps for service
be taken within two days.
2. Petitioner is presently serving as Chief Engineer in
HIMUDA. She was promoted as such on 09.12.2022. Respondent
No.4 was holding the post of Superintending Engineer in
HIMUDA. Petitioner’s grievance is to the upgradation of the post
held by respondent No.4 to that of Chief Engineer. Consequent
upon upgradation of the post of Superintending Engineer to Chief
Engineer vide order dated 01.02.2023, respondent was promoted
to the post of Chief Engineer (C) on 02.02.2023. Petitioner
contends that upgradation of post of Superintending Engineer held
by respondent No.4 to that of Chief Engineer was an illegal act of
respondents No. 1 to 3.
3. Her further grievance is that respondents No. 1 to 3 are
duty bound to make promotion to the post of Chief Executive
Officer-cum-Secretary HIMUDA. According to the petitioner, the
aforesaid is a promotional post from the category of Chief
Engineer, but respondents No. 1 to 3 instead of making promotion
to the post of Chief Engineer-cum-Secretary, had appointed an
Indian Administrative Services Officer as CEO-cum-Secretary
HIMUDA.
Let respondents file reply by 23.12.2024, responding to the
above contentions.”
2(vi) Pleadings were being completed in this writ petition. In the
meanwhile, during pendency of this writ petition, following
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
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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
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Advisor (Policy & Strategy). The notification dated 03.05.2025
reads as under:-
“ The Governor of Himachal Pradesh is pleased to order the
re-designation of one post of Chief Engineer, HIMUDA as Advisor
(Policy & Strategy) in the pay Level-31 of the Pay Matrix
( 182200- 224100), on permanent basis, with the objection that
the re-designated post shall focus on high-level policy formulation
and strategic planning for HIMUDA, subject to the following terms
and conditions:-
1. The re-designated post shall be governed with the same
rules and regulations of the Authority and the State
Government (as admissible) as are applicable to the CEO-
cum-Secretary, HIMUDA.
2. The re-designated post shall have an equivalent status to
that of the post of CEO-cum-Secretary, HIMUDA and shall
report to the authorities as is being done by the CEO-cum-
Secretary, HIMUDA either at administrative level or at
HIMUDA’s level.
3. The Department of Personnel (DoP) will be the appointing
authority in the case of newly designated post of Advisor
(Policy & Strategy) as similar as in the case of CEO-cum-
Secretary, HIMUDA.
4. The upgraded post of Chief Engineer held as a measure
personal may revert to its original position, i.e.,
Superintending Engineer, if it is vacated by the occupying
officer in the event of his/her promotion/appointment on
one of the two posts (i.e. CEO-cum-Secretary, HIMUDA
and Advisor, Policy &Strategy). ”
Consequent to above decision, respondents issued
notification on 27.05.2025 whereby petitioner serving as regular
Chief Engineer, HIMUDA was appointed as Advisor (Policy &
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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:-
“ On the recommendations of the Screening Committee,
the Governor, Himachal Pradesh is pleased to order to make the
following appointments in the Level-31 of the pay matrix
( 2,18,600), on regular basis, with immediate effect,
as under:-
1. Er. Anjori Kapoor, Chief Engineer, HIMUDA as
Advisor (Policy & Strategy), HIMUDA.
2. Er. Surinder Kumar Vashisht, Chief Engineer,
HIMUDA as Chief Executive Officer (CEO), HIMUDA.
The officers shall have to exercise option for fixation of pay
under the provision of FR-22 within a period of one month from
the date of issue of this order. ”
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
10.09.2025. The substantive reliefs as claimed in the amended writ
petition are as under:-
“ i) Issue a writ of certiorari , or any other appropriate writ, order
or direction, quashing the upgradation of the post of
Superintending Engineer (North) to that of Chief Engineer (Works
& Design) as a personal measure in favour of Respondent No. 4,
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being contrary to the sanctioned cadre strength and in violation of
the Recruitment and Promotion Rules: and
ii) Issue a writ of certiorari , or any other appropriate writ, order
or direction, quashing the order dated 27.05.2025 (Annexure P-
19) i.e. subsequent appointment of Respondent No. 4 as Chief
Executive Officer (CEO) of HIMUDA, being illegal, ultra vires the
applicable R&P Rules, and flowing directly from the illegal
upgradation to the post of Chief Engineer; and
iii) Issue a writ of mandamus directing the respondents to
consider and promote the petitioner to the post of CEO-cum-
Secretary (one sanctioned post), being the only eligible officer
holding the sanctioned post of Chief Engineer (Civil) in HIMUDA,
in accordance with the applicable R&P Rules. ”
3. 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.
4. Consideration
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
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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
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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
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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.
4(a) Concerning upgradation of specific post of Superintending
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
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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
2
Sanchar Nigam Limited vs. R. Santhakumari Velusamy & Ors.
wherein the Hon’ble Apex Court elaborated the distinction between
promotion, upgradation involving selection & upgradation simpliciter
and laid down following governing principles:-
2
(2011) 9 SCC 510
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“ 21. The distinction between upgradation and promotion was
spelt out by a Full Bench of the Kerala High Court in N.G. Prabhu
3
vs. Kerala High Court , thus :
"16. … … Promotion is, of course, appointment, to a
different post carrying a higher scale of pay in the service.
If, to better the conditions of service of the incumbents in
posts in the same category the scale of pay of all the posts
in the category is raised, the incumbents would naturally
get the higher scale of pay. But in such a case it may not
be proper to characterize the event as a promotion to
higher posts though a benefit of a higher scale of pay is
obtained by all concerned. In other words, if the
upgradation relates to all the posts in a category naturally,
there is no sense in calling it a promotion of all the persons
in that category. That is because there is no question of
appointment from one post to another. Parties continue to
hold same posts but get a higher scale of pay. It may be
that it is not all the posts in a particular category that are so
upgraded, but only a part of it. Normally, the benefit of
such upgradation would go to the seniors in the category.
They would automatically get a higher scale of pay. That is
because though their posts continue in the same category
a higher scale of pay is fixed for those posts. It is
appropriate then to say that the seniors have been
nominated to the higher grade which has been so created
by upgradation. This phenomenon does not differ from the
case where all the posts are upgraded and, it appears to
us that those who get the higher grade cannot be said to
have been ‘promoted' because here again there is no
question of appointment from one post to another. They
continue to hold the same post, but because of seniority in
the same post they are given a higher scale of pay. When
a person is nominated to the higher scale of pay from time
to time based on seniority, it may perhaps be loosely
termed as a promotion."
22. But even in cases where no additional posts were created,
but where a process of selection was involved in the upgradation,
the process has to be considered not as an upgradation
simplicitor, but a process of promotion and therefore the principles
of reservation would be attracted. We may refer to the Constitution
4
Bench decision of this Court in Ram Prasad vs. D.K. Vijay where
this Court held that appointment from senior scale to selection
3
1973 Lab IC 1399 (Ker)
4
(1999) 7 SCC 251
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scale is a promotion though it may not be a promotion to a higher
position and consequently the reserved candidates are entitled to
be promoted to the selection scale by way of roster points. For this
purpose, the Constitution Bench relied upon the decision of State
5
of Rajasthan vs. Fateh Chand Soni .
… … …
29. On a careful analysis of the principles relating to promotion
and upgradation in the light of the aforesaid decisions, the
following principles emerge :
(i) Promotion is an advancement in rank or grade or both and
is a step towards advancement to higher position, grade or honour
and dignity. Though in the traditional sense promotion refers to
advancement to a higher post, in its wider sense, promotion may
include an advancement to a higher pay scale without moving to a
different post. But the mere fact that both - that is advancement to
a higher position and advancement to a higher pay scale - are
described by the common term ‘promotion', does not mean that
they are the same. The two types of promotion are distinct and
have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising
the scale of pay of the post without there being movement from a
lower position to a higher position. In an upgradation, the
candidate continues to hold the same post without any change in
the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay
scale without change of post, it may be referred to as upgradation
or promotion to a higher pay scale. But there is still difference
between the two. Where the advancement to a higher pay-scale
without change of post is available to everyone who satisfies the
eligibility conditions, without undergoing any process of selection,
it will be upgradation. But if the advancement to a higher pay-
scale without change of post is as a result of some process which
has elements of selection, then it will be a promotion to a higher
5
(1996) 1 SCC 562
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pay scale. In other words, upgradation by application of a process
of selection, as contrasted from an upgradation simplicitor can be
said to be a promotion in its wider sense that is advancement to a
higher pay scale.
(iv) Generally, upgradation relates to and applies to all
positions in a category, who have completed a minimum period of
service. Upgradation, can also be restricted to a percentage of
posts in a cadre with reference to seniority (instead of being made
available to all employees in the category) and it will still be an
upgradation simplicitor. But if there is a process of selection or
consideration of comparative merit or suitability for granting the
upgradation or benefit of advancement to a higher pay scale, it will
be a promotion. A mere screening to eliminate such employees
whose service records may contain adverse entries or who might
have suffered punishment, may not amount to a process of
selection leading to promotion and the elimination may still be a
part of the process of upgradation simplicitor. Where the
upgradation involves a process of selection criteria similar to those
applicable to promotion, then it will, in effect, be a promotion,
though termed as upgradation.
(v) Where the process is an upgradation simplicitor, there is no
need to apply rules of reservation. But where the upgradation
involves selection process and is therefore a promotion, rules of
reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in
creation of additional posts and filling of those vacancies by those
who satisfy the conditions of eligibility which includes a minimum
period of service, will attract the rules of reservation. On the other
hand, where the restructuring of posts does not involve creation of
additional posts but merely results in some of the existing posts
being placed in a higher grade to provide relief against stagnation,
the said process does not invite reservation. ”
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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
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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 &
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6
Anr. , 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:-
“ 42. The submissions of the learned counsel for the
respondents that the appellants have accepted the terms and
conditions contained in the letter of appointment deserves
rejection for the reason that it is not open for a person appointed
in public employment to ordinary choose the terms and conditions
of which he is required to serve. It goes without saying that
employer is always in a dominating position and it is open to the
employer to dictate the terms of employment. The employee who
is at the receiving end can hardly complain of arbitrariness in the
terms and conditions of employment. This Court can take judicial
notice of the fact that if an employee takes initiation in questioning
the terms and conditions of employment, that would cost his/her
job itself.
43. The bargaining power is vested with the employer itself and
the employee is left with no option but to accept the conditions
dictated by the authority. If that being the reason, it is open for the
employee to challenge the conditions if it is not being in conformity
with the statutory requirement under the law and he is not
estopped from questioning at a stage where he finds himself
aggrieved.”
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,
6
(2021) 10 SCC 116
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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.
4(b) However, petitioner’s not assailing respondent No. 4’s
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,
7
Haji Bashir Ahmed , Rajasthan Public Service Commission, Ajmer
7
(1976) 1 SCC 671
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8
vs. Yati Jain & Ors , 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?’
8
2026 SCC OnLine SC 80: Civil Appeal No. 273 of 2026, decided on 15.01.2026
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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.
4(c) Issue concerning respondent No. 4’s appointment as CEO-
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
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‘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
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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 &
9
Ors. , 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
9
(2003) 2 SCC 632
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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
10
Society & Ors . ]
10
(2022) 20 SCC 698
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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
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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
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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.
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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
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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.
11
Union of India & Anr. vs. Hemraj Singh Chauhan & Ors. ,
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
11
(2010) 4 SCC 290
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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
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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
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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
12
Ltd. vs. Arun Kumar Mishra & Ors. , was a case involving facts
somewhat similar to the present case. In the said case:-
12
(2017) 12 SCC 657
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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.
“36. The learned counsel tor Opposite Parties 4 to 6 has
vehemently opposed the writ petition and has submitted
that there has been concealment on behalf of the petitioner
in the writ petition. There is no locus to challenge the
creation of the post. Creation of post is policy matter and it
is the prerogative of the Government to create and abolish
the post. Creation of post cannot be challenged in any
manner and if creation of post has been made and
decision has been taken out on administrative exigency,
the same cannot be challenged and the petitioner's writ
petition is liable to be dismissed. Mala fides have been
denied by the learned counsel for Opposite Parties 4 to 6
and has also submitted that the order passed by this Court
has been set aside, so any finding recorded in the said
order cannot be of any held to the petitioner. Creation of
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post had not been challenged though it was in the
knowledge of the petitioner and so, he is debarred from
maintaining the present writ petition on the principles of
Order 2 Rule 2 CPC as the entire cause of action ought to
have been included in the earlier writ petition, which was
pending. He has placed reliance upon the judgments
13
rendered in M. Ramanatha Pillai v. State of Kerala ,
14
Katyani Dayal v. Union of India , State of Haryana v.
15 16
Navneet Verma , K.D. Sharma v. SAIL and P.U.Joshi v.
9
Accountant General ;
37. The learned counsel for Opposite Party 8 has
almost repeated the same arguments as advanced by the
learned counsel for Opposite Parties 4 to 6, but in addition
thereto he has submitted that upgradation can be of
different dimension and the upgradation will also include
creation. Upgradation cannot be limited to the extent as
argued by the learned counsel for the petitioner. The
necessity of the Government must be considered as a
policy matter and thereafter proceed to decide the issue in
question as to whether the creation of post can be faulted
in any manner. The learned counsel has also submitted
that the necessity of creating the post has been indidated
in the letter dated 6-10-2016 and thatnecessity is sufficient
to create the post. The Court cannot go behind wisdom of
the Government in creating the post. Same set of cases
have been relied upon by the learned counsel for Opposite
Party 8 as have been relied upon by the learned counsel
for Opposite Parties 4 to 6. In addition thereto, he has
placed reliance jupon the judgment rendered in Aravali
17
Golf Club v. Chander Hass .”
13
(1973) 2 SCC 650
14
(1980) 3 SCC 245
15
(2008) 2 SCC 65
16
(2008) 12 SCC 481
17
(2008) 1 SCC 683
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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:-
“49. We, therefore, hold that the petitioner has a right to
challenge the upgradation/creation of one extra post,
which is affecting his functioning and right to work as
Chief Engineer.
… … …
53. The issue in regard to upgradation of post as
argued by the learned Senior Counsel appearing on
behalf of the State Government has to be considered in
the light of the specific argument raised by the counsel for
Opposite Party 6 and the State Government. Both the
learned counsel have submitted that it is not a creation
and it is an upgradation, so the argument of the learned
counsel for Opposite Party 8 to the effect that it is a
creation of a post along with upgradation cannot be
accepted.
2
Relying upon BSNL , 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:-
“56. Once we come to the conclusion that it is an
upgradation, the principles of upgradation will apply rather
the principles of creation of post. The upgradation of post
is to be there in the same cadre and it cannot transgress
the cadre to another cadre as has been done in the
present case, i.e. from the cadre of General Manager
(Development) to the cadre of Chief Engineer (Project)
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without amending the Rules. The upgradation cannot be
allowed in such a manner so as to jump to another cadre
under the garb of upgradation.
… … …
58. Even if we accept the argument of the learned
counsel for Opposite Party 6 and the State Government
that it is an upgradation, then also the upgradation has to
take place in the same cadre. It is to be noted that the post
of General Manager (Development) is lying vacant for the
last ten years and the said post has not been filled up. This
itself goes to indicate that there was no necessity of
developing projects by the Managing Director of the
Corporation, but for the present spate of litigation a
demand has been made by the Managing Director,
wherein it has been indicated that there is increase of
budget from 454 to 1000 crores and keeping in view the
enormity of work one more post of Chief Engineer (Project)
could be necessary. The demand made by the Managing
Director itself is very clear and the Managing Director has
made only general averment in regard to upgradation of
post, but he has not indicated in his letter as to which
projects were suffering on account of non-upgradation of
the post. It is to be noted that there is one post of
Superintending Engineer in the Corporation which is lying
vacant for the Iast so many years and the said post has
not been filled up up till now .”
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:-
“59. The counsel for the petitioner has submitted that as
against one post of Superintending Engineer, two posts of
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Chief Engineer have been created. If the Managing
Director was so concerned about the development of the
projects, then he ought to have made a request to the
Government for filling up the post of Superintending
Engineer, but that has not been done up till now. The
entire exercise of the Managing Director appears to be
mala fide as he has initiated the process of upgradation of
post only after the interim order being passed by this Court
and statement being given by him on 6-10-2016 in regard
to compliance, on which date he wrote a letter for the
upgradation of post.
60. The learned counsel for the opposite parties have
submitted that the creation of post is a matter falling within
the domain of the Government, but if the Government is
creating or abolishing a post, then the element of mala
fides should not be there and the decision should be taken
as a policy matter. But we fail to understand as to in what
manner the policy matter has been taken by the
Government. The Finance Department is only concerned
with the financial implications. Whether there was genuine
necessity or whether the Managing Director's demand in
regard to upgradation of post of Chief Engineer is a valid
demand looking to the suffering of the development work,
then the matter ought to have been referred to the Bureau
of Public Enterprises which is a body available for all
corporations in the State of Uttar Pradesh for such matters,
which could have given a proper opinion being expert
body. The upgradation has not been demanded in normal
circumstances and the same has been demanded after the
litigation ensued in this Court. This itself goes to indicate
that when the Apex Court set aside the order dated 27-10-
2016 passed by this Curt and approved the order dated
22-11-2016 issued by the opposite parties allocating nine
divisions to the petitioner. It was incumbent upon Opposite
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Party 6 to have disclosed before the Apex Court regarding
order dated 22-11-2016 allocating the work to the
petitioner in pursuance to the order of this Court was
approved by the Apex Court but in a different form. The
attention of the Apex Court was not drawn towards the fact
as to how many revenue divisions are there in the State of
U.P. and the Apex Court also specifically indicated that this
order will govern the proceedings for the present, but if any
proceedings arise in future, then the rigour of the order of
the Apex Court does not come in the way of the petitioner.
The petitioner is at liberty to challenge the aforesaid
proceedings, which require to be challenged after the order
of the Apex Court. It is to be noted that up till 23-11-2016,
no order was brought on allocating the work to Opposite
Party 8, though orders have been passed by the Board in
favour of Opposite Party 8 by the Managing Director on
11-11-2016. Had it been there before the Apex Court, the
mala fides of the opposite parties would have been writ
large. No doubt, creation of post has been held to be
13
prerogative of the Government in M. Ramanatha Pillai ,
18 15
N.C Singhal vs. Union of India , and Navneet Verma ,
wherein the following principles were culled out: ( Navneet
15
Verma case , SCC p. 70, para 17))
"17. We summarise the power of the Government in
abolishing a post and role of the court for
interference:
(a) the power to create or abolish a post rests with
the Government;
(b) whether a particular post is necessary is a matter
depending upon the exigencies of the situation and
administrative necessity;
(c) creation and abolition of posts is a matter of
government policy and every sovereign government
has this power in the interest and necessity of
internal administration;
18
(1980) 3 SCC 29
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(d) creation, continuance and abolition of posts are
all decided by the Government in the interest of
administration and general public;
(e) the court would be the least competent in the face
of scanty material to decide whether the Giovernment
acted honestly in creating a post or refusing to create
a post or its decision suffers from mala fides, legal or
factual;
(f) as long as the decision to abolish the post is taken
in good faith in the absence of material, interference
by the court is not warranted.”
One thing important to note is that in clause (f) of the
aforesaid paragraph, the Apex Court has specified that as
long as the decision to abolish the post is taken in good
faith in the absence of material, interference by the court is
not warranted.
61. In the present case, we find that there is enough
material to indicate the mala fides of Opposite Party 6 in
regard to demand for upgradation of the post and at no
point of time any letter has been written either by the
earlier Managing Director or by the present Managing
Director that the development work of the Corporation was
suffering. It is only when the petitioner has not obliged the
present Managing Director for reconsidering the
cancellation of allotment of plot in favour of the Indus
Society, a committee was constituted by Opposite Party 6
on 4-8-2016 immediately after he took over the charge on
1-8-2016. The petitioner's specific stand was that the
matter is sub judice in the Court and, therefore, it will not
be proper to review the cancellation order. The judgment is
still awaited in the present pending writ petition challenging
the cancellation order at Allahabad and nothing has been
brought on record by the opposite parties in this regard.
62. The creation of post was considered by the Apex
19
Court in Union of India v. Malti Sharma , wherein the Apex
19
(2006) 9 SCC 262
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Court considered the question of mala fides and observed
as under: (SCC pp. 268-69, paras 16-19)
"16. In any event, out of five posts only one post was
sanctioned by the Government of India. It is neither
denied nor disputed that the post of Inspector is an
essential one so as to enable the Council to carry out
its statutory function. The learned Single Judge has
clearly indicated that the Inspector plays an important
role in the Council. He inspects the colleges only for
the purpose of grant of recognition and on the basis
of the report of the Inspector alone, the Executive
Council considers the proposal for grant of
recognition to such institutions. The main purpose of
the Council, therefore, cannot be performed in the
absence of an Inspector or a person authorised to
perform the said duties. In any event, the
aforementioned office memorandum dated 3-5-1993
will have no application in the instant case as the
post was not held in abeyance. It was filled but the
services of the respondent were terminated which
was questioned by her by filing a writ petition before
the High Court. The said writ petition was admittedly
pending. In fact, the judgment was reserved. Despite
the fact that the writ petition was pending for a period
of three years, as to why the Government was
approached for the purpose of obtaining a direction
that the stood abolished is not known. Even in view
of the findings of fact recorded by the High Court, the
authority concerned took recourse to suppressio veri
and suggestio falsi . It had not been disclosed that a
writ petition was pending.
17. It is furthermore not in dispute that after the
pronouncement of the judgment of the High Court the
respondent has been reinstated. Whether the post
had been revived before such reinstatement again
has not been disclosed.
18. It is, therefore, evident that Appellant 2 tried to
overreach the Court. Its action was plainly mala fide
both on facts as well as in law.
20
19. In Union of India vs. V. Ramadrishnan , this
Court observed:
’32. … But, even where the tenure is not
specified, an order of reversion can be
questioned when the same is mala fide. An action
taken in a post-haste manner also indicates
malice. (see Bahadursinh Lakhubhai Gohil vs.
21
Jagdishbhai M. Kamalia , SCC para 25.)’ ”
20
(2005) 8 SCC 394
21
(2004) 2 SCC 65
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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:-
“65. There have to be some safeguards as observed in
22
Parshotam Lal Dhingra vs. Union of India , regarding abolition of
post and the Government cannot exercise its power unilaterally
unless the Government is able to establish that the decision has
been taken in good faith and as a public policy. The policy has to
be laid down by the Government by observing certain
proceedings. In the present case, it appears that no policy has
been taken by the Government at the level of the Council of
Ministers. The post has been upgraded only with a view to get rid
of the petitioner or to deprive him from functioning as Chief
Engineer. The aforesaid exercise by Opposite Party 6 and the
State Government IS mala fide. The charge has been given to the
Executive Engineer on officiating basis. No Superintending
Engineer is existing in the Corporation. Whether the charge can
be given to an Executive Engineer irrespective of the fact that the
post of Superintending Engineer is existing, is also questionable. It
appears that Opposite Party 8 is a blue-eyed boy of Opposite
Party 6 and that is why he has been given the charge of the
upgraded post. The charge given to Opposite Party 8, therefore, in
the aforesaid circumstances, does not appear to be a valid
exercise of power under law. The posts which are existing in a
cadre, are meant for that cadre only and for every cadre work has
been defined in the service rules. What experience would be there
with the General Manager Development to function as a Chief
Engineer (Project) and what is the qualification of the two posts
and if the service rules have not been amended and no provision
has been made to fill up the post from engineering cadre, then in
22
AIR 1958 SC 36: 1958 SCR 828
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what manner the post can be filled up without there being any
amendment in the service rules, which is altogether a separate
cadre than the development cadre. The posts have been defined
separately and the channel of promotion has been given in the
schedule, which indicates that Deputy General Manager (Project)
can be promoted to the post of General Manager (Development).
There is one post of Deputy Manager (Industrial Area), which is
named as Deputy Manager (Project). The promotion channel has
been provided in development cadre and engineering cadre
separately and neither there is any government order nor has
anything been placed on record though in the upgradation order, it
has been said that the post will be filled up from the engineering
cadre. The opposite parties are to explain the same, but we feel
that the promotions in such a manner cannot be made without
there being any amendment in 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
23
Limited) & Ors. :-
“31. The jurisprudence around irregular versus illegal
appointments must not be blurred. An irregular appointment is
one where procedure is not strictly followed but the appointee
23
2025 SCC OnLine SC 1751
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is otherwise qualified and the post is sanctioned. An illegal
appointment, on the other hand, is void ab initio , such as
where the appointee is ineligible or the post does not exist.
When appointments are questioned on grounds of irregularity,
the inquiry must not end with detecting the infirmity but must
proceed further to distinguish those whose appointments are
unimpeachable. Justice demands separation, not erasure.
32. The High Court failed to apply the test of individual
scrutiny, which is now a bedrock requirement in service
jurisprudence. When appointments of large numbers of
persons are questioned, courts and authorities must:
(i) Separate the legally sustainable from the
unsustainable
(ii) Apply the test of eligibility and sanctioned strength
(iii) Assess whether there was fraud or
misrepresentation
(iv) Provide an opportunity of hearing before
cancellation
… … …
35. It must be underscored that the jurisprudential divide
between irregular and illegal appointments is neither artificial
nor academic. An appointment may be irregular if it deviates
from established procedure, but it crosses into the realm of
illegality only where it violates statutory mandates, is made
without the existence of a sanctioned post, or is tainted by
fraud. Conflating the two categories leads to manifest injustice,
particularly when individuals, who have no role in the
procedural defect, are visited with the severest consequence
of termination.”
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.
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5. The Result
For the foregoing discussion, the writ petition is allowed
as under:-
i) Respondent No.4’s appointment to the post of Chief
Executive Officer-cum-Secretary, HIMUDA is quashed
and set aside. Notification dated 27.05.2025 (Annexure
P-19) is quashed and set aside. Financial benefits drawn
by respondent No. 4 against this post till today, however,
shall not be withdrawn from him.
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.
Jyotsna Rewal Dua,
Judge
September 03 , 2026 (PK)
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