CWP No.8477 of 1990 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CWP No.8477 of 1990 (O & M) Date of decision : 11.5.2011 Dr.P.P.S.Coonar .........petitioner Vs. The State of Punjab and others .......Respondents CORAM : HON'BLE MR. JUSTICE K.KANNAN Present:- Mr.G.S.Bal, Advocate, for the petitioner Mr.K.S.Sivia, DAG, Punjab, for respondents No.1 & 2 None for respondents No.3 & 4 --- K.KANNAN, J (ORAL) :- 1. The writ petition seeks for a prayer to quash the order passed by the Financial Commissioner to State of Punjab on 7.2.1990 promoting Bhuvnesh Gupta as Assistant Professor on temporary basis against a short term vacancy for a period of six months or till the short term vacancy existed, whichever was earlier. The challenge was made by the petitioner on the ground that the petitioner had originally been in a non-teaching cadre in PCMS being a senior to the respondent No.3 and another person Tejbir Singh, who has arrayed as respondent No.4. For consideration to a post as Senior Lecturer on the teaching line, there had been a 75% quota for promotion and 25% for Direct Recruitment Quota. Respondent No.3 CWP No.8477 of 1990 (O & M) -2- had been promoted originally as as a Senior Lecturer on provisional basis on 29.5.1986 and at the same time, respondent No.4 had also been promoted against a vacant direct quota post on purely temporary basis. The appointments have been done subject to the recommendations of the Punjab Public Service Commission. The petitioner and respondent No.4 vied with each other for the direct recruitment quota posts and the petitioner had been placed at rank- 1 for the post and joined at the said post on 6.11.1986. This appointment had been done with the permission of the Punjab Public Service Commission. Respondent No.4 was ranked at No.3. He accepted the higher post on the direct recruitment also and joined on 20.11.1986. On 24.2.1987 the Government passed another order referring to the fact that respondent No.4 who had been initially appointed as a Senior Lecturter against a direct quota post, was adjusted w.e.f. 7.6.1986 on provisional basis against a promotion quota post for a period of six months or till his services were regularised. The petitioner did not challenge this order, being not aggrieved in view of the adjustment being done to him only on provisional basis and appointment itself was subject to the consideration of the Public Service Commission. The petitioner felt himself aggrieved only when the Government passed an order on 7.2.1990 promoting respondent No.3 from the post of Senior Lecturer to the Assistant Professor post even though the promotion as a Senior Lecturer itself was not approved by the Public Service CWP No.8477 of 1990 (O & M) -3- Commission. 2. The contention of the petitioner, therefore, was that since the promotion of respondent No.3 had not been approved by the Punjab Public Service Commission at the time when a provisional promotion was made on 29.5.1986, a further promotion ought not to have been granted from the Senior Lecturer post to Assistant Professor post, without securing the sanction from Punjab Public Service Commission. By such a process, respondent No.3 had got unjustly the promotion earlier to him although he was senior to him in the lower cadre. As against respondent No.4, the contention was that both in the manner of appointment against direct recruitment quota as well as under the promotion quota, respondent No.4 could not have been adjusted earlier and if he was under the adjustment purely on ad hoc arrangement, the adjustment in such post could not have rendered him eligible for the further promotion before considering the writ petitioner. In response to this contention Government took the plea that the promotion on provisional basis granted to Bhuvnesh Gupta as well as Tejbir Singh, respondents No.3 & 4, had been actually approved by the Public Service Commission and therefore, the promotion granted to them under the promotion quota on 29.5.1986 earlier to the posting at the higher post under the direct recruitment quota was justified and the petitioner cannot have any grievance about the further promotion granted to respondents No.3 & 4. CWP No.8477 of 1990 (O & M) -4- 3. On such a contention being taken, this Court had directed the Government to give the details of such concurrence with the Public Service Commission through appropriate proof of such contention. This direction issued on 30.3.2011 has ellicited an affidavit from the Joint Director to place on record the order of the Governor of Punjab detailing the information about the concurrence of the Public Service Commission. It is brought through the order dated 29.6.2004 issued by the Secretary to Punjab Government that in pursuance to Commission's communication dated 25.5.1994, the Public Service Commission approved the promotion of respondent No.3 but as against respondent No.4, the contention was that the Commission had make the regularisation of the promotion of Tejbir Singh only on 6/9.1.2003. I do not see this letter as a full compliance of direction already given by this Court. The communication of approval to the promotion of Dr. Bhuvnesh Gupta purported to have been given on 24.5.1994, is still not been placed before this Court. It must be noticed that if the approval granted to Bhuvnesh Gupta was made only subsequent to the order dated 7.2.1990, it would itself amount to an admission that respondent No.3 was being promoted from the post of Senior Lecturer to the post of Assistant Professor even before his appointment as Senior Lecturer, was approved by the Service Commission. The petitioner's stand get vindicated the facts brought through the order dated 29.6.2004. If the petitioner was appointed in the direct recruitment CWP No.8477 of 1990 (O & M) -5- quota as Senior Lecturer on 6.11.1986 and the promotion granted to respondents No.3 & 4 were merely provisional and the approval had not been given till 24.5.1994 then it should only be taken that the petitioner was entitled to treat himself as being eligible for the further promotion on the day when the promotion was given to respondent No.3 on 7.2.1990. The person holding to a promotional post on ad hoc basis cannot secured to him to better then a person who had already secured the post in the lower cadre as a Senior Lecturer. If there was vacancy available to the Assistant professor post, the petitioner's merit consideration to such promotion before it was granted to respondent No.3 or respondent No.4. The order passed on 7.2.1990 appointing respondent No.3 as an Assistant Professor from the post of the Senior Lecturer when admittedly his promotion as a Senior Lecturer is still has not been approved by the Commission, was definitely opened to a challenge and the petitioner obtain redress on such grievance. 4. It is stated that the petitioner and the respondents have retired from the posts and any order will not have any adverse effect on the posts held by respondents No.3 & 4. As far as the petitioner is concerned, he is entitled to be treated as promoted on 7.2.1990 when respondent No.3 was promoted. The petitioner is entitled to competetive of benefits that may accrue to him. Further, I would denied and the denial of promotion to him on the day when his junior was promoted to him was not tenable. CWP No.8477 of 1990 (O & M) -6- 5. The counsel for the petitioner states that the petitioner gained his promotion to the Assistant Professor's post from 29.9.1991. The petitioner shall be granted promotion notionally from 7.2.1990, the date when the 3rd respondent was promoted to the Assisstant Professor's post. The petitioner will not draw any additional remuneration between the period 7.2.1990 to 19.9.1991. All terminal benefits accrued to the post and the scale which would have drawn, if he had been promoted w.e.f. 1990, shall however be calculated and granted to the petitioner within 12 months from the date of receipt of the copy of this order. 6. The writ petition is allowed on the above terms. (K.KANNAN) JUDGE 11.5.2011 akm