Civil Writ Petition No. 8853 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 8853 of 2007 Date of decision:-26.07.2011 Parveen Kumar ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Anil Malhotra, Advocate for the petitioner. Mr. Ram Lal Gupta, Addl.A.G. Punjab. RITU BAHRI J.(Oral) This writ petition is under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the order dated 25.4.2007 (Annexure P-4) to the extent that the respondents denied the promotion to the petitioner w.e.f. 1.1.1989. The petitioner was appointed as Junior Engineer on 19.5.1977. He is a diploma holder and member of Scheduled Caste. He qualified the AMIE examination in April 1988 and became eligible for regular promotion to the post of Sub Divisional Engineer in the year 1989. The petitioner was granted adhoc promotion on 31.12.1990 and on 25.4.2007 he was regularly promoted as Sub Divisional Engineer. Precise, the grievance of the petitioner is that he became eligible for promotion in the year 1989 but he has been denied the promotion, meant for Scheduled Caste category as per reservation policy dated 04.5.1974 (Annexure P-1) and dated 19.11.1974 (Annexure P-2). The promotion to the rank of Sub Divisional Engineer is governed Civil Writ Petition No. 8853 of 2007 -2- by statutory rules called the Punjab Service of Engineers Class-II Public Works Department (Public Health) Rules 1967. Rule 9 of the 1967 Rules deals with the appointment by promotion, which reads as under:- “9. Appointment by Promotion 1) A committee consisting of Chairman of the Punjab Public Service Commission or where the Chairman is unable to attend, any other member of the Commission, representing it, Secretary PWD (Public Health) and Chief Engineer of PWD (Public Health) shall be constituted. 2) The Chairman or the member of the Commission as the case may be, will preside over the meeting of this Committee. 3) The Committee shall meet at intervals ordinarily not exceeding one year and consider the cases of all eligible officials for promotion to the service, as on the first day of January of that year. 4) The Committee shall prepare a list of officials suitable for promotion to the service. The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority. 5) The name of the officers included in the list shall be arranged in order of seniority in Punjab PWD (Public Health) Sectional Officers (Engineering) Service and members of Draftsmen and Tracers Service; provided that any junior officer, who, in the opinion of the Committee, is of exceptional merit and suitability may be assigned a place in the list higher than that of officers senior to him in his own class ; 6) The list so prepared shall be revised every year; 7) If in the process of preparing the list or its revision, it is proposed to supersede any eligible candidate, the committee shall draw up a list of such officials and may record its reasons for the proposed supersesssion. Civil Writ Petition No. 8853 of 2007 -3- 8) The list prepared or revised in accordance with sub- rules (4), (5) and (6) shall then be forwarded to the Commission by Government along with :- i) The Records of all officials included in the list; ii) records of all officials proposed to be superseded as a result of the recommendations made by the Committee; iii) the reasons, if any, recorded by the Committee for the proposed supersession of any official; and iv) the observations, if any, of the State Government on the recommendation of the Committee. 9) The Commission shall consider the list prepared by the Committee alongwith other documents received from the State Government and, unless it considers any change necessary, approve the list. 10) If the Commission considers it necessary to make any changes in the list received from Government, the Commission shall make the changes it proposes and forward the list it considers suitable to the State Government. 11) Appointment to the Service shall be made by the Government from this list in the order in which names have been placed by the Commission. 12) Appointment by promotion may be made on ex-cadre post, or to any post in the cadre in an officiating capacity from the list prepared under this file. Note :-This rule will also apply for assessing the suitability of Temporary /Assistant Engineer, for the Service, as provided in Appendix 'G' .“ As per Rule 7(2) the petitioner passed the AMIE examination and was duly qualified for the promotion in the year 1989. As per Rule 9(3) the committee consisting of Chairman of Public Service Commission was constituted to meet and to consider the case of the petitioner for promotion on regular basis Civil Writ Petition No. 8853 of 2007 -4- w.e.f. 1.1.1989. Since 1985 no screening had been conducted as contemplated under Rule 9(3) of the Rules. Civil Writ Petition No.8230 of 1998 was filed by one Achhru Ram Sharma, which was decided on 13.7.2001 and reported as 2002(6) SLR 249 and the Division Bench of this Court had given directions to the official respondents to undertake and complete the exercise of promotion to the post of Sub Divisional Engineers within a period of four months. Despite this order, which was passed on 13.7.2001 nothing was done by the Department. After six years an order (Annexure P-4) dated 25.4.2007 has been passed by the Principal Secretary to Government of Punjab Department of W/s & Sanitation whereby on recommendation received from the Screening Committee dated 21.2.2007 officiating promotion orders of Sub Divisional Engineers were issued. The Screening Committee vide letter dated 21.2.2007 examined the cases of regular promotion of Sub Divisional Engineers following in the category of AMIE w.e.f. 1.1.1986. This order is being examined only in context of the petitioner who is in the category of AMIE/degree in engineering qualified Junior Engineers. Counsel for the petitioner has straight away referred to promotions made category-wise right from the year 1982. The first case filed in the category of Scheduled Castes came in the year 1984 and was given to one Bikramjit Singh from Backward Class as in Scheduled Caste candidate was not eligible as on 1.1.1984. Thereafter, in 1985 four posts became available, which were given to candidates of General Category. In the same manner in 1988 one post was filled by General Category candidate. In 1989 one another post was filled by a General category candidate Hari Kumar Gupta. In the year 1989 one post became available, which was given to Ashok Kumar. In the year 1990 the reserved category post became available, which was given to Amarjit Singh. The petitioner has been appointed in the year 1997 in the reserved category. The petitioners became eligible for appointment to the post of Sub Divisional Civil Writ Petition No. 8853 of 2007 -5- Engineer. As per Rule 7 the petitioner became eligible for promotion w.e.f. 1.1.1989. The petitioner has referred to the instructions dated 04.5.1974 (Annexure P-1) and dated 19.11.1974 (Annexure P-2) whereby reservation of 14% from members of Scheduled Castes and 2% for members of Backward Classes has been made in case of promotions. These instructions were to take into effect from 06.3.1974 with subsequent clarification vide notification dated 19.11.1974 (Annexure P-2). The reservation will be carried forward from vacancy to vacancy in each block and from block to block until the carried forward vacancies are filled up by the members of the Scheduled Castes or the Backward Classes. Only one reserved vacancy out of the carried forward vacancies should be filled in a block of appropriate roster in addition to the normal reserved point of that block. In this manner all such carried forward vacancies should be adjusted subject to the above conditions. Applying the above instructions the petitioner is entitled to be promoted to the vacancy, which was available in the year 1990. Mr. Ram Lal Gupta, Addl. A.G. Punjab on the other hand referred to the instructions issued by the State of Punjab dated 23.8.1966 which is reproduced as under :- “(4) Roster : (a) XXX XXX (b) If there are only two vacancies to be filled on a particular occasion, not more than one may be treated as reserved and if there be only one vacancy it should be treated as unreserved. If on this account, a reserved roster point is treated as unreserved, the reservation may be carried forward to the subsequent two recruitment years. Thus, where the cadre strength is small say less than five and there is only post to be filled by promotion, it need not be treated as reserved but if on this account a reserved roster point is treated as unreserved the reservation may be Civil Writ Petition No. 8853 of 2007 -6- carried forward to the subsequent two recruitment years.” Since the Scheduled Castes candidates were not available after the vacancy was carried forward for two years, it had to be filled up from the General category and after two years it could not be carried forward. Hence, while passing the order in the year 2007 as per these instructions the promotion of Bikramjit Singh was made against a post for Scheduled Castes category in the year 1984 and the same could not be carried forward beyond 1986. I have heard learned counsel for the parties and have gone through the case file carefully. After going through the instructions dated 23.8.1966 it is apparent that the benefit of reserved category was restricted only to Class-III and Class- IV. The instructions are very clear that there will be no reservation for the Scheduled Castes and other Backward Classes in appointment made for Class-II or higher services or post. Therefore, the rule of carried forward suggested by these instructions are not applicable to the petitioner. Regarding benefit of reservation of Class-I and Class-II services, State of Punjab vide instructions dated 19.11.1974 (Annexure P-2) had decided to extend the benefit of reservation to the Scheduled Castes to the extent of 14% and to Backward Classes to the extent of 2%. The benefit of reservation was to be given in accordance with the roster maintained by the Department in the form of running account. As far as instructions dated 19.11.1974 (Annexure P-2) related to carried forward the reservation it has been provided that as in Chapter-IV and thus can be filled by officials of other category but the reservations shall be carried forward to subsequent appointments/promotions. If, all the vacancies in any block determined on the basis of prescribed rosters are filled by other category persons due to non-availability of Scheduled Castes or Backward Classes persons, the reservation should be carried forward to the subsequent blocks. Civil Writ Petition No. 8853 of 2007 -7- Thus, the reservation should be carried forward from vacancy to vacancy in each block and from block to block until the carried forward vacancies are filled by the members of the scheduled Castes or the Backward Classes. Only one reserved vacancy out of the carried forward vacancies should be filled in a block of appropriate roster in addition to the normal reserved point of that block. These instructions provide that in case a suitable candidate is not available, the vacancy can be de-reserved by following the procedure set out but the reservation was to be carried forward for subsequent appointment and promotion. For de- reservation a post as per the instructions dated 28.5.1970 no objection, non- availability certificate has to be obtained from the Director, Welfare of Scheduled Castes and Backward Classes. From the facts of the present case and from the replies filed by the State it does not state that any such no objection was obtained by the Department. It is not a case of the respondents that they have sought no objection certificates for filling up the posts as suitable candidates in the reserved category were not available. In the affidavit filed by the Chief Engineer (South) Punjab, Water Supply and Sanitation Department, Patiala on 18.5.2010, in paragraph 2 it is stated that there was no regular vacancy of Sub Divisional Engineer meant for AMIE category available against Scheduled Castes candidate in the year 1989. (Annexure R-1) is the statement showing the vacancy position of the candidates. Applying the principles laid down in instructions (Annexures P-1 and P-2), the post, which was given to Bikramjit Singh in the year 1984 meant for Scheduled Castes, should have made available to a candidate of Scheduled Castes when he became eligible for promotion. In the instructions (Annexure P-1 and P-2) there is no mention that the posts will stand de-reserved and will be filled up on finding a suitable candidate. The petitioner qualified the AMIE exam in April 1988 and for all Civil Writ Petition No. 8853 of 2007 -8- intents and purposes he was eligible to the regular promotion to the post of Sub Divisional Engineer thereafter. The petitioner was granted adhoc promotion vide order dated 31.12.1990 and then regularly promoted as Sub Divisional Engineer w.e.f. 25.1.2007. The post, which was given to Bikramjit Singh in 1984 meant for Scheduled Castes had to be carry forward to subsequent years until vacancy was filled by the Scheduled Castes candidate. In paragraph 3 in the instructions dated 19.11.1974 (Annexure P-2), the conditions prescribed as follows :- “1. XXX XXX 2. XXX XXX 3. If, all the vacancies in any block determined on the basis of prescribed rosters are filled by other category persons due to non-availability of Scheduled Castes or Backward Classes persons, the reservation should be carried forward to the subsequent blocks. Thus, the reservation should be carried forward from vacancy to vacancy in each block and from block to block until the carried forward vacancies are filled by the members of the Scheduled Castes or the Backward Classes.” 4. XXX XXX.” The mandate of these instructions is that once the post meant for Scheduled Caste was occupied in the year 1984 by a Backward Class candidate, this post had to be carry forward every year and was to be given to eligible Scheduled Caste candidate when he was available. In the present case this procedure has not been followed. The petitioner became available in April 1988 and has been given regular promotion w.e.f. 25.4.2007. In the affidavit filed by the Chief Engineer dated 18.5.2010 stating that there was no vacancy in the AMIE category against the Scheduled Castes candidate in the year 1989 is Civil Writ Petition No. 8853 of 2007 -9- factually incorrect. In the order dated 25.4.2007 (Annexure P-4) promotion has been made against a General category. In the year 1988 and in the year 1989 two posts have been given to the General category. In the year 1988 to Hari Kumar Gupta and in the year 1989 to Ashok Kumar Suri. The post occupied by Bikramjit Singh should have been carry forward and offered to a Scheduled Castes candidate when he was available. From this order, Amarjit Singh was promoted as Sub Divisional Engineer in the year 1990 against a post reserved for Scheduled Caste candidate. Amarjit Singh had cleared his AMIE examination on 1.1.1986. His claim alongwith the petitioners was liable to be considered when the post became available in the year 1988 and in the year 1989. As per Annexure R-1 attached with the affidavit filed by the Chief Engineer dated 18.5.2010 Amarjit Singh was promoted in the year 1990 as he was senior to the petitioner Shri Parveen Kumar. This promotion was made on the post, which fell into the reserved category of Scheduled Castes. Prior to this promotion in 1990 the post occupied by Bikramjit Singh was not carry forward, which has denied the rightful claim of Amarjit for promotion and then subsequently Shri Parveen Kumar could have been considered against the post which became available in the year 1990. The writ petition is allowed and a direction is being given to consider the case of the petitioner-Parveen Kumar against the post which became available in the year 1990 reserved for Scheduled Caste candidate. A direction is being given to pass appropriate order within a period of four months and petitioner is held entitled to all consequential benefits. No costs. July 26, 2011 ( RITU BAHRI ) Vijay Asija JUDGE