C.W.P. No.715 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.W.P. No. 715 of 2009 (O&M) DATE OF ORDER : 19.12.2011 Lakhbir Singh PETITIONER VERSUS State of Haryana and others RESPONDENTS CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri Ravinder Malik, Advocate for the petitioner. Shri Harish Rathee, Senior D.A.G. Haryana. Shri C.B.Goel, Advocate for respondent-5. MAHESH GROVER, J. The limited question that the petitioner raises in this petition is that he should be considered for promotion to the post of Junior Scale Stenographer from the date when the regular vacancies arose and he should be promoted regularly with effect from the date when his juniors i.e. respondents 3 to 8 were promoted. The petitioner who is working as a Steno Typist since 1994, passed his qualifying departmental test for promotion to the post of Junior Scale Stenographer on 19.6.2004, whereas respondents 3 to 8 passed the requisite test C.W.P. No.715 of 2009 -2- much subsequent to the petitioner. Respondent No.2 is said to be promoted from the post of Steno Typist as Junior Scale Stenographer against a vacant post of Senior Scale Stenographer, even when such a vacancy of Junior Scale Stenographer was not available. The petitioner was promoted on ad hoc basis as Junior Scale Stenographer against the vacant post of Senior Scale Stenographer along with 16 other Steno Typists by granting them the pay-scale of Junior Scale Stenographer. The order contemplated that the petitioner was being promoted on ad hod basis till a vacancy actually arose and that the seniority would be determined on the availability of such regular posts. His grievance is that respondents 3 to 6 who passed the qualifying departmental examination subsequent to him, have been promoted on similar basis, but the respondents are now going to fill up regular vacancies of Junior Scale Stenographer from the feeder cadre i.e. Steno Typist, but the case of the petitioner who was promoted on ad hoc basis, is not being considered even though he has been working on ad hoc basis in the pay-scale of Junior Scale Stenographer prior to respondents 3 to 6. There is a specific averment made in the petition that initially, 8 vacancies for general category became available, but the same were filled up in an arbitrary and illegal manner by promoting four persons from adhoc promotees i.e. Junior Scale Stenographer who were promoted, and then four vacancies from the Steno Typists by promoting respondents 3 to 6 and that in this process of filling up regular vacancies, the case of the petitioner was ignored, even though he ought to have been considered senior, having passed the test prior to the other similarly situated persons promoted along with him on the same terms and conditions. This Court during the course of proceedings, put a specific query to the respondents as to what are the rules governing promotions to the post of Junior C.W.P. No.715 of 2009 -3- Scale Stenographer, to which the learned counsel for the respondents responded by saying that there were no such rules and in fact, the promotions were being made purely on the basis of precedents earlier being followed. A specific affidavit was required of the respondents who have now filed the same by way of an deposition of Shri Rajbir Singh, Special Secretary to Government, Haryana wherein it has been stated that after the issuance of the instructions dated 13.8.1976 attached as Annexure R-2, the following criteria for promotion to the post of Junior Scale Stenographer is being followed in the Haryana Civil Secretariat, the relevant portion of which is extracted here below :- “i. Two years experience as Steno-typist ; ii. Qualifies the departmental test in Hindi short-hand at the speed of 80 W.P.M. and transcription thereof at the speed of 15 W.P.M. and in English short-hand at the speed of 100 W.P.M. and transcription thereof at the speed of 20 W.P.M. (8% mistakes are allowed in each). iii. Seniority-cum-fitness and subject to the condition of availability of posts.” It is evident that a person is required to have two years experience as Steno-typist and should have qualified the departmental test in shorthand at the speed which has been prescribed and the final selection is to be made on the basis of seniority-cum-fitness subject to the condition of availability of posts. It is not disputed that the petitioner has the necessary experience and has qualified the departmental test. It is also not disputed that the petitioner is fit to be promoted and the only clause that has been taken against him is that he is junior to the persons who have already been promoted on regular basis. According to the respondents, as per the seniority position of Steno-Typist Lakhbir Singh is at Sr.No.32 and 12 C.W.P. No.715 of 2009 -4- senior persons have qualified the departmental test for promotion to the post of Junior Scale Stenographer, but they cannot be promoted due to non-availability of vacancies. The number of senior persons can be further increased, if any person senior to the petitioner qualifies/passes the essential departmental eligibility test for promotion to the post of Junior Scale Stenographer. Thus, the claim of the petitioner is being denied solely on the ground that he is not senior to the persons already promoted. The moot question is, that a person who is seeking promotion to the post of Junior Scale Stenographer, whether his seniority is to be determined after he or she acquires the necessary eligibility by passing the departmental test ? It is not disputed that the petitioner has passed the departmental test prior to the persons who were promoted on regular basis and whose names find mention in the list in which he himself was promoted on ad hoc basis. The question is no longer res-integra as the Full Bench of this Court in Punjab State Electricity Board, Patiala and another v. Ashok Kumar Sehgal and others 1989(4) S.L.R. 437, observed as follows :- “The question then inevitably will crop up, who should get the promotional post. Should it in these circumstances go to the senior out of the two, even though the senior acquired eligibility later than the junior, or should it go to the one who acquired eligibility first. In this situation, seniority per se cannot be intended to be taken as the basis for promotion, as otherwise, it would lead to undesirable results. If it is to be dealt otherwise, it would lead to breeding of manipulations, machinations, calculations and caprice. Designedly the case of promotion of the first eligible can deliberately be kept delayed with oblique motives so as to let suitable rivals come C.W.P. No.715 of 2009 -5- in and in this manner his acquired eligibility can be frustrated by someone senior acquiring eligibility far far late. Since different conditions of eligibility for promotion from Linesman to Line Superintendent have been prescribed by the Board on the differences based on the educational qualification-cum-service experience, respectively for non- diploma holders & diploma holders having regard to the requirements of promotional posts and in the interests of efficiency of service, the eligibility criteria is the first dominant factor and thereafter comes the principle of seniority governing the fate when two equal eligible stake claim to the promotional post. In that situation, the senior person would get the promotional post on both acquiring eligibility on the same date, even though the promotional post falls vacant later. Therefore, we wish to emphasize here that seniority alone is not the basis for promotion from the post of Linesman to the post of Line Superintendent, as is the common belief of the writ petitioners in the instant litigation, and more so by Ashok Kumar Sehgal, who in his writ petition except for pleading his seniority number and the numbers of those who were junior and promoted, has done nothing else. Significantly nothing has been pleaded by him disclosing as to when did anybody acquire eligibility for promotion and when did the post fall vacant and which person got that post and by what right or negation thereof.” For the aforesaid reasons, this Court is of the opinion that once the C.W.P. No.715 of 2009 -6- eligibility criteria has been prescribed and a departmental test being one of the requisites, which a person acquires prior to the other incumbents, then at the time of consideration for promotion to the desired post, a person who acquires the eligibility by passing a test, deserves to be considered as senior to the other in so far as the claim to promotion is concerned. Otherwise, this would lead to putting a premium on inefficiency, as the person who has not passed the test and has squandered some time as against a person who is qualified, would stand to benefit by getting the promotion over and above the claim of a person who as demonstrated, is proficient. For the aforesaid reasons, the writ petition is accepted. The respondents are directed to consider the claim of the petitioner to the regular post with effect from the date when his juniors have been promoted on regular basis as Junior Scale Stenographer. (MAHESH GROVER) December 19, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO