In the High Court of Punjab and Haryana, Chandigarh R.S.A. No. 713 of 1987 Date of Decision: October 28, 2009 Rajinder Kumar Gautam …Appellant Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE M.M. KUMAR Present: None for the appellant. Mr. Rajesh Garg, Addl. AG, Punjab, for the respondent. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This is plaintiff’s appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, ‘the Code’) challenging the judgment of reversal, dated 7.2.1987, passed by the learned lower Appellate Court dismissing his suit. The plaintiff-appellant has earlier filed Civil Suit No. 41 of 22.3.1985, seeking a declaration to the effect that the order dated 30.10.1984 passed by the Director, Food and Supplies and Special Secretary to Government of Punjab, reverting him from the post of Junior Analyst to that of Sub-Inspector was illegal, void, against the rules etc. The plaintiff-appellant had R.S.A. No. 713 of 1987 claimed that he was entitled to work regularly on the post of Junior Analyst with effect from 27.10.1976 and was thus entitled to all the benefits towards seniority and promotion etc. attached to the post of Junior Analyst. He was appointed as Sub-Inspector in the Food and Supplies Department on 27.4.1972 where he joined as such on 2.6.1972 (Ex. P13). He worked as Sub-Inspector before his promotion to the post of Junior Analyst in the year 1976. In pursuance of exercise of option from Sub-Inspector, Food and Supplies, called by the Director, the plaintiff-appellant was promoted as Junior Analyst because he fulfilled all the requisite qualifications. He was accordingly selected and posted as Junior Analyst w.e.f. 27.10.1976 where he continues to work without break till 1984. He claimed that it was a selection post as there was no channel of promotion from the post of Sub-Inspector to that of Junior Analyst. Subsequently, on 9.6.1981 the department called for option for promotion to the post of Inspector from that of Sub-Inspector and Junior Analyst working in the department. It was clarified that those who were not to exercise option for promotion as Inspector, were not to be considered for such promotion. The plaintiff-appellant claims that he opted to be absorbed as Junior Analyst and expressed through his option that he wanted to forego his promotion as Inspector in regular line of promotion. 2. On 6.8.1984, the Director, Food and Supplies called for option from Sub-Inspectors and Junior Analysts to fill up the post of Junior Analyst on regular basis, who fulfilled the requisite 2 R.S.A. No. 713 of 1987 qualification. The plaintiff-appellant opted for appointment as Junior Analyst on regular basis. However, on 30.10.1984 he was reverted as Sub-Inspector, which was subject matter of challenge in the suit. The basic ground of challenge is that the plaintiff-appellant was selected as Junior Analyst in the year 1976 and there has been subsequent selection in the years 1978, 1979, 1980 and 1982, of persons who are junior to him and they have since been working. The grievance is that the plaintiff-appellant being senior-most, has been illegally reverted. It is also claimed that the order dated 27.10.1976 speaks to the effect that the plaintiff-appellant was permanently absorbed and promoted as Junior Analyst. 3. The State of Punjab contested the claim made by the plaintiff-appellant and asserted in the written statement that he was merely transferred from the post of Sub-Inspector to that of Junior Analyst but no promotion to the post of Junior Analyst was ever made at Batala Laboratory. It was categorically denied that the plaintiff- appellant was promoted on selection as Junior Analyst. There is no element of promotion involved as the pay scale of the post of Junior Analyst and that of Sub-Inspector was the same. They were inter- changeable and all the Sub-Inspectors senior to the plaintiff-appellant were transferred and deputed to work as Junior Analyst on temporary arrangement with a clear stipulation that they were not to claim promotion/seniority in the cadre of Junior Analyst, vide order dated 30.10.1984. The respondents have also clarified that no person junior to the plaintiff-appellant has been working as Junior Analyst and no 3 R.S.A. No. 713 of 1987 promotions were made on 27.10.1976. The Trial Court framed the following four issues:- “1) Whether the order dated 30.10.1984 of the Special Secretary to Govt. (Punjab) is illegal, void and capricious on the ground given in para-7 of the plaint? 2) Whether the plaintiff has no cause of action? 3) Whether the plaintiff has no locus standi? 4) Relief.” 4. The Trial Court recorded a finding that there was no regular channel of promotion from the post of Sub-Inspector to that of Junior Analyst. A Sub-Inspector working in the Food and Supplies Department had regular channel of promotion to the post of Inspector. However, the appointment to the post of Junior Analyst is a selection made on merit. The plaintiff-appellant had applied in response to requisition circulated within the department on 9.9.1975 because he fulfilled all the qualifications contemplated by Rule 9(Q) of the Punjab Food and Supplies Department (State Service Class III) Rules, 1968 (for brevity, ‘the Rules’). According to Rule 9(Q) of the Rules a Sub-Inspector could be promoted to the post of Junior Analyst if such a Sub-Inspector has the qualification of Intermediate and had worked on their post for a minimum period of two years. Apart from filling up the post of Junior Analyst by direct appointment, the Rule provide for appointment by transfer or deputation of an officer already in service of the Government of India or of the State. The finding given 4 R.S.A. No. 713 of 1987 by the Trial Court is that the selection was made on merit, which was against a permanent vacant post available at that time. It has also been found that the selection was strictly in accordance with Rule 9 (Q) of the Rules. An entry to that effect was made in the Service Book of the plaintiff-appellant showing that he stood promoted as Junior Analyst. On promotion he was then transferred to Gurdaspur. He continued to hold the post till 30.10.1984 when he was reverted. The finding of the Trial Court on the aforesaid issue reads thus:- “……The true position which comes out from the evidence oral as well as documentary on record is that the plaintiff has been promoted and designated as Junior Analyst but the department vide impugned order had not only changed the duty of the plaintiff but has actually reverted him as Sub Inspector. He has been deprived his right to be promoted as Head Analyst which is next higher promotion in the cadre of Junior Analyst and this right cannot be denied to him. He continued to serve as Junior Analyst for more than 8 years and vide impugned order he stood reverted. The cadre of the plaintiff cannot be changed by the department without proper notice. He had continued and put into the cadre of Junior Analyst with his consent and with due selection and with the orders of the defendant. As per rules of the department, the post of Sub Inspector and Junior Analyst fall in different cadres. These posts are not inter-changeable or 5 R.S.A. No. 713 of 1987 inter-transferable. They enjoy different cadre and status distinct from each other. Their line of promotion is based on the seniority in their own cadre. A person working in a particular cadre cannot be compelled or transferred to another cadre. In this view of the matter, the order itself is illegal on this ground.” 5. The Trial Court further held that the maximum three years period of probation for direct recruitment has also come to an end and since the plaintiff-appellant continue to hold the post for more than 8 years, he was deemed to be confirmed on the post of Junior Analyst. Accordingly, the order of reversion, dated 30.10.1984, was set aside and declared as patently illegal. Issue Nos. 2 and 3 were not pressed before the Trial Court and, therefore, both the issues were decided against the defendant-respondent. Accordingly, the suit was decreed. 6. On appeal by the defendant-respondent State of Punjab, learned lower Appellate Court found that there was no order of promotion and merely because the plaintiff-appellant was posted to work as Junior Analyst, the same could not have been regarded as promotion. The view of the learned lower Appellate Court is discernible from the following extracts of para 8:- “8. ……Now the question arises whether the Court should conclude from this material that the respondent- plaintiff was really ‘promoted’ to the post of Junior Analyst inspite of the fact that there is no specific order 6 R.S.A. No. 713 of 1987 regarding promotion of the respondent-plaintiff. I am of the view that it is not at all open to the Court to give this verdict. It is true that under the rules which then prevailed and as contained in Ex. P11 a person could be posted as a Junior Analyst out of Sub Inspectors by way of “Promotion” if he had two years experience as a Sub Inspector and if he was intermediate. This however, will not mean that if a Sub Inspector had the requisite experience and the requisite education and if he was posted to work as a Junior Analyst then automatically he should be deemed to have been promoted. In this very rule it is provided that a person can be transferred on deputation to work in this capacity if such a person is already in the service of Government of India or of a State Government holding appointment equal to the post held by departmental official eligible for appointment by promotion. In other words a person equal to the rank. Sub Inspector and in the employment of the State Government and having requisite qualification could be deputed to work as a Junior Analyst. The respondent- plaintiff was already in the employment of the State Govt. and if the State Govt. felt that he had the requisite qualifications then he could certainly be transferred and deputed to work as a Junior Analyst and having regard to the nature of the order Ex. P15 which does not indicate 7 R.S.A. No. 713 of 1987 any “promotion” the conclusion must be reached that prima facie and apparent meaning should be given to this order and it must be held that the respondent-plaintiff was only transferred and deputed to do the job of a Junior Analyst. It will not make any difference if any further conditions by way of clarification were incorporated in the said order or not.” 7. On 2.3.1987, when the appeal came up for motion hearing, this Court while issuing notice of motion, stayed reversion of the plaintiff-appellant by observing that C.W.P. Nos. 1944 and 5365 of 1986, filed by some other Junior Analysts stood admitted. The record of C.W.P. No. 1944 of 1986 shows that it was filed by 26 Junior Analysts who were earlier working as Sub-Inspectors. They had claimed that they were senior to the plaintiff-appellant. 8. Another writ petition, bearing CWP No. 1925 of 1987 was also filed where it was claimed that the petitioner therein was senior to the plaintiff-appellant as Sub-Inspector. The writ petitions were admitted and the reversions of those petitioners in all the petitions were stayed. The Division Bench after placing reliance on another Division Bench judgment of this Court rendered in Harjinder Singh v. State of Punjab and another, 1987 (4) S.L.R. 115, allowed the petitions and issued direction to the defendant-State to consider the petitioners for regularization of their services as Junior Analyst on the basis of seniority-cum-merit. If on such 8 R.S.A. No. 713 of 1987 consideration they were found suitable for regularisation then further direction was issued to regularise their services as Junior Analyst. 9. However, on the record of the appeal there is no mention about the fate of the plaintiff-appellant and, therefore, I am of the considered view that the following substantive question of law would arise for determination of this Court:- “Whether a Sub Inspector could claim promotion when he was posted as Junior Analyst merely because he happen to satisfy the necessary conditions for promotion as contemplated by Rule 9(Q)(ii) of the Punjab Food and Supplies Department (State Service Class III) Rules, 1968?” 10. It would be necessary first to examine Rule 9(Q) of the Rules to determine whether there was any element of promotion of the plaintiff-appellant on the post of Junior Analyst. Rule 9(Q) of the Rules reads as under:- “9. Method of appointment:- Appointments to posts in the Service shall be made in the following manner:- xxx xxx xxx xxx xxx xxx xxx (Q) In the case of Junior Analysts:- (i) by direct appointment; or (ii) by promotion from amongst Sub-Inspectors; provided they are Intermediate and have worked 9 R.S.A. No. 713 of 1987 on the post of Sub-Inspector for a minimum period of 2 years; or (iii) by transfer or deputation of an official already in the service of the Government of India or of a State Government holding appointment equivalent to the post held by the departmental officials eligible for appointment by promotion.” 11. A cursory glance of Rule 9(Q) of the Rules shows that there are various modes of appointment on the post of Junior Analyst. It can be by direct appointment, by promotion from amongst Sub- Inspectors and another method is by transfer or deputation. In order to earn promotion, a Sub-Inspector must fulfill two conditions, namely, he is Intermediate and had worked on the post of Sub- Inspector for a minimum period of two years. The findings recorded by the learned Lower Appellate Court shows that there is no order of promotion promoting the plaintiff-appellant to the post of Junior Analyst. The plaintiff-appellant was given posting on 27.10.1976 (Ex. P-15) along with 20 other Sub-Inspectors. There was no process of promotion undertaken which require examination of service record including the Annual Confidential Reports. The order dated 27.10.1976 (Ex. P-15) could not be regarded as an order of promotion. The defendant-respondent State in para 3 of the written statement has explained that some of the Sub-Inspectors were appointed on ad hoc basis during 1971 and the other came to be appointed on regular basis in 1972. No regular recruitment on the 10 R.S.A. No. 713 of 1987 post of Junior Analyst could have been made due to pending dispute regarding seniority. Therefore, it was considered to be appropriate to appoint them by transfer on the post of Junior Analyst. The order dated 27.10.1976 (Ex. P-15) came to be issued not only in respect of the plaintiff-appellant but even in respect of others. It is a coincidence that the plaintiff-appellant fulfilled the educational and qualifications with regard to experience. The plaintiff-appellant cannot be regarded to have ever been put on probation. Nor any report with regard to his work and conduct within the meaning of Rule 10 of the Rules was ever obtained. Therefore, transfer and posting of the plaintiff-appellant as Junior Analyst would not enure the benefit of promotion and the question of law is answered against the plaintiff-appellant upholding the view taken by the learned Lower Appellate Court. 12. As a sequel to the aforesaid discussion the appeal is dismissed. However, if any decision by the defendant-respondent State has already been taken in pursuance to the directions issued by the Division Bench of this Court in C.W.P. No. 1925 of 1987, decided on 27.9.1988 (Manohar Lal Chhabra v. State of Punjab and another) then that decision shall prevail. 13. The appeal stands disposed of in the above terms. (M.M. KUMAR) 11 R.S.A. No. 713 of 1987 October 28, 2009 JUDGE Pkapoor 12