Civil Writ Petition No. 16299 of 1991 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 16299 of 1991 Date of decision: 11.9.2009 Ajit Singh ...Petitioner Versus Haryana State Small Industries and Export Corporation Ltd. and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: None for the petitioner Mr. Sunil Nehra, Assistant Advocate General, Haryana ***** S.D.ANAND, J. 1. The petitioner, an intermediate by educational qualifications, had been appointed to the post of a peon on 23.2.1976. He had been representing to the respondents for his promotion, as a Clerk, against the rule -based 20% quota posts. He was informed that his case for promotion to the post of a Clerk may be considered as and when his turn would come about. On 27.2.1991, a tentative seniority list of Class IV employees was circulated wherein respondent no.3, who was otherwise junior to the petitioner, had been shown as having been promoted to the post of a Clerk. Petitioner made representations dated 21.3.1991, 22.4.1991 and 23.5.1991(Annexures P-3, P-4 and P-5 respectively) ventilating a grievance of not having been considered at the time of grant of promotion Civil Writ Petition No. 16299 of 1991 -2- **** to respondent no.3. It was thereafter that the respondent no.1 issued a circular requiring the Class IV employee to indicate their consent to appear in English type test in order to be eligible for consideration for promotion to the post of a Clerk. The petitioner (alongwith certain other employees) requested the Managing Director of respondent no.1-Corporation to keep on following the old practice of ordering promotion in the first instance and, then, allowing a peon so promoted to clear the type test. The petitioner did not get any response thereto. 2. In the present case, the pure and simple plea of the petitioner is that the impugned action on the part of respondents no.1 and 2 in promoting respondent no.3 to the post of a Clerk is illegal, arbitrary, unconstitutional and liable to be set aside as the petitioner had not been considered at the time of that promotion. Ofcourse, the petitioner claims to be senior to respondent no.3 in placement. 3. Respondents no.1 and 2 conceded (in the course of para 8 of the written statement) that respondent no.3 was junior to the petitioner in the course of their placement as Class IV employees, (“It is admitted that Shri Ashok Kumar respondent no.3 herein, was junior to the petitioner, in the capacity of class IV employee.”). Respondent no.3 had been promoted as Assistant Saleman-cum-Helper, a post belonging to class IV category, at Black Partridge Haryana Emporium (a unit of respondent-corporation), Agra in the year 1976. In the year 1979, there was a spurt in the work at the Agra Emporium. Respondents found that it was not possible to make recruitment to the post of a Clerk “in accordance with the policy of the Corporation”. On that account, respondents no.1 and 2 asked respondent no.3 to perform the duties of a Clerk as a stop gap arrangement. The order in the relevant behalf (Annexure R/1/1) categorically indicated that Civil Writ Petition No. 16299 of 1991 -3- **** his promotion which had been made as a stop-gap arrangement will not confer any right in him to claim seniority over his seniors. Further, in the year 1986, the respondent-Corporation promoted two other eligible class IV officials as well to the post of a Clerk and reverted respondent no.3 to his substantive post of Assistant Saleman-cum-Helper. Respondent no.3 filed Civil Writ Petition No.4593 of 1986. The reversion of the respondent was stayed by a Division Bench of this Court on 29.8.1986. In compliance therewith, respondent no.3 was allowed to continue on the post of a Clerk. Thereafter, respondent no.3 withdrew Civil Writ Petition No.4593 of 1986 and filed another Civil Writ Petition No.9049 of 1987 and obtained an exparte stay on the operation of his reversion order. That writ petition was allowed by a Division Bench of this Court on 5.9.1988 and his reversion order was quashed. In the light thereof, respondent no.3 was formally promoted as a Clerk and the relevant entry was shown in the tentative seniority list. Qua the holding of type test, it was averred that the decision of the Corporation regarding conducting of type test amongst class IV employees, for the promotion to the post of a Clerk had not yet been implemented. 4. Though it is apparent from interim order dated 4.5.1992 that respondent no.3 had entered appearance through a learned counsel, he does not appear to have filed any pleadings before this Court. 5. It can be safely culled out from the above factual premise that the petitioner has been conceded to be senior to respondent no.3 in their placement as class IV employees. 6. The petitioner herein had not been impleaded as a party respondent to Civil Writ Petition No.9049 of 1987. In that case, a Division Bench of this Court found that the reversion of respondent no.3 from the Civil Writ Petition No. 16299 of 1991 -4- **** post of a Clerk was arbitrary as he had worked in that capacity for a period of seven years and all the supervisory officers appreciated his work and conduct during that period. Be that as it may, it cannot be denied that the petitioner was senior to respondent no.3 in the seniority list of Class IV employees. The respondents could not have denied the promotion to the petitioner even if they had to retain respondent no.3 as a Clerk in compliance with the orders of this Court. 7. To be fair to the pleadings raised by the respondents, it may be noticed that there is an averment in the course of the written statement that adverse remarks for the year 1988-89 had been communicated to the petitioner. Insofar as the petitioner is concerned, he had not made a mention of his having received any communication about the year 1988-89 adverse remarks. On the other hand, he had made a precise averment in the petition that no adverse remarks had ever been conveyed to him throughout his service career. In the replication, however, the petitioner did concede that he had made a representation against the adverse remarks conveyed to him but that no decision had been taken thereupon. This aspect of the matter need not detain me at all, particularly because it is not the averment on behalf of the respondents that promotion had been denied to the petitioner on the basis of adverse remarks for the year 1988- 89. Even otherwise, it is apparent from the record that the impugned promotion (of respondent no.3 and denial thereof to the petitioner) had initially been made in the year 1986. In that view of things too, even the averred adverse remarks for the period 1988-89 could not have been taken into consideration to deny promotion to the petitioner. 8. In the light of foregoing discussion, the petition deserves to be allowed and it is so ordered accordingly. The impugned action of Civil Writ Petition No. 16299 of 1991 -5- **** respondents no.1 and 2 in promoting respondent no.3 to the post of a Clerk without considering the case of the petitioner, who was his senior in placement as class IV employee, is invalidated as being against all cannons of natural justice and hierarchical Constitutional jurisprudence. Respondents no.1 and 2 are directed to consider the case of the petitioner for promotion to the post of a Clerk from the date his junior i.e. respondent no.3 had been promoted. In the event of grant of an order favourable to him, the petitioner shall also be entitled to all consequential financial and service benefits which had been granted to respondent no.3. September 11, 2009 (S.D.Anand) Pka Judge Civil Writ Petition No. 16299 of 1991 -6- ****