CWP No.1413 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.1413 of 2009 Date of decision 25 .8.2009 Prithi Singh ... Petitioner Versus National Insurance Company Limited and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Manoj Kumar Sood,Advocate for the petitioner Mr. Paul S.Saini, Advocate for respondents 1 to 4 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The petitioner who is working on the post of Record Clerk with the National Insurance Co. ltd.- respondent no.1 has approached this Court for issuance of a direction to the respondents to promote him on the post of Assistant in accordance with the promotion policy of 2003 (for brevity 'the 2003 policy') on the ground that the posts of Assistant had accrued before the new promotion policy of 2008 came into force w.e.f. 15.9.2008 (for brevity 'the 2008 policy'). In the alternative a prayer for declaring Rule 17 (1) of 2008 policy as illegal and unconstitutional granting weightage to a candidate for every completed year of service counting from the initial date of appointment as against from the date of appointment to the cadre post have been provided as ultra vires. The petitioner was appointed as subordinate staff on 4.11.1987 CWP No.1413 of 2009 2 which is a class IV post. He was promoted as Record Clerk, which is a Class III post, on 29.7.1991 and has been working as such to the satisfaction of the competent authority. According to the averments made, respondent no.4 was appointed as subordinate staff on 13.5.1986 and was promoted as Record Clerk on 25.9.2000. The petitioner has claimed that in the cadre of Record Clerk, respondent no. 4 is junior to him. From the post of Record Clerk promotion to the post of Assistant is provided as per 2003 policy (P.1). It is claimed that in accordance with para 26 of the 2003 policy, only Record Clerk who has put in 10 years of service as such is eligible for promotion to the post of Assistant. The subordinate staff drivers etc. belonging to Class IV posts have not been made eligible for promotion to the post of Assistant. The petitioner has asserted that 125 posts of Assistants were circulated for being filled up by promotion after a number of years because earlier no exercise was undertaken to fill up these vacancies. It is only in 2008 that exercise was undertaken and 125 posts of Assistants alongwith other posts were circulated (P.2). Out of these 125 posts of Assistants, only two posts fell to the quota of Chandigarh region and one of the post is reserved for scheduled caste category and the other post is for general category. It is claimed that all these posts of Assistant had fallen vacant before October, 2008. The 2008 policy has been framed and enacted w.e.f. 15.9.2008. According to para 5 of 2008 policy, the cadre of Assistant and subordinate staff are treated as entry recruitment grades. 15 percent posts are to be filled up by way of promotion. According to the 2003 policy a Record Clerk having atleast 10 years of service as such was eligible for promotion. CWP No.1413 of 2009 3 According to para 15 of the 2008 policy confirmed subordinate staff/ driver/ Record Clerks have been made eligible for promotion to the cadre of Assistant by merging the cadre of subordinate staff, Driver and Record Clerks. The Record Clerk who has put in atleast 5 years of service is eligible for promotion to the post of Assistant; and Subordinate Staff and Driver who have put in atleast 10 years of service as full time employee are eligible for promotion as Assistant. According to para 17.1 of the 2008 policy for the post of Assistant 50 percent marks have been allocated to determine seniority. For each completed year of service in the cadre 2 marks are awarded whereas for promotion to the cadre of Scale 1 the weightage of 2 marks for each completed year in the subordinate staff is to be allotted (P.3). The petitioner cleared the departmental test which is meant for promotion to the post of Assistant and the Promotion Committee circulated the panel of eligible employees for promotion to that cadre. The name of the petitioner was placed at serial no.2 and that of respondent no. 4 was at No. 1 (P.4). The petitioner filed objections to the eligibility panel by asserting that he was promoted as Record Clerk w.e.f. 27.9.1991 whereas respondent no. 4 was promoted as Record Clerk on 25.9.2000 (P.5). It is claimed that respondent no.4 has been illegally promoted vide order dated 17.12.2008 (P.6). In the written statement filed by respondent nos. 1 to 4 a preliminary objection has been raised that petitioner after having participated in the selection process for promotion to the post of Assistant, the petitioner is estopped from challenging the same in the instant petition. It is further asserted that promotion to the cadre of Assistant has been effected strictly in accordance with the provisions of the 2008 policy. CWP No.1413 of 2009 4 Another objection raised is that remedy of appeal is available to the petitioner which has not been availed by him. The respondents have also asserted that the criteria for promotion is not the seniority alone and a number of other factors like qualification and work record are also taken into account. Under Clause 17(1) of the new promotion 2008 policy a criteria has been laid down which stipulates that for promotion to the cadre of Assistant two marks for each completed year of service in the insurance company as on December 31 of the preceding year are to be allocated. A reference has been invited to clauses 15,16 and 17 of the promotion policy to submit that seniority is one of the factors and the inter-play of other factors with seniority govern the promotion of an employee to the post of Assistant. Out of 100 marks, 50 marks have been allocated to seniority whereas 30 marks have been allocated for qualifications. The remaining 20 marks are to be assessed on the basis of work record. It is claimed that promotion of respondent no.4 has been made strictly in accordance with 2008 policy. The averment with regard to two posts falling vacant in Chandigarh region have been admitted. One of the post is earmarked for scheduled caste category and the other one is for general category. It has also been conceded that the cadre of Record Clerk has been merged with the drivers and subordinate staff. We have heard the learned counsel for the parties at length and have also perused the old and new promotion policy with their able assistance. Having heard the learned counsel, we find that the 2008 policy of the insurance company has merged the cadre of subordinate staff, drivers and record clerks. It has also come on record that the Record Clerk with 5 CWP No.1413 of 2009 5 years experience and drivers/ subordinate staff with 10 years experience would be eligible for promotion to the post of Assistant. The seniority itself is not the basis to grant promotion which again is based on a test where inter-se merit of the eligible candidates is weighed by taking into consideration the factors like seniority, qualification and the work record. Therefore, it cannot be concluded that it is a simple case of promotion based on seniority. We are further of the view that the petitioner has participated in the selection process knowing fully well of the selection criteria laid down in the 2008 policy. After the petitioner has participated in the selection process and having not qualified for promotion he would be estopped from challenging selection process. It is well settled proposition of law that after participation in the selection process the unsuccessful candidate would be estopped from challenging the selection so made. In that regard reliance may be placed on a judgement of Hon'ble the Supreme court in the case of Madan Lal v. State of Jammu and Kashmir (1995) 3 SCC 486 and Dhananjay Malik v. State of Uttaranchal (2008) 4 SCC 171. Therefore, the petitioner having participated in the selection process would be estopped from challenging the selection and promotion of respondent no. 4. We are also not impressed with the argument that para 17.1 of the 2008 policy ultra vires Article 14 of the Constitution. If two different cadre of employees belonging to Class III and IV have been merged together yet the condition for granting them promotion through selection process are different. For the subordinate staff/ Drivers a period of 10 years service is required to be fulfilled whereas for Record Clerks the experience for a period of five years is good enough. We do not find any legal CWP No.1413 of 2009 6 infirmity warranting interference under Article 226 of the Constitution. The writ petition is wholly without merit and is thus liable to be dismissed. For the reasons recorded above, this petition fails and the same is accordingly dismissed. (M.M.Kumar) Judge (Jaswant Singh) 25.8.2009 Judge okg