Arbitrary Departure From Established Practice of Treating Deputation Vacancies as Promotable Posts Constitutes Discriminatory Denial of Promotion

The petitioner, serving as a Joint Controller in the Himachal Pradesh Finance & Accounts Service (HPF & AS), became eligible for promotion to the post of Controller in 2025.

The recruitment rules mandate 100% promotion from Joint Controllers with 3 years of service.

Two vacancies arose due to the retirement of incumbents in November 2025 and January 2026.

Although the Department initiated a proposal for a Departmental Promotion Committee (DPC) in February 2026, it subsequently refused to convene the DPC, citing a clarification from the Department of Personnel (dated 11.03.2026) which stated that posts vacated by persons on long-term deputation/secondment should not be filled.

The petitioner, set to superannuate on 31.03.2026, challenged this as discriminatory, noting that the Department had historically treated such deputation-linked vacancies as "vacant" for promoting her seniors.

1. Whether the respondent-Department’s refusal to convene a DPC based on a change in policy, despite a consistent past practice of treating deputation-linked vacancies as promotable posts, constitutes actionable discrimination.

2. Whether an employee on the verge of superannuation can claim a right to be considered for promotion against vacancies that arose during their service period when a DPC was already proposed.

The Court acknowledged the general legal principle that posts held by incumbents on deputation are not technically vacant as the lien remains with the parent department.

Principle of non-discrimination and Article 14 of the Constitution to prevent the Department from arbitrarily departing from a long-standing established practice for a specific candidate.

Precedent regarding the treatment of long-term deputation vacancies in Vibhore Kumar Sharma v. State of Himachal Pradesh (CWP No. 8098 of 2023).

The Court reasoned that while the Department of Personnel's instruction (dated 11.03.2026) generally prohibits filling deputation vacancies, the respondent-department had consistently bypassed this rule since 2006 to promote the petitioner's seniors.

By initiating the DPC process in February 2026 and then withdrawing it just as the petitioner was to retire, the Department acted arbitrarily.

The Court noted that the "rules of the game" should not be changed to the detriment of a candidate who had a legitimate expectation of similar treatment as her predecessors.

The Court emphasized that justice required holding the DPC for the petitioner while permitting the Department to enforce its new policy strictly for future vacancies.

The Court directed the respondents to hold a DPC effective as of 31.01.2026 to consider the petitioner for promotion to Controller. If found fit, she is entitled to all consequential benefits.

The Court clarified that this direction is based on "peculiar facts" and is not a general precedent; it reaffirmed that, legally, deputation-linked posts should generally only be filled on an officiating basis.