C.W.P. No.3239 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.3239 of 2009 Date of Decision:- 18.04.2011 Gurbachan Singh ....Petitioner(s) vs. State of Punjab and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Vikas Singh, Advocate, for the petitioner. Ms.Monica Chhibber Sharma, Sr.DAG, Punjab. Mr.Harsh Garg, Advocate, for respondent No.3. *** AUGUSTINE GEORGE MASIH, J. (Oral) This writ petition has been preferred by the petitioner who is senior to respondent No.3-Bhura Ram as per the seniority list appended with the writ petition as Annexure P-1. Petitioner's name figures at Sr.No.5 and that of respondent No.3 at Sr.No.7. As per the petitioner, the rule governing promotion is Rule 8 of the Punjab Market Committee (Class-III) Service Rules, 1989 which provides that the promotion shall be on seniority-cum-merit basis and he being senior, his case for promotion to the post of Mandi Supervisor-cum-Fee Collector should have been considered prior to the case of Bhura Ram-respondent No.3. However, without considering the case of the petitioner for promotion, Bhura Ram was promoted by considering his sole case on the ground that he belongs to C.W.P. No.3239 of 2009 -2- a Backward Class category and the vacancies which had arisen belong to said category for promotion. This order was passed as per the resolution dated 12.11.2002 (Annexure P-2) passed by the Market Committee, Patran. This order of promotion was challenged by Tara Chand whose name figures at Sr.No.1 in the seniority list (Annexure P-1) before the Secretary, Mandi Board. The said appeal/representation was considered by the competent Authority and which, after considering the claim of respondent No.3 to the said post, remanded the matter to respondent- Market Committee, Patran with the direction to reconsider it afresh in the light of the Punjab Government Instructions dealing with the reservation after the passing of the judgment of the Supreme Court in Indra Sawhnay etc. vs. Union of India, AIR 1993 SC 477. The aspect which was further required to be considered by the Board was whether the vacancy to be filled up by the Committee goes to the share of the members of the Backward Class or not in the light of the instructions of the Government. Against this order which was passed against respondent No.3, he preferred a revision before the Financial Commissioner (Development) and Principal Secretary to Government of Punjab, Department of Agriculture, which was dismissed on 12.9.2005. Thereafter, the Market Committee reconsidered the case of promotion of Bhura Ram-respondent No.3 and vide order dated 2.12.2005 declined to interfere with the promotion order on the ground that after passage of such a long time, the Committee cannot make an amendment in its decision and the appellant-Authority can issue necessary orders in this connection. The petitioner has challenged the order of promotion of C.W.P. No.3239 of 2009 -3- respondent No.3 dated 12.11.2002 as also the order dated 2.12.2005 (Annexure P-8). It would not be out of way to mention here that the order dated 2.12.2005 was challenged by Tara Chand, Harwant Singh and Amrik Singh by filing CWP No.10072 of 2006, however, the said writ petition was withdrawn by the petitioners on 3.12.2007 primarily on the ground that Tara Chand had superannuated from service, Harwant Singh had already been promoted while Amrik Singh was not eligible for promotion. In response to the notice of writ petition preferred by the petitioner, respondent No.3 has filed a written statement wherein a preliminary objection has been taken that the petitioner has approached this Court after a period of more than 7 years and further that the petitioner has an alternative remedy of filing an appeal before the competent Authority as per the Statutory Rules which remedy he has not availed of. Counsel for the petitioner has submitted that the order dated 2.12.2005 (Annexure P-8) passed by the Chairman, Market Committee, Patran, cannot be sustained primarily on the ground that the orders passed by the appellate as well as the revisional Authorities dated 12.9.2005 and 26.7.2004 have not been complied with as the directions issued therein were specific and clear which were to determine the availability of the post for promotion to a Backward Class candidate and reservation thereon as also with regard to non-compliance of the statutory Rules governing the service. He submits that the Appellate as well as the Revisional Authority have already opined on that aspect thereby leaving it open for reconsideration by the Market Committee and if the petitioner availed of that remedy, the said Authorities could not have taken any other view, and C.W.P. No.3239 of 2009 -4- the appeal and revision would have further delayed the matter. Thus, the petitioner has approached this Court. As far as the explanation to the delay is concerned, counsel for the petitioner submits that the matter was never decided and was pending consideration either before the appellate and revisional Authority or in this Court where a writ petition was pending. He, therefore, submits that the impugned order cannot be sustained and the matter deserves to be remanded to the Market Committee, Patran, for a fresh decision as per the order passed by the appellate Authority. On the other hand, counsel for the respondent submits that the writ petition itself is not maintainable on the ground of delay and that an alternative remedy was available to the petitioner and, thus, the writ petition should be dismissed on this score alone. I have heard counsel for the parties and gone through the records of the case. Perusal of the order passed by the Secretary, Mandi Board dated 6.7.2001 as also the Financial Commissioner (Development) and Principal Secretary to Government of Punjab, Department of Agriculture dated 12.9.2005 leaves no manner of doubt that there were clear and specific directions issued to the Market Committee which it was required to reconsider, one of which being with regard to the validity of the promotion of respondent No.3 as also whether the post could be reserved for Backward class for promotion under the revised instructions which have been issued by the State of Punjab after the passing of the judgment of the Supreme Court Indira Sawhney's case (supra). Both these aspects have not been taken into consideration by the Market Committee, Patran, and there is no compliance of the orders passed by the appellate as well as the revisional C.W.P. No.3239 of 2009 -5- Authority. Appointment of respondent No.3 although having not been set aside by the revisional and appellate Authority but the eligibility of respondent No.3 for consideration was very much doubted by these Authorities. The Market Committee, therefore, was required to pass a detailed and reasoned order in consonance with the same, instead it has preferred to side-track the main issue and has merely taken shelter of the passage of time to be a ground for not making amendment in the initial decision which was taken promoting respondent No.3, which ground is not sustainable. The stand of the respondent with regard to the delay in approaching this Court as also the alternative remedy not availed by him cannot be sustained in the present case in the light of the fact that the order of promotion of respondent No.3 was always under cloud and was never finalized. The alternative remedy as has been suggested by the respondent would have been a futile exercise in the light of the earlier observations made by the appellate Authority and revisional Authority, which have been referred to above and, therefore, those cannot be taken as a ground for not entertaining the present writ petition especially when the right of the petitioner has been affected by the impugned orders. Accordingly, the order dated 2.12.2005 passed by the Chairman, Market Committee, Patran, District Patiala, is hereby set aside and a direction is issued to respondent No.2 to consider and decide the case by taking a specific decision with regard to the matter which was remanded to it for reconsideration within a period of two weeks from the date of receipt of copy of this order. C.W.P. No.3239 of 2009 -6- The writ petition stands disposed of accordingly. Copy of this order be given dasti to counsel for the parties under the signatures of the Court Secretary for compliance. April 18, 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE