IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1518 of 1991 Date of decision: November 26th, 2011 State of Punjab …Appellant Versus Sukhdev Singh …Respondent CORAM : HON'BLE MR. JUSTICE MOHINDER PAL 1. Whether Reporters of Local papers 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 ? Present:- Mr.Ranvir S.Chauhan, Deputy Advocate General, Punjab for the State-appellant Mr.Vijay Pal, Advocate for the respondent *** MOHINDER PAL, J. This regular second appeal is directed against the judgment and decree dated 21-02-1991 passed by the Court of Learned Additional District Judge, Sangrur whereby appeal of the respondent- plaintiff was allowed. Judgment and decree dated 28.7.1990 passed by Sub Judge Ist Class, Sangrur was set aside. Consequently, the suit of the plaintiff for declaration to the effect that he is entitled/eligible for being promoted as Assistant Treasury Officer from the date it was due in the normal course from 1978-79 and for necessary direction to the defendant-state to promote him has been decreed. RSA No.1518 of 1991 [2] Plaintiff-respondent was working as Assistant from December 1975 and he is the senior most graduate Assistant belonging to scheduled caste. According to the rules in the Punjab Treasuries ( State Service Class III) Rules 1979, ( hereinafter referred to as 1979 Rules ) 34 % Assistant Treasury Officers are to be appointed by promotion from amongst Assistants and District Treasurers who are graduate with three years experience. 20 % of the posts are reserved for members of scheduled caste as per Punjab Govt. instructions. Plaintiff claims that his promotion as Assistant Treasury Officer was due from the year 1978-79 but he was not promoted on being not passed departmental examination which was pre-requisite condition. As per Punjab Govt. letter No.4/14/79-3 PP/13117 dated 28-9-1992 the passing of the departmental examination was essential before appointment, the promotee/appointee may be required to pass the examination within a period of 2-1/2 years of his promotion/appointment. It was also pleaded by the plaintiff that according to another letter dated 14.05.1969 issued by the Government the members of the scheduled caste and backward classes were required to be promoted on the basis of minimum qualification prescribed and there was no requirement of any test. Promotion orders with regard to Sarvshri Surjit Singh, P.L.Bhatti, P.L.Khullar, Dalip Singh, B.K.Bhalla and Thakar Dass who were promoted as Assistant Treasury Officers and including three others employees namely Jagjit Singh, Des Raj and Karam Singh were wrong as they have not passed any departmental test. In the written statement filed by the defendant-appellant the pleas taken by the plaintiff in the plaint were controverted and it was contended that under rule 12 of “1979 Rules” , no Assistant or District Treasurer was to be promoted to the post of Superintendent or Assistant Treasury Officer unless he passes the departmental RSA No.1518 of 1991 [3] examination. It has been submitted that the persons who had not passed the prescribed examination have been reverted. The pleadings of the parties culminated into trial of the suit on the basis of the following issues:- 1. Whether the plaintiff is entitled to be promoted as ATO, if so, from which date? OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Relief. Trial Court decided Issue No.1 against the plaintiff. Issue no.2 was not pressed by the learned counsel for the defendant- appellant before the Trial court. The suit of the plaintiff-respondent was dismissed. In appeal, first appellate Court reversed the decision of the trial court and decreed the suit of the plaintiff. Dissatisfied with the decision of the first appellate court, defendant-appellant has filed the present appeal which is now meant for disposal. I have heard learned counsel for the parties and have gone through the record very carefully. At the very out set, it must be mentioned here that the plaintiff-respondent was promoted as Assistant Treasury Officer by the department during the pendency of this appeal but the same was subject to the final decision of the regular second appeal. It is also a fact that the plaintiff-respondent has now been retired on superannuation on 31.03.2008. It is also admitted fact that the benefit arising out of the promotion order has not since been paid to the plaintiff as operation of the impugned judgment and decree of the first appellate court was stayed vide order dated 17.1.1992 by this court. Only question for determination in this appeal thus arises as to “ Whether the plaintiff-respondent was deprived of promotion as RSA No.1518 of 1991 [4] Assistant Treasury Officer though he was eligible for the same against reserved category in the year 1978-79 ? “ Plaintiff claims promotion as Assistant Treasury Officer from the date it was due i.e. from 1978-79 on the basis of reserved category. He was working as clerk and for the first time promoted as an Assistant being graduate on 17.12.1975. As per 1962 Rules framed by the Govt. for the post of Assistant Treasury Officer, it was necessary that the incumbent should be graduate having two years experience as Assistant. Certain posts were meant for reserved category in the Roaster point prepared by the department. The plaintiff-respondent was the senior most graduate Assistant eligible for promotion as Assistant Treasury Officer on 27.10.1978 and he was required to be promoted against vacancy at serial number 26 of the Roaster being scheduled caste but in his place post was allotted to general category candidate. He made representations to the department number of times but those were not considered and remained un-decided . Again the post at point 31 of the Roaster had fallen which too was meant for reserved category and it was allotted to other candidate by ignoring the plaintiff without assigning any reason and without considering the representations which were already pending. At this , learned State counsel pointed out that new rules were framed in the year 1979 according to which the candidate must have passed the prescribed test but the appellant has not cleared the test so he was not considered for promotion. Here, it is mentioned that department was granting promotions to other employees with a rider to clear departmental test even after the framing of rules of 1979 but in the case of appellant this policy was not adopted and he was not promoted even by a rider as has been done in other cases . It has been proved on record that the posts meant for reserved category has been fulfilled by non-reserved category without getting the approval RSA No.1518 of 1991 [5] and permission to de-reserve the same. Department has acted in a discriminatory manner as is evident from the record . Learned First Appellate Court has rightly considered all the aspects of the case while decreeing the suit of the plaintiff. It could not be pointed out by the learned counsel for the defendant-appellant that such findings are based on misreading of evidence or that material evidence has not been taken into consideration. Conclusions drawn by the learned first appellate court contain complete reasoning which find mention in paras number 16,17 and 18 of the Judgment. I am in full agreement with the reasoning of the first appellate court. Under the circumstances, I do not find any patent illegality or irregularity in the Judgment of the first appellate court which may give rise to any substantial question of law in the present appeal. The Judgment and decree of the First Appellate Court is maintained. Resultantly, this appeal is hereby dismissed being without any merit. (MOHINDER PAL) JUDGE November 26, 2011 p.singh