HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.8684 of 2007 (O&M) Date of Decision: 23.08.2011 **** Nand Kishore . . . . Petitioner VS. State of Punjab & Ors. . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. HS Saggu, Advocate for the petitioner Mr. PC Goyal, Addl. AG Punjab ***** SURYA KANT, J. (ORAL) (1). Recruitment to the post of Naib Tehsildar is regulated by the statutory Rules known as the “The Punjab Naib Tehsildars (Class-III) Service Rules, 1984 (in short, ‘the Rules’). Rule 7 thereof lays down the method of appointment and qualification and it reads as follows :- “7. Method of appointment and qualification – (1) Subject to the provision of Rule 8, appointments to the post in the Service shall be made in the following manner, namely:- (i) fifty per cent by direct appointment; (ii) fifty per cent by promotion from amongst the following categories of the officials working in the Division under the control of the Department of Revenue and Rehabilitation (Revenue CWP No.8684 of 2007.doc - 2 – Organisation) who have passed the departmental examination specified in the regulations:- (a) District Kanungo who has worked as such for a minimum period of five years; (b) Senior Revenue Accountants and District Revenue Accountants who have worked as such for a minimum period of five years; (c) Kanungo who has worked as such for a minimum period of five years and out of these five years has worked as Field Kanungo for a minimum period of two years: Provided that a District Kanungo, a District Revenue Accountant, a Senior Revenue Accountant or an Assistant Waterlogging, who has been appointed as such by promotion from the post of Kanungo will be eligible for consideration against the post earmarked for Kanungo in sub-clause (c) above, provided they possess the experience specified therein: Provided further that if no suitable candidate is available for appointment by promotion to the service, appointment may be made by transfer of an official who is a graduate of the recognized university and is working as Assistant Consolidation Officer in the Department of Revenue and Rehabilitation or Ziledar in the Department of Irrigation.” (2). Rule 8 requires certain Registers to be maintained in the following manner:- CWP No.8684 of 2007.doc - 3 – “8. Registers to be maintained. – The following registers of candidates shall be maintained by each Commissioner, namely:- (i) Register ‘A’ in which shall be entered the names of candidates for direct appointment on the basis of the recommendations of the recruiting authority in the order of merit assigned to them by such authority; (ii) Registers ‘B’, ‘C’ and ‘D’ in which shall be entered the names of the candidates from the categories mentioned in sub-clauses (a), (b) and (c), respectively, of clause (ii) of rule 7; Provided that while entering the names of candidates in Registers ‘B’, ‘C’ and ‘D’ from the same district cadre, their inter-se seniority in the cadre shall not be disturbed” (3). Rule 9 of the Rules lays down the method of appointment to be made as per the roster points earmarked for different sources of recruitment in a slab of fifty vacancies each. The first proviso to Rule 9 says that “if no suitable candidate is available on a particular Register, the vacancy earmarked for candidates from the Register may be temporarily filled in from amongst candidates borne on any other Register”. (Emphasis applied) (4). The controversy herein pertains to the posts to be filled in from Register ‘A’ i.e. direct recruitment. CWP No.8684 of 2007.doc - 4 – (5). Respondents NO.5&6 are Field Kanungos and belong to Register ‘D’. They have been promoted against the posts meant for direct recruitment, of course, ‘temporarily’. (6). The petitioner is a Senior Assistant and is eligible for promotion under Register ‘C’. He contends that since he is senior to respondents No.5&6 in terms of the length of service, the temporary promotion ought to have been made from Register ‘C’ instead of going to Register ‘D’. (7). The official respondents have filed their reply/affidavit, which is apparently misleading and is fully devoted to justify the promotion of respondents No.5&6 as if they have, as a matter of right, claim for such promotions against the post of Register ‘A’. (8). The scheme envisaged by the statutory Service Rules is plain, unambiguous and calls for no detail discussion. Suffice it to mention that proviso to Rule 9 is an exception to the main Rule and has to be construed strictly. In other words, powers under that proviso can be sparingly invoked if no ‘suitable’ candidate in a particular source of recruitment is available. “Suitability” can be judged only through a selection process. Unless the posts meant for direct recruitment i.e. Register ‘A’ are advertised and recruitment process concluded, it is totally farcical to assume that no suitable CWP No.8684 of 2007.doc - 5 – candidate is available. The first proviso to Rule 9 merely enables to meet the administrative exigencies namely to make temporary appointments as and when suitable candidates from a particular source are not available. If the powers under the proviso is frequently invoked, it shall amount to playing fraud on the Rules and through colourable exercise of power. The case in hand appears to be the one of that category. (9). The petitioner and/or respondents No.5&6 have absolutely no right to claim promotion against the posts falling under Register ‘A’ unless the Recruiting Agency, after an exhaustive selection process, finds no suitable candidate. No such exercise has been admittedly undertaken by the respondents. (10). For the reasons afore-stated, the writ petition is allowed to the extent that the promotion granted to respondents No.5&6 is hereby quashed. The petitioner’s claim for promotion is also rejected. The official respondents are directed to initiate the recruitment process to fill up the posts earmarked for Register ‘A’. Till such process is completed no temporary promotion against the posts meant for Register ‘A’ shall be made. (11). Ordered accordingly. Dasti. 23.08.2011 Vishal shonkar (S u r y a K a n t) Judge CWP No.8684 of 2007.doc - 6 –