REGULAR SECOND APPEAL NO.3084 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 02, 2010 Dilbagh .....Appellant VERSUS Pala Ram and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. K. Malik, Sr.Advocate with Mr. Jatinder Bedwal, Advocate, for the appellant. Mr. R. N. Sharma, Advocate, for respondent No.2. None for respondent Nos.1 and 3. **** RANJIT SINGH, J. This order will dispose of Regular Second Appeal Nos.3084 of 2009 (Dilbagh Vs. Pala Ram and others) and 3859 of 2009 (The Jind Cooperative Sugar Mills Ltd., Jind Vs. Pala Ram and others). Respondent Pala Ram filed a suit seeking declaration that he was entitled to promotion as a Boiler Attendant w.e.f REGULAR SECOND APPEAL NO.3084 OF 2009 :{ 2 }: 28.7.2004, when Dilbagh Singh, appellant, was promoted to this post. He also made a claim for benefit of pay and allowance alongwith 18% interest per annum. The facts, in brief, are that Pala Ram had joined Jind Cooperative Sugar Mill (defendant No.1) on daily wages on 23.2.1985 as unskilled worker. With effect from 26.10.1985, he was appointed as unskilled worker in the Engineering Department. He claims to have improved his qualification and obtained Second Class Boiler Certificate. As per respondent-plaintiff, he fulfilled all the necessary qualification and experience for the post of Boiler Attendant, for which there were four posts in the appellant-Mill. Respondent-plaintiff also claimed that he was at Sr.No.1 of the seniority list on death of one Kameshwar, Boiler Attendant. His grievance is that though he was entitled and eligible for promotion, but Managing Director had arbitrarily appointed Dilbagh Singh, appellant, who is junior to him. The defendant contested the suit. The material averments were denied. Some preliminary objections were also raised about the maintainability, jurisdiction and suit being false and frivolous. It is pointed out that respondent-plaintiff was an unskilled worker till his designation was changed as Fireman in semi-skill grade. It is also stated that he was considered for post of Boiler Attendant alongwith appellant Dilbagh Singh and Sh.Prem Singh, when Dilbagh Singh was appointed, considering his qualification and experience. The Trial Court decreed the suit and directed the mill to promote respondent Pala Ram. The appellant Mill thereafter filed an appeal. Dilbagh Singh also filed an appeal. Both the appeals, however, were REGULAR SECOND APPEAL NO.3084 OF 2009 :{ 3 }: dismissed on 6.6.2009 and so Dilbagh Singh, appellant and the mill have filed these two Regular Second Appeal Nos.3084 of 2009 (Dilbag Singh Vs. Pale Ram) and 3859 of 2009 (The Jind Cooperative Sugar Mills Ltd., Jind Vs. Pala Ram and others), which are being disposed of by this common order. Senior counsel appearing for appellant, Dilbagh Singh, would refer to the Service Rules of the employees and specially Rule 6, which is regulating method of recruitment. As per the counsel, recruitment is by way of promotion, on deputation and direct recruitment. The method of appointment through promotion is as follows:- “By promotion from permanent/temporary employees of the Society, who is fulfilling the qualification and experience of the post and having good work and conduct.” Learned counsel would want this rule to read in a manner to say that promotion could not be made only on the basis of seniority. The counsel contends that rule would convey a principle of seniority and some element of selection. Plea is that some element of selection would come into play as seniority alone would not be criteria to promote a person as per the above rule. The manner in which this Rule is worded would clearly show that the first requirement of the rule is to see the qualification and experience of the person under consideration. If this condition is satisfied, then his work and conduct would come into play. If the Rule is construed in the manner as suggested, then it would mean that the promotion is to be made on merit-cum-seniority basis. The REGULAR SECOND APPEAL NO.3084 OF 2009 :{ 4 }: person with less merit, though senior, could then be open to be ignored. In fact, the learned counsel was quite candid not to so urge that the rule is merit-cum-seniority but only went to the extent of stating that there is some element of selection involved while promoting as per the wording of the Rule. `Having good work and conduct' can only mean minimum standard and can not be read in the manner that comparative merit is to be seen. The wording of the rule is akin to fitness rather than comparative merit. If the intention was to make a comparative merit as criteria for promotion then rule was required to be so worded clearly. Language of the rule being clear without any ambiguity, nothing can be added to the rule. As per the Rule, what is to be seen is `work and conduct' which should be good. Rule does not convey that the work of two employees is to be compared and so also their conduct. Record does not show that the work or conduct of the respondent-plaintiff was not good. It would not matter if the work of appellant was comparatively better when respondent has good work to his credit. The first Appellate Court had rightly posed a question as to how the claim of equally placed person with Dilbagh Singh be ignored and he selected ignoring the seniority? It is urged that Dilbagh Singh was working as a Boiler Attendant from 2002 and 2003, but it could not be established. The plea that appellant Dilbagh Singh became eligible for the post of Boiler Attendant in 2002 also could not be proved. Since appellant Dilbagh Singh could not be shown to be working as Boiler Attendant, mere eligibility could not have given him better experience. All the persons under consideration, however, were qualified on the date of REGULAR SECOND APPEAL NO.3084 OF 2009 :{ 5 }: consideration. The observations of the Appellate Court could not be faulted in any manner when it has observed that senior even though less meritorious if had secured the minimum necessary bench marks shall have priority and is not required to compete with others on the scale of merit alone. Reference in this regard was made to the ratio of law laid down in Parveen Kumar Vadehra Vs. PGI, Chandigarh and others, 2004 (4) RSJ 424 (P&H). It was held that the petitioner in this case could not be ignored for promotion merely because person junior to him had better merit. As already noticed, the rule governing the promotion can not be read in a manner to allow junior to steal march over the senior on the basis of a better merit. What is required to be seen is whether the senior has fulfilled the essential qualification and is otherwise fit, his work and conduct being good, then it would not be open to ignore him and junior preferred. To similar effect would be the ratio in Hakam Singh Vs. State of Punjab and others, 2005 (4) RSJ 302 (Delhi). The rule of promotion, thus, can not be read in a manner as urged by learned counsel appearing for the appellants. This rule, at the most, is rule of seniority-cum-fitness and, thus, no case for interference in the concurrent findings recorded by the Courts below is made out. The wording of the rule being clear and categoric would not call for any interpretation on the ground that any substantial question of law is raised. Both the appeals are, therefore, dismissed. February 02, 2010 ( RANJIT SINGH ) khurmi JUDGE