CWP Nos.8727 & 5387 of 2001 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: 21.08.2009 1. CWP No.8727 of 2001 (O&M) Sube Singh Bahmani and others ...Petitioners VERSUS State of Haryana and others ...Respondents 2. CWP No.5387 of 2001 (O&M) Mehar Chand Premi ...Petitioner VERSUS State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI Present: Mr. R. N. Raina, Advocate for the petitioner(s). Mr. S. S. Bahmani, Petitioner in person. Mr. Gagandeep Singh Wasu, DAG, Haryana. Mr. Vivek Sharma, Advocate for the private respondents. *** AJAY TEWARI J. (ORAL) These writ petitions are being decided together since common questions of law and facts are involved therein. For facility of reference, the facts are being extracted from CWP No.8727 of 2001 (O&M). The petitioner no.1 is a reserved category candidate. He was appointed as a clerk on 16.8.1971, promoted as an Assistant on 20.2.1976, as Deputy Superintendent on 18.12.1987 and as Superintendent on 10.4.1989. Ajit Singh II and others v. The State of Punjab and others CWP Nos.8727 & 5387 of 2001 (O&M) -2- was decided by Hon’ble the Supreme Court (JT 1999 (7) SC 153) on 16.9.1999 and the petitioners’ case viz., Civil Appeal No.5324 of 1999 Sube Singh Bahmani and others v. State of Haryana (JT 1999 (7) SC 53) was also decided on the same date. The decision of Sube Singh Bahmani can be termed as the implementation of the jurisprudential question decided in Ajit Singh II. For the sake of clarity it would be appropriate to reproduce paragraph 88 of the judgment of Ajit Singh II:- “It is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a Court decides that in order only to remove hardship such roster point promotees are not to face reversions – then it would, in our opinion be, necessary to hold – consistent with our interpretation of Articles 14 and 16 (1) – that such promotees cannot plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. In our view, while Courts can relieve immediate hardship arising out of a past illegality, Courts cannot grant additional benefits like seniority which have no element of immediate hardship. Thus, while promotions in excess of roster made before 10.2.1995 are protected, such promotees cannot claim seniority. Seniority in the promotional cadre of such excess roster point promotees shall have to be reviewed after 10.2.1995 and will count only from the date on CWP Nos.8727 & 5387 of 2001 (O&M) -3- which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. That disposes of the ‘prospectivity’ point in relation to Sabharwal.” This concept of ‘prospectivity’ was implemented in Sube Singh Bahmani (supra). In paras 10, 11, 12 and 13, Hon’ble the Supreme Court held as follows:- “10. There is one important aspect of the case which deserves notice. It is the claim of the sole appellant, Sube Singh Bahmani that he has been promoted as Dy. Superintendent on 15.5.86 subject to the result of Chander Pal v. State of Haryana since disposed of by judgment reported in [1997 (10) SCC 474]. He contends that he has also been promoted as Superintendent on 6.1.88 and that respondents No.2, 3, 4, 5, 6 have been promoted as Deputy Superintendents on 16.11.88, 20.9.89, 11.8.92, 8.11.95 and 8.12.95, much after his further promotion as Superintendent on 6.1.1988 and that the other respondents have not even reached the level of Deputy Superintendents by that date. 11. But as per the counter filed by the State of Haryana in this Court dated 14.1.97, it is clear that on account of some dispute raised by other reserved candidates (like Sri Ravi Prakash), the date 6.1.88 of promotion of the appellant as Superintendent has been altered by the government as 10.4.89 (vide Govt. Order CWP Nos.8727 & 5387 of 2001 (O&M) -4- dated 19.2.90). That, in our view, makes all the difference. That will mean that the 2nd respondent (Darshan Singh) (1st writ petitioner) (general candidate) has reached the level of Dy. Superintendent on 16.11.88 before Supe Singh Bahmani was promoted as Superintendent on 10.4.89. It is true, the fact that Sube Singh Bahmani was promoted as Superintendent before 1.3.96 would require his not being reverted. But Darshan Singh, the 2nd respondent has become Dy. Superintendent on 16.11.88, long before Ajit Singh No.1 and as stated by us in Ajit Singh II. It does not matter whether the general candidate reaches the level of Dy. Superintendent before or after Ajit Singh No.1. Darshan Singh has to be considered senior to Sube Singh Bahmani at the level of Dy. Superintendent. 12. Of course, so far as respondents No.3 to 6 and other respondents (general candidates) are concerned, we are of the view that they can have no claim against Sube Singh Bahmani as none of them reached the level of Dy. Superintendent before 10.4.89. 13. Thus, if 2nd respondent, Darshan Singh (general candidate), in spite of his seniority at the level of Dy. Superintendent was not considered for promotion as Superintendent when Sube Singh Bahmani was promoted as Superintendent, it will be necessary to consider his case vis-a-vis Sube Singh Bahmani for CWP Nos.8727 & 5387 of 2001 (O&M) -5- fixing up their inter-se-seniority at the level of Superintendent. We direct accordingly. However, this appeal will succeed as against other private respondents (i.e. other than respondent No.2), subject of course, to the principle relating to prospectivity of Sabharwal and Ajit Singh No.1, as explained in Ajit Singh No.II, and the respective cut off dates as stated therein will apply.” It is against this backdrop of fact that petitioner(s) have challenged the orders (Annexures P-7 and P-8) dated 24.01.2001 and 30.01.2001 and the consequential seniority list. By the order dated 24.01.2001, the petitioners No.2 and 3 as well as the petitioner in CWP No.5387 of 2001 (O&M) were reverted from the post of Under Secretary to that of Superintendent in purported compliance of Ajit Singh-II, while by order dated 30.01.2001, petitioner no.1 was similarly reverted to the post of superintendent. The simple case of the petitioner(s) is that instead of having the reference point of date on which the petitioner(s) left the Cass-III service – as was indicated by Hon’ble the Supreme Court in Sube Singh Bahmani (supra) – and then working out the deemed date/s of promotion of the general category vis-a-vis the reserved category employees, the respondents straightway reverted petitioners. In the written statement, no effort has been made to relate the reversion to the formulation made by Hon’ble the Supreme Court in Sube Singh Bahmani (supra). However, it has been stated that the petitioner(s) were in excess of their quota and in support thereof Annexure R-4 has been placed on record. A perusal of Annexure R-4 however makes it very clear (and the learned Deputy Advocate General has not been able to deny this CWP Nos.8727 & 5387 of 2001 (O&M) -6- fact) that right from 1980 to 1999 at no point of time were there more than two scheduled castes Deputy Superintendents in the cadre. Thus the arguments sought to be raised in the written statement that the petitioner(s) were beyond their cadre strength has to be noticed only to be rejected. As per the formulation made by Hon’ble the Supreme Court the key date of reference is the date on which the petitioners, reserved category employees moved out of Class-III service. With regard to the petitioner Sube Singh Bahmani, the said date is 10.4.1989. Thus any general category employee who had reached the position of Deputy Superintendent upto the said date would catch up. Learned Deputy Advocate General has placed on record a tabulated compilation which has been furnished to him by Bharat Bhushan, Superintendent, F.C. Office which shows all the relevant dates of the relevant employees including all the petitioners and the private respondents. The said document is placed on record as Mark ‘A’. A perusal of the document Mark ‘A’ reveals that prior to 10.4.1989, apart from Darshan Singh (whose case was considered by Hon’ble the Supreme Court in Sube Singh Bahmani - supra) only Ram Partap and S. C. Bahuguna had become Deputy Superintendent. Thus at the most while refixing the seniority under Ajit Singh-II, apart from Darshan Singh, Ram Partap and S. C. Bahuguna had caught up with petitioner no.1. Thus, these persons are entitled to deemed date of promotion w.e.f. 10.4.1989. However, admittedly S. C. Bahuguna retired on 31.05.1992, while Ram Partap retired on 31.3.1994. In this situation, there was no occasion for petitioner no.1 to have been reverted since there was no general category candidates senior to him as Superintendent who had not been promoted as Under Secretary upto CWP Nos.8727 & 5387 of 2001 (O&M) -7- 23.4.1997 (the date of promotion of Sube Singh as Under Secretary). Likewise, on the date/s when petitioners Amar Singh and Prem Chand (at Serial No.76 and 77 of Mark ‘A’) became Superintendents, the only persons who could have caught up with them were the persons mentioned between Serial Nos.68 to 74. However, by the impugned order the persons who had been promoted in their places as Under Secretaries are persons mentioned at Serial Nos.90, 91 and 94. It is not disputed that all the promotions made prior to 01.03.1996 as Superintendent could not be undone. Thus there may have been no occasion to replace the petitioners with persons at Serial No.90, 91 and 94. Further, with regard to the petitioner in CWP No.5387 of 2001 it would be seen from Mark ‘A’ that he was promoted as Superintendent on 20.12.1993 and there is no person in the list from the general category who could have caught up with him. In the circumstances, these writ petitions are allowed. Orders dated 24.01.2001 and 30.01.2001 are set aside. The exercise of reversion of the petitioners is quashed and the respondents are directed to re-conduct this exercise in terms of the formulation by Hon’ble the Supreme Court in the case of Sube Singh Bahmani (supra). This exercise is to be completed within four months from the date of receipt of a certified copy of this order and any consequential benefits to which the petitioner(s) may be found entitled as a result of this exercise be further released to them within a period of two months thereafter. ( AJAY TEWARI ) August 21, 2009 JUDGE ashish