CWP No.2114 of 2009 : 1 : In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 12.05.2009 (1) CWP No.2114 of 2009 Savita Puri and another ... Petitioners Versus The State of Punjab and others ... Respondents (2) CWP No.2105 of 2009 Kumari Sunita Chhabra and others ... Petitioners Versus State of Punjab and others ... Respondents (3) CWP No.2251 of 2009 Milandeep ... Petitioner Versus State of Punjab and others ... Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.RD Bawa, Mr.Kapil Kakkar and Mr.Harinder Sharma, Advocates, for the petitioners. Mr.NDS Mann, Additional Advocate General, Punjab, for the respondents. PERMOD KOHLI, J. (Oral): Aggrieved of the order dated 27.01.2009 (Annexure P-13) withdrawing the promotions made to the Post of Lecturers (Chemistry), the petitioners have filed these petitions for quashing of the same and other consequential and related reliefs. It may be useful to briefly notice the factual background leading to the filing of these petitions. The petitioners in these petitions were working as Science CWP No.2114 of 2009 : 2 : Masters/Mistresses. They possess M.Sc. Qualification. The next promotion in the hierarchy of service is to the post of Lecturer (Chemistry). The promotion to the next post is governed and regulated by the statutory rules, namely, Punjab State Education Class -III (School Cadre) Service Rules, 1978 (hereinafter referred to as “1978 Rules”). Some of the relevant rules may be noticed herein. Rules 2 (d) defines “Director” whereas Rule 2 (g) defines “service” created by the Rules and reads as under:- “2 (d) “Director” means the Director of Public Instructions (Schools), Punjab. 2 (g) Service means the Punjab State Education Class-III (School Cadre) Service.” Rule 5 of 1978 Rules deal with appointment to the various posts in the service, whereas Rule 8 specify the appointing authority. Similarly, Rule 9 deals with the method of appointment. All these rules are quoted hereunder:- “5. (1) No person shall be appointed to any post in the service unless he possesses necessary qualification and experience as laid down in Column 3 of the Appendix “B” to these rules. 8. Appointment to the posts in the service shall be CWP No.2114 of 2009 : 3 : made by the Director. 9. (1) ( Method of appointment): Appointment to the posts in the service shall be made in the manner indicated against each post in Appendix “B” to these rules.” It is not in dispute that all the petitioners were in possession of the requisite qualifications and the eligibility criteria for promotion to the post of Lecturer in Chemistry. They were promoted vide order dated 17.04.2006 (Annexure P-4). This promotion was made by the Director Education Department (Secondary Education), Punjab, Chandiarh. It is also admitted case of the parties that the criteria for such promotion was notified by the State Government vide order dated 29.12.2000 (Annexure P-6) whereby various Departmental Promotion Committees were constituted for considering the case of promotion. This circular/government instructions also provides various parameters for promotion and the minimum Bench Marks required for a candidate seeking promotion. The aforesaid government instructions were supplemented by another government instructions dated 06.09.2001 (Annexure P-7). All the petitioners joined their respective promotional posts. The respondents, however, passed the impugned order dated 27.01.2009 (Annexure P-13) withdrawing promotions on the ground that the posts of Lecturers fall in Group-B and their promotions were required to be made by the Government and since the promotions were not made by the competent CWP No.2114 of 2009 : 4 : authority, an enquiry was constituted and on the basis of the recommendations of the enquiry report, the promotions in question are being withdrawn. It is, however, specified that before withdrawing the order of promotion, Show Cause Notices were issued to 23 employees whose promotions is sought to be cancelled. Another factor mentioned in the order is that some of the senior employees could not be considered for promotion. I have heard the learned counsel for the parties at length. Mr.R.D. Bawa, learned counsel appearing for some of the petitioners has referred to the basic recruitment rules, namely, 1978 Rules, noticed hereinabove. Rule 2 (d) defines “Director” which means the Director of Public Instructions (Schools), Punjab. Rule 2 (g) defines the service. Under Rule 5, no person is entitled to be appointed unless he possesses the requisite qualification and experience as laid down in Column -3 of Appendix-B to these rules. Under Rule 8, the appointing authority for the post in the service is the Director as defined under Rule 2 (d). Rule 9 prescribes the manner of appointment to the service as laid down in Appendix-B to the aforesaid rules. As per Appendix-B, 75 per cent posts of Lecturers are required to be filled up by promotion from amongst the Master and Mistresses, whereas 25 per cent posts are required to be filled up by direct appointment. Admittedly, all the petitioners fall in the promotional quota. It is no body's case that sufficient vacancies were not available for promotion. It is also no body's case that the petitioners were not eligible or qualified at the time of their promotion. The only dispute in this case is the competency of the authority granting promotion. In so far as CWP No.2114 of 2009 : 5 : the averment made in the impugned order is concerned that some senior employees have not been considered, no material has been placed on record to show that some senior eligible employees were ignored at the time of promotion nor this question has been argued during the course of hearing. The moot point for consideration before this Court is whether the Director was competent authority for granting promotion to the petitioners and whether the promotion accorded was in contravention of the rules and has been rightly recalled/withdrawn vide the impugned order dated 27.01.2009 (Annexure P-13). The promotion of the petitioners were made by the Director who is defined as the appointing authority under the 1978 rules. The government thereafter issued notification dated 18.12.2001 (Annexure P-8) amending the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 (hereinafter referred to as the “1994 rules”). Rules 2,3 and 4 are the relevant for the purposes of these petitions which are as under:- “ 2. In preamble of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994, for the figures sign and words “Class I, Class II and Class III, the sign and words “Group A, Group B and Group C” shall be substituted. 3. In the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 (hereinafter referred to occurring, the sign and CWP No.2114 of 2009 : 6 : words “Group A, B and Group C to be substituted respectively. 4. In the said rules in rule 2 for clause (g), the following shall be substituted, namely, “(g)” service means any Group A service,Group B Service and Group C Service constituted in connection with the affairs of the State of Punjab as per scales given in the Appendix.” By virtue of the aforesaid amendment, earlier classification of various cadres of service i.e. Class-I, II and III stands substituted and replaced by Group-A, B and C, respectively. Admittedly, this amendment has been carried out in the 1994 Rules which are different than the recruitment rules framed by the State for the service in question. However, sources for both the rules i.e 1978 rules as also 1994 rules, is the proviso to Article 309 of the Constitution of India. After the aforesaid amendment and/or classification of various categories of service, the appointing authority for Group-B service, to which the petitioners belong in their capacity as Lecturer (Chemistry), is the government. It is contended by Mr. Mann, learned Additional Advocate General, Punjab, appearing for the respondents that the amendment having been carried out and in operation at the time of the promotion of the petitioners vide order dated 17.04.2006, it was the State Government which was the competent authority to make promotions and the promotions having been made by the Director, who was not competent to make such promotions, the impugned order is justified, legal and valid. To meet the CWP No.2114 of 2009 : 7 : aforesaid argument, Mr.Bawa has taken me through the various notings from the government record, collectively produced as Annexure P-20. It is pertinent to refer to these notings which are on record. On 07.03.2006 the Education Minister, Punjab, initiated a note for making promotions for the teaching as well as non-teaching categories. As per this note 9991 vacancies in various categories were available and it was directed that these vacancies may be filled up within 15 days. As many as 2341 vacancies of Lecturers were identified out of which 2281 vacancies were notified as vacant. Vide communication dated 30.03.2006, the Secretary/Education Minister asked the Director Public Instructions (S.E.), Punjab, Chandigarh, to file the action taken report as per the earlier instructions of the Minister to fill up the vacant posts and he was asked to seek report on the same day positively and reasons for the delay were also called for. The Director, Public Instructions (S.E.), Punjab, Chandigarh, vide communication dated 30.03.2006 forwarded his report wherein he indicated that 2200 posts of Lecturers are lying vacant and on account of the amendment, the posts of Lecturers are re-designated and fall in Group-B, but there is no corresponding amendment in the relevant rules. He requested for amendment of the Rules. From further noting dated 31.03.2006, it appears that the Education Minister asked for the list of officials due for promotion as on 31.03.2006, by 10.04.2006. Again a note was forwarded by the Director on 04.04.2006 wherein it was indicated that promotions could be made immediately only till the date the rules are not amended, the approval for disposal of promotion cases of these posts at Directorate level is given. This request has been approved by the Education Minister on the same day. After the aforesaid approval, the Director of Public Instructions (S.E.), CWP No.2114 of 2009 : 8 : Punjab, initiated process of making promotions as is evident from the various notings. The proposal for promotions placed before the Education Minister was approved by him on 10.04.2006. It seems that the order of promotion dated 13.04.2006 was a follow up action of the aforesaid approval by the Education Minister. The authenticity of various notings contained in Annexure P- 20 has neither been disputed in the reply filed by the respondents nor any record has been produced to rebutt the said notings. Thus, it is safe to rely upon these government notings which remain un-rebutted and undisputed. It is also not in dispute that the Education Minister is the appointing authority. It is argued on behalf of petitioners that the amendment in the 1994 Rules is of no use, unless there is corresponding amendment in 1978 rules. From the reading of 1994 rules, particularly preamble thereof, it appears that these rules are supplemental to all the recruitment rules in the State. Applying the doctrine of harmonious construction, there is no conflict between the two rules. By virtue of amendment in 1994 Rules, firstly, the designation of Class-I, Class-II and Class-III posts is changed to Group-A, Group-B and Group-C. Secondly, the authority to appoint Group- B posts is vested in Government. Be that as it may, the fact remains that the promotion of the petitioners was duly approved by the government before the issue of the promotion order and according to the stand of the respondents-State, Government is the appointing authority. The promotions made on 17.04.2006, thus, had the sanction and approval of the Government. The impugned order withdrawing the promotion on that count is, thus not sustainable in law and liable to be quashed. CWP No.2114 of 2009 : 9 : For the reasons recorded above, all these petitions succeed and are allowed. The impugned order dated 27.1.2009 (Annexure P-13) withdrawing the promotions of the petitioners in all these cases is hereby quashed. All the petitioners except petitioner-Milandeep in CWP No.2251 of 2009 and Petitioner-Savita Puri in CWP No.2114 of 2009, are continuing on the promotional posts of Lecturer (Chemistry). These two petitioners, however, reverted back to their original posts of Science Mistresses. In view of the quashment of the impugned order, their promotions stands revived and they shall be deemed to have been promoted with effect from 17.04.2006 and will be entitled to all consequential benefits. No costs. 12.05.2009 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES