IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 9042 of 2009. Date of Decision: 18.5.2011. Dr. Gautam Parshad & others --Petitioners Versus State of Punjab and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Karan Bhardwaj, Advocate for the petitioners. Ms. Reeta Kohli, Addl. A.G., Punjab for respondents no.1 & 2. Mr. R.K. Chopra, Sr. Advocate with Ms. Heena Talwar, Advocate for respondents No.3 to 46 and 49 to 78. Mr. A.K. Khunger, Advocate for respondent no.47. *** PERMOD KOHLI.J (ORAL) The petitioners are working as Veterinary Officers, whereas the private respondents are placed as Deputy Director/Assistant Directors/Senior Veterinary Officers in the Department of Animal Husbandry, Fisheries & Dairy Development, Punjab. Petitioners belong to the S.C category, whereas all the private respondents are from general category. Recruitment, promotion and other service conditions of the petitioners and private respondents are governed by the Punjab Animal Husbandry (Class-I) Service Rules, 1996. Rule 5 of the aforementioned rules deals with the method of appointment, educational qualifications and experience etc. and reads as under:- “5. Method of appointment, educational qualifications and experience:- CWP. No. 9042 of 2009. -2- (1) Appointment to the service shall be made in the manner specified in Appendix B. Provided that if no suitable candidate is available for appointment to a post in the service by promotion then such a post shall be filled in by direct recruitment. Provided further that if no suitable candidate is available or appointment to a post in the service by promotion or by direct recruitment, then such a post shall be filled in by transfer of a person holding similar or identical post under the State Govt. or Govt. of India. 2. No person shall be appointed to the service unless he possesses the qualifications and experience specified in Appendix B. 3. All appointments by promotion, to the service shall be made on the basis of seniority-cum-merit and no person shall be entitled to claim promotion on the basis of seniority alone. Similarly, Appendix B is also reproduced hereunder:- APPENDIX-B (See Rule 5 (1) Sr. No. Designation of Post By Direct appointment . By promotion/ placement Qualifications and experience for appointment. 1 Xx Xx Xx Xx 2 Xx Xx Xx Xx 3(a) (i) Deputy Director Nil 100 percent by placement From amongst the Assistant Directors, Senior Veterinary Officer or equivalent or Veterinary Officers who have an experience of working as such for a minimum period of eighteen years. (ii) Xx Xx Xx Xx (iii) Xx Xx Xx Xx 3.(b) Assistant Director or Senior Veterinary Officer. Nil 100 percent by placement From amongst the Veterinary Officers whohave an experience of working as such for eight years. (i) to (xiv) Xx Xx Xx Xx Sr. No. Designation of Post By Direct appointment . By promotion/ placement Qualifications and experience for appointment. 3(c) Veterinary Officer 100 percent by direct appointment Nil Bachelor degree in Veterinary Science and Animal Husbandry from any recognized university or Institution. Provided that the persons possessing qualifications of Ph.D or M.V.Sc. In any of the branches of Animal Husbandry and Veterinary Sc. Shall be given preference. Note:-1 At the time of initial entry into the service, the members of the Administrative Cadre shall be designated as Veterinary Officers. After the completion of a period of eight years service as a Veterinary Officer. If his work and conduct is found satisfactory, he shall be designated as Senior Veterinary Officer or Assistant Director as the case may be in the pay scale of Rs.3,000-4,000/-. Similarly, after the completion of a period of eighteen years of service as Veterinary Officer, Senior Veterinary Officer or as Assistant Director, if his work and conduct is found satisfactory, he shall be designated as Deputy Director in the pay scale of Rs.3700-5300. Note:-2 Placement on the post of Deputy Director, Asstt. Director or Sr. Veterinary Officer will be made as per the availability of relevant posts strictly on seniority and designation will be given as per posting on the posts.” Appointment to any service is made in accordance with the method, qualifications and experience as prescribed in Appendix B to the rules. Initially under Appendix B, there were three different categories of service like Deputy Director, Assistant Director, Senior Veterinary Officer and Veterinary Officer, however, these rules came to be amended vide notification dated 15.2.1999. The three categories i.e. Deputy Director, Assistant Director, Senior Veterinary Officer and Veterinary Officer have been clubbed as one single cadre. However, the financial benefit has been allowed on the basis of their placement on completion of 8/18 years of service. The relevant amended Appendix B is reproduced hereunder:- CWP. No. 9042 of 2009. -4- AMENDMENT In the said notification in para 'B' of the said schedule, in the table- (i) under heading “II-Animal Husbandry” (a) for serial no.1 and 2 and the entries relating thereto the following shall be substituted, namely: Sr. No. Post Existing Scale Revised Scale Remarks 1 Joint Director 1775-2100 4125-5600 2 Veterinary Officer 850-1700 2200-4000 Scale at the time of entry into service. Senior Veterinary Officer, Asstt. Director. 940-1775 3000-4500 After 8 years service. Deputy Director 1200-1850 3700-5300 After 18 years service. Note:- The post of Assistant Director, Senior Veterinary Officer and Veterinary Officer shall henceforth form one cadre.” Private respondents were granted benefit of the placement from one scale to another on completion of 8 and 18 years of service. It is, however, not disputed that the petitioners are also entitled to similar benefit. However, the grievance of the petitioners is that they being from reserved category of Scheduled Castes, are entitled to the benefit of the accelerated promotion on the basis of the reservation prescribed under the State Act namely the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006. Section 4 of the Act deals with the reservation both at the time of making appointment and promotion. The relevant extract from this section reads as under:- “4. (1) While making appointments in services by any of the methods provided under any Service Rules, reservation shall be CWP. No. 9042 of 2009. -5- made for the members of the Scheduled Castes and Backward Classes in the services under all the establishments. (2) The percentage of reservation for filling up the vacancies by direct recruitment or by transfer in Group 'A', Group 'B', Group 'C' and 'D' services shall be twenty-five percent for Scheduled Castes and twelve percent for Backward Classes. (3) The percentage of reservation for filling up the vacancies by promotion by Scheduled Castes in Group 'A' and Group 'B' services shall be fourteen percent. (4) The percentage of reservation for filling up the vacancies by promotion by Scheduled Castes in Group 'C' and 'D' services shall be twenty percent.” The Act also defines the expression “Appointment”. Section 2- A reads as under:- “(a) “appointment” means an appointment made by direct recruitment, by promotion or by transfer of a person already in service of the Govt. of India or a State Govt.” It is contended on behalf of the petitioners that since the appointment includes by direct recruitment and promotion as also by transfer, therefore, even the placement from one scale to another within the same cadre should be construed to be a promotion and the members of the Scheduled Castes are entitled to the benefit of reservation for such placement as well. According to learned counsel for the petitioners moving from one scale to another involves an element of promotion and thus the benefit of reservation must be extended to such a placement. To substantiate their claim the petitioners have relied upon a communication dated 2.5.2008 from the Punjab State Commission for Scheduled Castes to the Department of Animal Husbandry, Punjab. Through this communication, it is conveyed that the policy of placement adopted in the Department of Animal Husbandry infringes the reservation CWP. No. 9042 of 2009. -6- policy of the State as also the provisions of Reservation Act. It was accordingly suggested that reservation be made for the members of the Scheduled Castes for such placement. Even the Welfare Department, Punjab vide another communication dated 5.6.2008 has made similar recommendations opposing the integration of the cadres. Petitioners have also made representation (Annexure P-4) to the Govt. in this regard. It is vehemently argued on behalf of the petitioners that notwithstanding the fact that there is a single integrated cadre of Deputy Directors/Assistant Directors, Senior Veterinary Officers and Veterinary Officers the policy of reservation would be attracted particularly under Section 4(a) of the Act. I have heard learned counsel for the parties at length. The contention of the petitioners does not seems to be in consonance with the Act itself. Section 4 Clause-A deals with the appointment. Even though, the expression “Appointment” under section 2 includes the appointment by direct recruitment and by promotion, however, Section 4-A deals with the appointment at the initial stage. The rule has to be construed by reading the same as a whole and not in isolation of the one or the other clause. Section 4(4) deals with the reservation in promotions. Since the appointment and promotions have been separately dealt with in the section itself, the intention of the Legislature seems to be very clear that Clause A deals with the initial appointment and Clause 4 deals with the promotion. There is a separate percentage for appointment and promotion for reservation of Scheduled Castes. The rule itself belies the statement of the petitioners in the writ petition. From the amended Appendix B it appears that it is not a promotion but only placement from one scale to CWP. No. 9042 of 2009. -7- another. It is a financial upgradation without involving any element of promotion which inter alia includes the higher standard pay scales. It is akin to grant of proficiency step-up or A.C.P to remove the stagnation in the service. A similar question has been considered by the Hon'ble Supreme Court in case of State of Punjab Vs. Surjeet Singh. In this case the issue before the Court was reservation while granting selection grade. A similar plea was raised by the Schedule Castes members of the service. The Court negated the plea with the following observations:- “ In the light of these two clear circulars, both the Trial Court as well as the 1st Appellate Court, right came to the conclusion that there was no reservation provided as far as granting of selection grade was concerned. The High Court was clearly wrong in holding that there was such reservation. High court seems to have relied upon some interpretation given by Secretary, Scheduled Castes to the Circular of 17th of September, 1958. Unfortunately, this interpretation is not on record anywhere. We, however, fail to see how the Circular of 17th Separate, 1956 can ever lead to a conclusion that there would be reservation in the grant of selection grade. The appeal is, therefore, allowed. The impugned judgement and order of the High Court is set aside and the suit of the respondent is dismissed.” In view of the above factual and legal position, I find no merit in this petition, which is, accordingly, dismissed. (PERMOD KOHLI) JUDGE 18.5.2011. lucky Whether to be reported? Yes.