IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RA No.213 of 2010 in/and CWP No.7809 of 1989 (O&M) Date of decision: 30.08.2011 Balle Ram Verma, Assistant, Establishment Branch, Maharshi Dayanand University, Rohtak. ...Petitioner versus Maharshi Dayanand University, through its Vice-Chancellor, Maharshi Dayanand University, Rohtak, and another. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Subhash Ahuja, Advocate, for the petitioner. Dr. Balram K. Gupta, Senior Advocate, with Mr. Vijay Saini, Advocate, for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ?No. ---- K.Kannan, J. 1. When the counsel for the petitioner had reported no instructions, by an order dated 21.03.2010, I had summarily rejected the petition, stating that the claim for promotion which was made in the year 1989, cannot survive for consideration, since he ought to have retired from service and the claim itself had become stale. Subsequently through a review application, it was stated that the applicant had not retired and that he would be superannuated only in May, 2014. It was also contended that if the case had been decided on merits, his contention would have been accepted. The petitioner would retire as a Deputy RA No.213 of 2010 in/and CWP No.7809 of 1989 (O&M) - 2 - Registrar and sought for reconsideration on the ground that the decision had been rendered on a wrong basis that the claim had become stale. 2. I had, therefore, sent notice of the application to the counsel for the respondents and have allowed the parties to argue the matter on merits, since I see the point that the earlier judgment contains fundamental flaw of making a wrong assumption that the case had become infructuous. 3. The petitioner joined the services of the respondent- University on 03.10.1974 and was promoted to the post of a Senior Clerk and then to the post of Assistant on 24.05.1980 and 26.03.1982 respectively. He admittedly belonged to the Backward Class community and is governed by the Rules made by the Executive Council constituted under the Maharshi Dayanand University Act of 1975. The Rules that have been framed for non-teaching staff are governed by Maharshi Dayanand University Non-Teaching Employees (Terms and Conditions) Rules, 1980. Rule 5 states that the categories and scales of pay of the posts shall be as specified in Schedule-I annexed to the Rules and the Executive Council may revise the schedule at its discretion from time to time. The fact, however, remained that the Rules did not contain any schedule. The Rules themselves prescribe that in case no provision is made under the Rules, the condition of service as specified in Haryana State Government Rules on the subject, would govern. 4. The writ petition relates to the benefit of reservation for promotion to the post of Deputy Superintendent from the post of Assistant which post the petitioner held at the time of the filing of RA No.213 of 2010 in/and CWP No.7809 of 1989 (O&M) - 3 - the writ petition. The petitioner relied on the reservation policy for promotion as contained in the Haryana Government instructions for Class-III and IV employees. A representation had been made along with some other persons in the cadre of Assistants to the Executive Council of the University claiming the benefit of reservation for promotion. The claim was made on the basis that the University by its Resolution No.26 of the Meeting held on 25.04.1981, adopted the reservation policy of the Haryana Government, vide its proceedings dated 16.12.1980. As per the policy pronounced by the Government, 10% of posts were reserved for backward classes in Class-III and IV posts by way of promotion. 5. The petitioner contended that the post of Deputy Superintendent is a Class-III post in Haryana Government. It was, therefore, equally applicable to the respondent-University, but the University never granted the benefit of reservation to anyone in spite of the policy decision taken by the University through the Resolution, referred to above. The cause of action for the petitioner was that the act of the respondents in promoting about 22 persons from the post of Assistant to the post of Deputy Superintendent without giving the benefit of reservation to Scheduled Castes and Backward Classes. Of the 22 persons, the petitioner would make specific reference to the fact that amongst the candidates, two persons belonged to the Backward Class at Serial Nos.12 and 20, who were Jai Kishan and Phul Chand respectively and the 22nd post had been filled-up by one Ashok Kumar Arora. The promotion order had been issued to the latter on 17.04.1989. The first two persons at Serial Nos.12 and 20 were actually promoted on their own RA No.213 of 2010 in/and CWP No.7809 of 1989 (O&M) - 4 - turn on the basis of seniority-cum-merit and did not actually secure the promotion by any rule to reservation. The petitioner, however, has a grievance that as per roster point declared in a block of 100 vacancies, if 10% were to be filled from amongst the candidates of backward class, the next roster point at serial number 22 ought would have gone to a backward class candidate instead of being offered to Ashok Kumar Arora, who was not a BC candidate. The petitioner claims that he had again made representations for considering to the post which had been wrongly given to Ashok Kumar Arora, but since it was not favorably considered, he had been compelled to file a writ petition. 6. The petitioner would refer to the fact that the Executive Council of the University had taken a decision at a meeting held on 17.03.1988 that all the promotions upto the level of Superintendent from Clerk's post were to be done wholly on the basis of promotion and that reservation for Scheduled Castes, Backward Classes and Ex-Servicemen, would be made as per the Haryana Government instructions. Since the issue of promotion and the reservation could be considered as regards the applicability of the Haryana Government instructions only on the actual categorization of the various cadres of employees and since the University had itself not made such categorization, the petitioner would claim that he would be entitled to the same categorization as falling in Class-III posts as in the Haryana Government categorization. This aspect itself appears to have been taken up by the Executive Council in its meeting dated 09.08.1988 and while considering the recommendation of the Committee constituted to categorize the various posts and pay RA No.213 of 2010 in/and CWP No.7809 of 1989 (O&M) - 5 - scales into Classes A, B, C and D and make it a part of the statutory relating to Service and Conduct Rules being framed by the University, the Committee had decided to defer the proposals since it would require a reexamination critically. In the absence of a clear decision taken by the Council, the petitioner would contend that he should be treated as governed by the same manner of classification as was done by the Haryana Government. Referring to the letter of the Chief Secretary of the Haryana Government, dated 12.01.1989, the petitioner would contend that the post of Superintendent was a Class-III post in the Haryana Government and as such, the benefit of reservation should be applicable for promotion to the post of Deputy Superintendent. The categorization has also been affirmed by the letter of the Director, Welfare of Scheduled Castes and Backward Classes Department, Haryana, dated 12.01.1989. The petitioner's specific contention is that, no roster had been maintained at all by the University for properly addressing the claims to reservation of the Backward Classes and Scheduled Castes. The writ petition, therefore, sought for a direction for a mandamus to declare that the petitioner was entitled to be promoted at least from the date when a promotion was made to the post of Deputy Superintendent on 11.10.1984 (Annexure P-3). 7. The respondent-University has countered all the allegations raised by the petitioner and would state at the outset that the leave regulations appearing the calendar of the University contained specific categories and Class-B post included persons appointed in the pay scales the minimum of which was Rs.525 or above and which was not included RA No.213 of 2010 in/and CWP No.7809 of 1989 (O&M) - 6 - in Class-A post. The first contention, therefore, was that, since the post of Deputy Superintendent carried a scale of pay which was above Rs.525, it was a Class-B post and hence, the rule of reservation as provided in the Haryana Government, could not be applied. Referring to the petitioner's contention about the Resolution passed on 17.03.1988 by the Executive Council to apply the rules of reservation for Scheduled Castes and Backward Classes, the respondents would contend that they had promoted 8 Clerks to the post of Assistant by giving effect to the rules of reservation as per the Government instructions. But since the post of Deputy Superintendent was a Class-II post, no reservation has been given. 8. As an alternative contention, it is pleaded by the respondents that after 17.03.1988, the respondents had effected only 7 promotions of Assistants to the posts of Deputy Superintendent and the first reservation for a Backward Class candidate as per roster would be at point 10 and the petitioner could not have been considered for the post at that time. Responding to the contention in the writ petition about Resolution No.26 passed on 24.04.1981 referred to by the petitioner as the date when the University had adopted a decision to follow the reservation policy, it is contended that the Resolution was not given effect to for constitutional and other technical reasons. It is only thereafter through the Resolution No.54, dated 17.03.1988, the reservation policy was fully implemented. If the claim of the petitioner were to be considered by applying the reservation policy from the year 1988, the petitioner would not figure in as among the eligible candidates, since only 7 Assistants had been RA No.213 of 2010 in/and CWP No.7809 of 1989 (O&M) - 7 - promoted and the first post for a Backward Class was only at roster point 10. 9. The whole case has to be, therefore, considered only from two essential points of controversy: (i) as regards the categorization amongst the various cadres and the particular categorization to which post of the Deputy Superintendent was comprised of in order to see if the policy of reservation could be applied; (ii) the date from when the policy of reservation could be applied at the University, if such post fell in Class-III. First of all, I cannot accede to the contention of the respondents that the leave regulations of the Kurukshetra University were to be applied and that was how the Maharshi Dayanand University considered the post of the Deputy Superintendent as falling in Class-II posts. When there were specific Rules made for the Maharshi Dayanand University for non-teaching staff and the grades in categories of the posts were to be taken as in the manner referred to under the Schedule, then the categorization in the Schedule alone would have been relevant. If no Schedule had been incorporated under the Rule, then the manner of reckoning must be seen through the Rules themselves which stated that as per Part-III “Other conditions of service”, the Government Rules alone will apply. It is not denied that the Government Rules categorized a Deputy Superintendent post as a Class-III post. Reliance on the leave regulations of Kurukshetra University was, therefore, wholly untenable. Resultantly, the Rules of Maharshi Dayanand University that specifically provided that in the absence of any provisions relating to the conditions of service of an employee, the Haryana State Government Rules on the RA No.213 of 2010 in/and CWP No.7809 of 1989 (O&M) - 8 - subject alone would apply. We have already seen that the Chief Secretary to Haryana Government has clarified by his letter dated 12.01.1989 that the rule of reservation for promotion applied to Deputy Superintendent/Assistant's post. It is not very clear as to how and when the leave regulations of Kurukshetra University were taken as governing the classification in the Maharshi Dayanand University. The Resolution No.39 which was said to have been passed on 09.08.1988, stating that the classification of posts already available as per the leave regulation would be substituted by the classifications obtained from the Government of Haryana, cannot itself mean that it was the leave regulation which governed the classification. The Executive Council could not have taken any decision to apply the leave regulation of Kurukshetra University when the Maharshi Dayanand University Rules provided themselves otherwise. 10. In any event by the year 1989 by their own decision through the Resolution of the Executive Council on 09.08.1988 and the communications from the Chief Secretary to Government and the Director of Welfare of Scheduled Castes and Backward Classes Department, it was clearly made out that the post of the Deputy Superintendent was to be classified as 'Class-III' post. This cannot be taken as being effective only from the year, 1988 by virtue of the Resolution, for, I have already held that the Haryana Government Rules alone would prevail in the manner of categorization even from the year when the Rules were framed in the year 1980 and made applicable. If the Rules had come into effect in the year 1980, then the Resolutions already RA No.213 of 2010 in/and CWP No.7809 of 1989 (O&M) - 9 - made on 24.04.1981 providing for 10% reservation for Backward Classes could not have been given a go-by. It is too lame an excuse to state that the Resolution passed on 24.04.1981 was not given effect to. It is un-understandable as to what the respondents mean by saying that the Resolution could not be given effect to due to “constitutional reasons”. There was no constitutional bar against giving effect to such Resolutions. Indeed, if the Government had already taken a decision to extend the reservation policy also for promotions for Backward Classes and Scheduled Castes and the Government Instructions dated 16.12.1980 had been specifically approved by a Resolution dated 24.04.1981, then, at the time when they were undertaking the issue of promotion to the Deputy Superintendent post, they could not have omitted to apply the reservation policy. It is admitted by the respondents that no promotion had been given by application of the rule of reservation till the year, 1989. The petitioner has given the names of Deputy Superintendent along with the respective dates of promotion from the post of Assistant and if a list were to be drawn, it is clear that in the first 20 posts only 2 persons have been given promotion and that too on their own seniority positions. If the roster point were to be applied after 20, the first point when Backward Class was entitled to be considered to promotion was at roster point 22 and as pointed out by the petitioner, a person who was from the General Category, had been promoted on 17.04.1989. That was certainly a date when the petitioner was entitled for consideration. I would, therefore, hold that, denial of promotion to the petitioner on 17.04.1989, was not justified, and the petitioner is entitled to be considered as having been RA No.213 of 2010 in/and CWP No.7809 of 1989 (O&M) - 10 - promoted as on 17.04.1989. 11. Consequently, the review application and writ petition are allowed. The petitioner shall be treated as having been promoted on 17.04.1989 to the post of Deputy Superintendent with all the consequential attendant benefits. The petitioner shall be fitted in the appropriate post and the scales of pay and all the arrears shall also be granted to him within a period of 8 weeks from the date of receipt of copy of this order. (K. KANNAN) JUDGE 30.08.2011 sanjeev