CWP No.1189 of 1987 : 1 : In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 24.09.2009 The Punjab State Account Service Association through its General Manager and others ... Petitioners Versus The State of Punjab and another ... Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr. Balram Gupta, Senior Advocate, with Mr.Shreesh Gupta, & Ms.Anamika Negi, Advocates, for the petitioners. Mr.SS Sahu, Assistant Advocate General, Punjab, for the respondents. PERMOD KOHLI, J. Petitioner No.1 claims to be an Association of Accounts Officers working in the State of Punjab, whereas petitioner Nos.2 to 8 are Accounts Officers working in different departments of the State of Punjab. They are also the Members of petitioner No.1 Association. The petitioners are aggrieved of promotion of respondent No.2 as a Treasury Officer to the post of Accounts Officer, the post re-designated as Senior Accounts Officer and have also challenged the legality of Rule 8 (a) of the Punjab State Accounts (Class-II) Service Rules, 1984, in so far it has fixed the quota for promotion to the extent of 20 per cent by transfer of the Treasury Officers belonging to the Punjab Finance and Accounts Service (Class-II) Rules, 1979. While giving the historical background of the Accounts Service and CWP No.1189 of 1987 : 2 : the relevant rules framed by the State under Article 309 of the Constitution of India, following averments have been made in the writ petition. The State Accounts Service was initially formed in the year 1957 to streamline the Accounting Procedure and to exercise control over the budget, finance and expenditure of the State in various fields/departments. The first statutory rules were framed in the year 1965, known as the Punjab State Subordinate Accounts Service (Class-III) Rules, 1965, which, inter-alia, provide for method of recruitment conditions of service for the lowest ranks of the Accounts Cadre i.e. Superintendents, Accountants and Senior Auditor. These rules were, later on, repealed and substituted by the Punjab State Subordinate Accounts (Class-III) Service Rules, 1978. Rule 6 of the aforesaid rules provids for method of appointment and reads as under:- “ Method of appointment: 6 (1) Appointments to the Service shall be made from amongst the officials of the Government who have passed both parts of the Punjab State Subordinate Accounts Service Examination (Ordinary Branch) (hereinafter referred to as the S.A.S. Examination) conducted by Government in accordance with such regulations as may be framed by Government in this behalf from time to time. (2) For the purpose of making appintments to the Service a merit list of all the candidates who passed the S.A.S. Examination shall be maintained CWP No.1189 of 1987 : 3 : in the following manner:- (i) A candidate who passes S.A.S. Examination (Parts I and II) in any Session shall be placed above the candidates passing the said examination held in a subsequent session. (ii) In the case of two or more candidates obtaining same number of marks at any examination (Part-I and II combined) merit shall be determined on the basis of their seniority in the office to which they belong and if they belong to different offices, the older member shall be senior to the younger. (3) The mere passing of the S.A.S. Examimation or for that matter the seniority in the list maintained under sub-rule (2) shall not be deemed to confer any right of appointment to the Service upon any candidate and appointment to the Service shall be made on the basis of seniority in the aforesaid list-cum-merit.” From the reading of the aforesaid rules, it is evident that for appointment to the service passing of Punjab State Subordinate Accounts Service Examination (for short the SAS Examination) was a condition precedent and even the seniority in the service was to be maintained on the basis of the passing of the examination etc. Petitioner Nos. 2 to 8 being CWP No.1189 of 1987 : 4 : the members of petitioner No.1-Association are stated to have passed their SAS Examination on various dates from 1965 onwards. The petitioners on joining the Accounts Cadre of the State became members of the service. In the year 1966 another set of Rules, namely, Punjab State Accounts Service (State Service Class-II) Rules, 1966 were framed for providing appointment to Class-II cadre service. The posts comprising this service have been specified in the Appendix”A”. Two categories of posts, namely, Assistant Accounts Officer and the Accounts Officers were included in this service constituted by these rules. Rule 7 of the Rules aforesaid deals with method of recruitment and reads as under:- “ 7. Method of recruitment- All posts in the Service shall be filled in (a) In the case of Accounts Officers: (1) By promotion from amongst (i) Assistant Accounts officers and Treasury officers of the Punjab Government (Appointed as such by transfer under Rule 7 (2) (i) (a) of the Punjab Finance and Accounts Service Class -II Rules, 1959) with at least three years service as such on the basis of their seniority in the Punjab State Subordinate Accounts (Class-III) Service and (ii) Senior Auditors working in the Local Audit Department, Punjab, who have passed the Subordinate Accounts Service Examination (Local CWP No.1189 of 1987 : 5 : Audit Department) and having at least six years service as such: Provided that fifty per cent posts shall be filled in from amongst the persons specified in Clause (i) and twenty-five per cent posts shall be filled in from amongst the persons specified in Clause (ii). (2) by transfer of:- (i) Class II Officers in the employment of the Punjab Government other than those mentioned in Clause (i) of sub-rule (i), who have qualified Subordinate Accounts Service Examination or Divisional Test Examination and having at least three years service in a gazetted post: and (ii) Government employees (other than those mentioned in sub-rule (I) and clause (i) of sub-rule (2) already in service of Punjab Government with experience in Finance and Accounts and having at least six years service in post requiring knowledge of Finance and Accounts: Provided that fifteen percent posts shall be filled in from amongst persons specified in clause (i) and ten per cent posts shall be filled in from amongst persons specified in clause (ii). (b) In the case of Assistant Accounts Officers by promotion of Superintendents, Accountants and CWP No.1189 of 1987 : 6 : Senior Auditors who have passed the Subordinate Accounts Service Examination and have three years service as such.” Under Sub Rule (I) of Rule 7 of the Punjab State Accounts Service (State Service Class-II) Rules, 1966, the posts of Accounts Officers are to be filled up by promotion from amongst the Assistant Accounts Officers and the Treasury Officers of the Punjab Government, appointed as such by transfer under Rule 7 (2) (i) (a) of the Punjab Finance and Accounts Service (Class-II) Rules, 1959 with at least three years service on the basis of their seniority in the Punjab State Subordinate Accounts (Class-III) Service. The other source of promotion was the Senior Auditors working in the Local Audit Department, Punjab, who have passed the Subordinate Accounts Service Examination (Local Audit Department) with at least six years service in the said Category. Proviso to Rule 7 (1) further fix the quota for promotion. 50 per cent of the posts were directed to be filled up from Clause (i) and 25 per cent posts from the persons specified in Clause (ii). So far as the remaining 25 per cent quota is concerned, sub Rule (2) of Rule 7 of the aforesaid rules provides for appointment by transfer of Class II Officers in the employment of Punjab Government other than those mentioned in Clause (i) of sub-rule (i) of Rule 7 who have qualified Subordinate Accounts Service Examination or Divisional Test Examination and having at least three years service in a gazetted post and such government employees other than those mentioned in Sub-rule (1) and clause (i) of sub rule (2) already in service of Punjab Government with experience in Finance and Accounts and having at least CWP No.1189 of 1987 : 7 : six years service in post requiring knowledge of Finance and Accounts. Out of 25 per cent quota represented by Sub Rule (2) of Rule 7, there was a further quota prescribed therein under proviso to sub rule (2) whereunder 15 per cent posts are to be filled up from the persons specified in clause (i) of sub rule (2) and 10 per cent from clause (ii) of sub rule (2). Sub rule 2 (b) of Rule 7 further laid down that in cases of Assistant Accounts Officers the posts are to be filled up by promotion of Superintendents, Accountants and Senior Auditors who have passed Subordinate Service Accounts Examination with three years experience. From the conjoint reading of various provisions of Rule 7, it emerges that for filling up the posts of Accounts Officers and Assistant Accounts Officers,there are different feeding channels and 90 per cent of the promotees/appointees are required to pass SAS qualifications except ten per cent who have to be appointed by transfer. Under Rule 7 (2) (i) (a) of the Punjab Finance and Accounts Service (Class-II) Rules, 1959, with three years experience. This category of the promotees/appointees is known as SAS. In the year 1972, the rules, namely, Punjab State Accounts Service (State Service Class-II) Rules were further amended. Rule 7 of 1966 Rules, thus, underwent a change and the appointment/promotion against ten per cent quota for non-SAS government employees with six years experience in the accounts and finance was abolished and given to Class-II officers of the Punjab Government who had qualified SAS Examination with three years experience on a gazetted post. It is alleged that this amendment was necessitated, the State having experienced CWP No.1189 of 1987 : 8 : difficulties in performance of duties of Assistant Accounts Officers/Accounts Offices by the non-SAS government employees. In the year 1976, the aforesaid rules were further amended and Rule 7 was recast and for promotion/appointment to the post of Assistant Accounts Officers/Accounts Officers in the following manner:- “7 (a) In the case of Accounts Officers- (1) by promotion from amongst the Assistant Accounts Officers and the Treasury Officers of the Punjab Government appointed as such by transfer under rule 7 (2) (1) (a) of the Punjab Finance & Accounts Service,Class II, Rules, 1959, with at least three years service as such, on the basis of their seniority in the Punjab State Subordinate Accounts (Class III) Service..................80% (2) By transfer of the Treasury Officers of the Punjab Government, other than those covered by sub-clause (1) above, belonging to Punjab Finance & Accounts Class II Service, who have at least six years service as such............20%.” Thus, with the onset of the amendment under 1976 Rules, 80 per cent posts of Accounts Officers were to be filled from Assistant Accounts Officers and the Treasury Officers of Punjab Government appointed/transferred under Rule 7 (2) (i) (a) of the Punjab Finance Accounts Service (Class-II) Rules, 1959 with at least three years experience CWP No.1189 of 1987 : 9 : on the basis of the seniority in the Punjab State Subordinate Accounts (Class-III) Service. Remaining 20 per cent posts were to be filled up by transfer of Treasury Officers belonging to the Finance and Accounts Service (Class-II) with six years experience meaning thereby that 20 per cent quota was again restored for non-SAS persons i.e. Treasury Officers. The petitioners claim to have represented against making a provision of 20 per cent of the promotion from amongst the non-SAS employees (Treasury Officers). A copy of the representation dated 16.01.1984 (Annexure P-2) is placed on record. The Punjab State Accounts Service (State Service Class-II) Rules 1966 were further revised/amended by 1984 Rules under the same caption. Rule 8 of the amended rules reads as under:- “8 (i) eighty per cent of the posts by promotion from amongst the Assistant Accounts Officers who have an experience of working as such for a minimum period of seven years; and (ii) twenty per cent of the posts by transfer of Treasury Officers belonging to the Punjab Finance and Accounts Service (Class-II) who have an experience of working as such for a minimum period of seven years.” Under the amended rules, 80 per cent of the posts of Accounts Officers are to be filled up by promotion from amongst Assistant Accounts Officers who have experience of working for a period of minimum seven CWP No.1189 of 1987 : 10 : years as such and 20 per cent by transfer of Treasury Officers belonging to the Punjab Finance and Accounts Service (Class-II) having minimum of seven years experience. The prime grievance of the petitioners is in respect to the aforesaid provision which, inter-alia, provide for 20 per cent quota for promotion to the post of Accounts Officers now designated as Senior Accounts Officers. Respondent No.2 was also promoted from the post of Treasury Officer as Accounts Officer now designated as Senior Accounts Officers vide order dated 02.02.1987 (Annexure P-6) and challenge to his appointment is also contained in the present writ petition. The other contention of the petitioners is that as against 47 posts of Senior Accounts Officers available in the various departments, 20 per cent quota for Treasury Officers comes to 9 posts and 38 posts are to be filled up by promotion of Accounts Officers. However, in contravention of the prescribed quota as many as 13 Treasury Officers were working in the department against the post of Senior Accounts Officers and with promotion of respondent No.2, the number of such appointees has touched the figure of 14. The contention of the petitioners is two folds: (i) that fixing quota of 20 per cent for promotion to the post of Accounts Officers from non-SAS examinees is violative of Articles 14 and 16 of the Constitution of India. The sole basis for such contention as raised by Mr. Balram Gupta, learned Senior Counsel on behalf of the petitioners is that the post needs serious knowledge of Accounts and Finance and only SAS qualified persons are eligible, qualified and possess requisite knowledge must to effectively manage such posts, which is of technical nature and giving appointment to CWP No.1189 of 1987 : 11 : non-SAS qualified persons is inappropriate and not in the interest of the State. (ii) Even tough the quota for the non-SAS is 20 per cent, yet as many as 14 persons have been appointed in excess of and contravention of the rules. The State-respondent has justified the amendment of rules and making provision for appointment by transfer of the Treasury Officers who manned the post of Accounts Officers and the Senior Accounts Officers. In its counter filed, the respondents have admitted the factual background and the abolition/modification of Rules from time to time as indicated in the writ petition and noticed here-in-above. It is, however, mentioned in paragraph 14 of the writ petition that the Treasury Officers are required to qualify a departmental examination consisting of three papers which covers at least half of the syllabus of the SAS examination. Admittedly, examination of Treasury Officers along with experience as Treasury Officer is considered sufficient justifying the promotion as Accounts Officers now designated as Senior Accounts Officers. During the course of hearing, Mr.Balram Gupta, learned Senior Counsel for the petitioners has placed on record a photostat copy of a government circular issued from the department of Finance (Treasuries and Accounts Branch) to all the Heads of the Departments in the State relating to maintenance of Accounts-duties and functions of Additional Directors/Controllers, (F&A), Joint Controllers (F&A),Deputy Controllers (F&A), Assistant Controllers (F&A) and Section Officers. In this circular it was emphasized that the duties in the Finance and Accounts particularly the drawing and disbursing powers etc., should be exercised by the persons CWP No.1189 of 1987 : 12 : with SAS qualification posted in the department. It further refers to certain instructions to Treasury officers. Based upon the above said circular, Mr. Gupta, has tried to impress upon the Court that the post of Accounts Officers should be allowed to be manned by SAS qualified persons only as is desire of the State as well as in view of the aforesaid circular. I have heard the learned counsel for the parties at length. Framing of rules and prescribing qualifications, eligibility etc. is the sole prerogative of the employers. It is not for the Courts to venture into such an exercise of power be it by exercise of legislative functions or even by administrative/executive action. The employers is the best judge to lay down the conditions for recruitment/appointment and promotion to various posts in the hierarchy of service. Merely some conditions, qualifications and eligibility is considered to be not sufficient to man a post does not per se permit the Court to exercise power of judicial review unless in the opinion of the Court the exercise of power is arbitrary or is in contravention of any constitutional provision or any law validly enacted by the State. In the case of State of J & K Vs. Shiv Ram Sharma and others, (1993) 3 Supreme Court Cases, 653, Hon'ble the Supreme Court has held as under:- “The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put forth on behalf of the respondents is that when they joined the service the requirement of passing the CWP No.1189 of 1987 : 13 : matriculation was not needed and while they are in service such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourable to them. In Roshan Lal Tandon vs. Union of India, 1968(1) SCR 185, it was held by this Court that once appointed an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. The High Court has also noticed that there was an avenue provided for promotion but the prescription of the qualification was not favourable to respondents. The principle of avoiding stagnation in a particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such. As long as rules provide for conditions of service making an avenue for promotion to higher CWP No.1189 of 1987 : 14 : grades the observations made in T.R. Kothandaramans case [supra] stand fulfilled. In that view of the matter, we do not think the High Court was justified in allowing the writ petitions filed by the respondents. “ In the case of Dwarka Prasad and others Vs. Union of India and others, AIR 2003, Supreme Court, 2971, Hon'ble the Supreme Court has held as under:- “Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to policy making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadres strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus, fixation of quota for various categories of posts in the feeder cadres requires consideration of various relevant factors, a CWP No.1189 of 1987 : 15 : few amongst them have been mentioned for illustration. Mere cadre strength of a particular post in feeder cadre cannot be a sole criteria or basis to claim parity in the chances of promotion by various holders of posts in feeder categories.” In the present case, the State in its wisdom is of the view that the Treasury Officer is possessed of the adequate knowledge as SAS qualified person coupled with sufficient experience to deal with finance and accounts etc. specifically is equipped to carry on the functions of the Accounts Officers/Senior Accounts Officers. Such opinion cannot be substituted by the Court even if it has any doubts regarding efficacy of the system. No interference in exercise of the power of judicial review is warranted. The other contention of Mr.Gupta is that there has been violation of the prescribed quota meant for the Assistant Accounts Officers. It is contended that some of the vacancies of the Assistant Accounts Officers have been eaten by the Treasury Officers who are occupying vacancies in excess of the prescribed quota under the rules. The State- respondent in paragraph 24 of the reply has given the details of the vacancies. Out of 62 vacancies filled from 13.09.1076 to 02.01.1984, 51 vacancies are occupied by Accounts Officers and 11 vacancies are occupied by Treasury Officers. From 03.01.1984 to 13.08.1985 six available vacancies have been given to Accounts Officers and similarly from 14.08.1985 to 01.03.1987 against 11 available vacancies, seven have CWP No.1189 of 1987 : 16 : been given to the Accounts Officers and four to the Treasury Officers. Thus, out of total 79 vacancies, 64 were occupied at the time of the filing of the writ petition by the Accounts Officers and only 15 by the Treasury Officers and the ratio-wise it comes to 62.9 per cent by the Accounts Officers and 16.1 per cent by the Treasury Officers. No replication has been filed to controvert the aforesaid factual statement made in the reply and there is no reason to disbelieve the statement of fact of division of vacancies in the above manner. It, thus, emerges that there has been no violation of the quota prescribed. In view of the above factual background, it is held that there is no violation of the prescribed quota though it is settled legal position that violation of quota is impermissible unless permitted by rules. In the totality of the facts and circumstances, this petition fails and the same is hereby dismissed. No costs. 24.09.2009 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES