IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) L.P.A.No. 227 of 2007 (O.&M.) The State of Haryana and another. ....... Appellants through Shri Rameshwar Malik, Additional Advocate General, Haryana. Versus Tara Chand Sihag and another. ....... Respondent no.1 through Shri Puneet Bali, Advocate. Respondent no.2 through Nemo. (2) L.P.A. No.231 of 2007 (O.&M.) Inderpal Singh. ....... Appellant through Shri R.K. Malik, Senior Advocate with Shri Rajesh Kumar, Advocate. Versus State of Haryana and others. ........ Respondent nos.1 & 2 through Shri Rameshwar Malik, Additional Advocate General, Haryana. Respondent no.3 through Shri Puneet Bali, Advocate. Respondent no.4 through Nemo. CORAM: HON'BLE MR.JUSTICE VIJENDER JAIN, CHIEF JUSTICE HON'BLE MR.JUSTICE MAHESH GROVER .... L.P.A.No.227 of 2007 (O.&M.) -2- .... Date of Decision: 2.7.2008 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... VIJENDER JAIN, CHIEF JUSTICE This order will dispose of the above mentioned two Letters Patent Appeals which have been preferred against judgment dated 4.10.2007 vide which C.W.P.No.17519 of 1998 filed by Tara Chand Sihag and Bhagwan Singh (respondent no.1 & 2 in L.P.A.No.227 of 2007 and respondent nos. 3 and 4 in L.P.A.No.231 of 2007) was allowed by the learned Single Judge. Tara Chand Sihag and Bhagwan Singh, who are members of the Haryana Forest Service, Group-B, moved this Court by way of the aforesaid writ petition with a prayer that an appropriate direction be issued to the State and its authorities to consider them for promotion with retrospective effect in the said Service against the posts which were available prior to the amendment dated 25.7.1983 carried out in the Haryana Forest Department (State Service Group-B) Rules,1980 (hereinafter referred to as `the Rules'). It was their stated case that the vacancies were available prior to the aforesaid amendment and, therefore, they ought to have been considered for promotion in accordance with the Rules (unamended). It was their further case that on 20.12.1983, the State government had created posts for the year 1983-84 and since these additional posts were created, L.P.A.No.227 of 2007 (O.&M.) -3- .... they ought to have been considered w.e.f. 1.4.1983 because the period of 1983-84 would start reckoning from April,1983 and accordingly, they had a right to be promoted as against these posts. The State of Haryana and its authorities had refuted the claim as made in the writ petition by saying that the posts had been created vide government's letter No.50089-FT-83/17639 dated 20.12.1983 and the creation of these posts would naturally mean that the vacancies had occurred after the date when these posts were created and it cannot be said that the same were available w.e.f. 1.4.1983, and since these posts came into existence after the amendment of the Rules on 25.7.1983, they had to be filled up in accordance with the Rules existing at that point of time, i.e., the Rules (amended). In L.P.A.No.231 of 2007, appellant-Inderpal Singh has made the sole grievance that he was not a party to the writ petition and since by virtue of the impugned judgment, the learned Single Judge has granted retrospective promotion to Tara Chand Sihag and Bhagwan Singh, it would affect him as he was continuously senior to them and hence, prayed for setting aside the impugned judgment on the point of violation of principle of audi alteram partem. Learned Single Judge, while dealing with the controversy, had come to the conclusion that on 25.7.1983, there was balance of 22 posts in the cadre out of which 15 posts were for promotional quota officers and 7 for direct quota officers. He rejected the plea of the State and its authorities that only eight posts were created on 20.12.1983 and, therefore, it cannot be L.P.A.No.227 of 2007 (O.&M.) -4- .... said that on the date of the amendment of the Rules, 22 posts were existing and further concluded on the memo dated 20.12.1983, as also on the basis of the advice given by the Law Department of the Government of Haryana, that these 8 posts which were created on 20.12.1983, would relate to the existing vacancies in April,1983 and held that on the date of the amendment of the Rules, 22 posts were available, out of which 15 posts fell vacant for promotional quota officers and 7 posts for the direct quota officers. The learned Single Judge then disposed of the writ petition by directing as follows:- “In the light of what has been discussed above, the present writ petition is allowed. The respondents are directed to consider and promote the petitioners to the Haryana Forest Service (Group B) retrospectively against the vacancies, which were available prior to the amendment dated 25.7.1983 made in the Haryana Forest Department (State Service Group B) Rules,1980 with all consequential benefits, i.e., seniority, arrests of pay etc.” Shri Rameshwar Malik, Additional Advocate General, Haryana appearing for the appellants in L.P.A.No.227 of 2007 contended that a graphic account was given in the affidavit dated 9.5.2007 which was totally ignored by the learned Single Judge. It was very clearly depicted in paragraphs 4 and 5 of the aforesaid affidavit that 8 new posts were created vide memo dated 20.12.1983, but these posts were not available on 1.4.1983 as claimed by the writ petitioners or as read into by the learned Single L.P.A.No.227 of 2007 (O.&M.) -5- .... Judge. The posts could have come into existence only subsequently and, therefore, the learned Single Judge fell in grave error in holding as above. The aforesaid plea was opposed with equal vehemence by Shri Puneet Bali, learned counsel appearing Tara Chand Sihag by stating that on 20.12.1983, the State Government had created these posts which were available prior to the amendment of the Rules and, therefore, the claim of the writ petitioners should have been considered in accordance with the Rules (unamended) to fill up these vacancies by granting them promotion to which they were entitled to. Shri R.K.Malik, learned Senior Advocate appearing for the appellant in L.P.A.No.231 of 2007 argued that the impugned judgment has the effect of unsettling the settled position and, therefore, the same deserves to be set aside, more so because Inderpal Singh-appellant was not even a party to the writ petition and no order which could have adverse impact on his career could have been passed behind his back. We have heard the learned counsel for the parties at some length and have carefully perused the record. The memo dated 20.12.1983 is, in fact, merely a schedule for new expenditure for the year 1983-84 in respect of the Social Forestry Scheme and it gives an estimated cost for which administrative approval was granted by the Government of Haryana. It also mentions various heads under which the planned expenditure is proposed to be carried out. If under the Scheme, the government felt that some posts had to be created and were actually created as is borne out from affidavit dated 9.5.2007, then it does L.P.A.No.227 of 2007 (O.&M.) -6- .... not imply that the same were available as on 1.4.198 or even on the date of the amendment in the Rules, i.e., n 25.7.1983, as has been held by the learned Single Judge. The posts would necessarily come into existence either on the date of creation or subsequently when the financial implications are met with, but it cannot be said that they could have come into existence prior to the creation. Much was made about letter dated 26.5.2006 in which the Principal Chief Conservator of Forests, Haryana, wrote to the Commissioner & Secretary, Government of Haryana, Forests Department, that the ratio of direct recruitment quota and promotee quota into Haryana Forest Service is 1 : 2 and according to which 15 posts were meant for promotion quota officers and 7 for direct quota officers and out of these, 9 posts had already been filled up and balance 6 posts were against the promotion quota. The following chart was given in the said letter:- “1.Sanctioned posts as per seniority list for the year 1.1.83 = 30 2. Total sanctioned posts of ACF/DCF as per SNE for the year 1982-83 and 1983-84= 15 3. Deputation Posts of DDP = 3 4. On creation of Rewari and Fatehabad Forest Divisions = 2 5. Posts vacated on promotion of Shri Hari Ram Yadav and Shri B.D.Monga, from HFS to IFS on 20.4.82 = 2 Total posts = 52 A. Filled up posts as on 1.1.84 as per seniority list of HFS = 30 L.P.A.No.227 of 2007 (O.&M.) -7- .... Balance vacancies = 22” The aforementioned letter was, however, never acted upon by the State Government and was withdrawn and the factual position was clarified by the affidavit dated 9.5.2007. There was, thus, no basis on which the learned Single Judge could have concluded as above. Having considered the matter in its entirety, we are of the opinion that the learned Single Judge fell in grave error in concluding that the posts, which had come into existence in December,1983, could have been considered to be available on a date prior to it, i.e., on 1.4.1983 or on 25.7.1983 when the Rules were amended. Accordingly, these appeals are accepted and the impugned judgment is set aside. ( Vijender Jain ) Chief Justice July 02,2008 ( Mahesh Grover ) “SCM” Judge