IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 18105 of 2009 Date of Decision: July 28, 2010 Baljit Singh …Petitioner Versus State of Punjab and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. Rajiv Atma Ram, Senior Advocate, with Mr. Vikas Kuthiala, Advocate, for the petitioner. Mr. Suvir Sehgal, Additional Advocate General, Punjab, for the respondents. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges show cause notice dated 28.3.2007 (P-8). The petition is also directed against the composite order of reversion dated 19.11.2009, reverting him as Senior Lecturer Mechanical Engineer w.e.f. 31.8.2000 and further as Workshop Superintendent w.e.f. 18.6.1997 (P-11). A further prayer has been made for declaring clause B(ii) of the qualifications prescribed under Article 320(b) of the Constitution, vide executive order dated 10.7.1991 (P-5), as ultra vires Article 14 and 16 of the Constitution. 2. Brief facts of the case are that the petitioner possessed three years CWP No. 18105 of 2009 diploma in Mechanical Engineering from the Punjab State Board of Technical Education by passing the State Board Examination in May, 1979 in 1st Division with Honours (P-1). On 4.6.1987, he was selected and appointed as Workshop Superintendent at Government Polytechnic, Batala, against a regular temporary post (P-2). In June, 1993, the petitioner also passed the Diploma in Technical Teaching in First Class from the Technical Teachers’ Training Institute, Calcutta, while he was in service (P-3). 3. It is claimed that in the respondent department, the post of Workshop Superintendent is equivalent to the post of Lecturer and the next channel of promotion is to the post of Senior Lecturer. On 18.11.1996, a Departmental Promotion Committee was constituted. On the basis of the recommendations made by the DPC, the petitioner was promoted as Senior Lecturer Mechanical Engineering in the pay scale of Rs. 3000-5000, vide order dated 11/18.6.1997 (P-4). On 10.7.1991, the respondent State issued an executive order under Article 320(3)(b) of the Constitution determining the qualifications, mode of recruitment and age etc. for making appointments to the posts of Senior Lecturers Engineering, Senior Lecturer Non-Engineering and Head of Department Non-Engineering in the Polytechnics of Punjab (P-5). This was done because no Rules were in existence governing such services. 4. The next channel of promotion from the post of Senior Lecturer is to that of Head of the Department. On the basis of the recommendations of the DPC made on 21.6.2000, the petitioner was recommended and promoted to the post of Head of Department, Mechanical in the pay scale of Rs. 12000- 16350+400 on provisional basis, vide order dated 30.8.2000. As per para 3 of the said order, the promotion of the petitioner was conditional and subject to the regularisation of his earlier promotion as Senior Lecturer Mechanical 2 CWP No. 18105 of 2009 Engineer by Punjab Public Service Commission, Patiala, as also subject to the final out come of the writ petition filed by one Shri O.P. Shiv in this Court (P-6). The petitioner was posted as Head of Department (Mechanical Engineering), Government Polytechnic, Hoshiarpur. On 4.8.2003, the petitioner was transferred and posted at Government Polytechnic, Jalandhar (Women), to officiate as Principal (P-7). 5. On 28.3.2007 (P-8), a show cause notice was issued to the petitioner stating that at the time of his promotion as Senior Lecturer, he possessed less than four years experience as Workshop Superintendent after acquiring requisite qualification. It was further mentioned that as on 18.11.1996 when DPC for promotion to the post of Senior Lecturer was held, he was having only three years and five months experience as against the stipulated period of five years. In para 4 of the show cause notice it was pointed out that the question of ineligibility of the petitioner for promotion as Senior Lecturer was challenged in CWP No. 68 of 1998 and Review Application No. 491 of 2000. It was also found that the qualification and experience for promotion to the post of Senior Lecturer as notified in the executive order dated 10.7.1991 (P-5), were wrongly interpreted and the eligibility was shown as length of service after joining whereas it should have been five years experience after acquiring essential qualification. Furthermore, the promotion was to be based on merit, seniority and experience but the petitioner was promoted on the basis of seniority alone ignoring merit and experience. Thus, the petitioner was asked to show cause as to why he may not be reverted from the post of Senior Lecturer. For the proposed action, reliance was placed on a Full Bench judgment of this Court rendered in the case of Punjab State Electricity Board, Patiala v. Ashok Kumar Sehgal, 3 CWP No. 18105 of 2009 AIR 1990 P&H 117. 6. On 11.4.2007 (P-9), the petitioner submitted his reply, inter alia, stating that the show cause notice has been issued after an inordinate delay of 10 years of his promotion as Senior Lecturer. The department itself defended his promotion in the reply filed before this Court in CWP No. 68 of 1998. The statutory Rules do not require any working experience for the cadre of Workshop Superintendent and prescription of experience is only for promotion from the cadre of Lecturer. It was further stated that 10 years experience gained by him while working on the post of Senior Lecturer is sufficient substitute for the qualification/experience prescribed under the Rules. 7. After considering the reply to the show cause notice, respondent No. 1 has passed an order dated 13.11.2009, reverting the petitioner as Senior Lecturer Mechancial Engineer w.e.f. 31.8.2000 and further as Workshop Superintendent w.e.f. 18.6.1997. It has been further ordered that no recovery of pay and other allowances is to be made for the said period (P-11). The aforementioned order is subject matter of challenge in the instant petition. It is pertinent to mention here that while issuing notice of motion, vide order dated 26.11.2009, this Court also ordered that status quo shall be maintained and accordingly reversion order has not been given effect. 8. In the written statement filed by the respondents the factual position has not been denied. It has been submitted that the qualifications for the post of Lecturer and Senior Lecturer were higher than those possessed by the petitioner as Workshop Superintendent. The post of Senior Lecturer is mainly a teaching post and to become eligible for that post a Workshop Superintendent is required to clear TTTI diploma and he must possess 5 years experience. The further submission made by the respondent is that the petitioner was promoted on wrong interpretation of the rules and he was not 4 CWP No. 18105 of 2009 fulfilling the requisite experience of 5 years after acquiring the minimum qualifications. It has also been pointed out that the entire matter has cropped up because of a representation dated 21.6.2006 made by Shri J.S. Kler, Lecturer Mechanical, claiming promotion to the post of Senior Lecturer on the basis of being senior to the petitioner. Accordingly it is claimed that after compliance of principles of natural justice the wrong has been undone. 9. We have heard learned counsel for the parties at length and perused the paper book with their able assistance. At the outset it would be appropriate to read the qualifications for the post of Senior Lecturer (Engineering), prescribed vide executive order dated 10.7.1991 (P-5), which are as under:- “Senior Lecturers (Engineering) Pay scale of Rs. 3,000-5,000. Qualifications i)A. 2nd Class Bachelor’s degree in Engineering or Technology in subject concerned or equivalent (other than AMIE) or Section A&B of AMIE (after a regular diploma course of the required subject of 3 years duration of recognized institute of the State Board of Technical Education). OR B. Regular diploma course of 3 years duration or equivalent of a recognized Institute of the State Board of Technical Education with T.T.T.I. diploma provided the candidate has made up his deficiency in T.T.T.I. training by attending two short-term courses 5 CWP No. 18105 of 2009 arranged by the T.T.T.I. with in 2½ years. ii) 5 year’s professional and/or teaching experience after acquiring the minimum qualifications out of which 2 years must be in teaching not below the post of lecturer in a Polytechnic. iii) Knowledge of Punjabi upto Matric or its equivalent standard. AGE No person shall be recruited to the service by direct appointment if he is less than 26 years or is more than 35 years of age on the 1st January of the year immediately preceding the last date for submission of applications fixed by the Commission. C. Mode of recruitment i) By promotion from amongst the Lecturers in their respective trade excepting the Mechanical trade in which promotion will be made from amongst the Lecturers in Mechanical Engineering and workshop Superintendents on the basis of their seniority to be determined from the date of appointment provided that the post of Senior Lecturer shall be selection posts and promotion to this posts shall be made on the basis of merit, seniority and experience. No one shall have any claim, whatsoever, to such promotion as a matter of right merely on the basis of seniority. ii) By direct recruitment, if a suitable candidate is not 6 CWP No. 18105 of 2009 available departmently. iii) By transfer, if a suitable candidate is not available by the afore mentioned two methods.” 10. A bare perusal of the above qualifications makes it clear that for promotion/appointment to the post of Senior Lecturer (Mechanical) a person having diploma of three years duration or equivalent with TTTI diploma would be eligible. But as per clause (ii) further condition of having 5 year’s professional and/or teaching experience after acquiring the minimum qualifications has been prescribed out of which 2 years must be in teaching not below the post of lecturer in a Polytechnic. In the present case, impugned order of reversion has been passed on the ground that though the petitioner has acquired the minimum qualifications but when he was promoted as Senior Lecturer he did not possess the requisite experience of five years. The nature of experience stipulated is 5 years’ professional and/or teaching experience after acquiring the minimum qualifications out of which two years must be in teaching on the post of lecturer or a higher post. The explanation furnished by the respondents in that regard is that he was earlier promoted due to wrong interpretation of the rules. 11. We find that the issue raised in the instant petition is no longer res integra and stands settled by a 3-Judges Constitution Bench of Hon’ble the Supreme Court in the case of Ram Sarup v. State of Haryana, (1979) 1 SCC 168. In the said case a confirmed Statistical Officer was appointed as Chief Inspector of Shops. After he had worked for about ten months on the said post, he was transferred to the post of Labour-cum-Conciliation Officer because the Government had taken a decision that the posts of Statistical Officer and Labour-cum-Conciliation Officer should be made interchangeable. 7 CWP No. 18105 of 2009 However, the Rules were not amended in conformity with the said decision. The employee continued in his new post for about nine years whereupon he was reverted on the ground that he was not qualified for the post of Labour- cum-Conciliation Officer under Rule 4(1) of the Punjab Labour Services (Class I & II) Rules, 1955, which required the experience for five years in the working of labour laws as Labour Inspector or Deputy Chief Inspector of Shops or Wage Inspector. The question which came up for consideration before Hon’ble the Supreme Court was whether his appointment was wholly void and ineffective or merely irregular. Their Lordships’ have held that the appointment as Labour-cum-Conciliation Officer was irregular and not void since the employee did not possess the requisite experience but as soon as he acquired the necessary experience mentioned in the relevant Rules, his appointment must be regarded as having been regularised. It was further held that the employee must be deemed to have been appointed to that post only on the expiry of a period of five years calculated from the date when he was appointed Chief Inspector of Shops. The judgment in Ram Sarup’s case (supra) has been followed and applied in the cases of Buddhi Nath Chaudhary v. Abahi Kumar, (2001) 3 SCC 328 and Tridip Kumar Dingal v. State of West Bengal, (2009) 1 SCC 768. In Buddhi Nath’s case (supra) it has also been held that where appointment has been made long back pursuant to a selection that need not be disturbed. 12. In the present case the petitioner was initially appointed on the post of Workshop Superintendent vide order dated 4.6.1987 (P-2). He has initial qualification of three years diploma in Mechanical Engineering, which he obtained from the Punjab State Board of Technical Education in May, 1979 in 1st Division with Honours (P-1). Thereafter while in service, he acquired 8 CWP No. 18105 of 2009 the requisite minimum qualification on 30.6.1993 by passing the Diploma in Technical Teaching in First Class from the Technical Teachers’ Training Institute, Calcutta (P-3). Thereafter he was considered and promoted as Senior Lecturer on 11.6.1997 (P-4) as the post of Workshop Superintendent is one of the feeder post for promotion to the post of Senior Lecturer as per clause C(i) of the executive order dated 10.7.1991 (P-5), issued by the President under Article 320(3)(b) of the Constitution. The petitioner was further promoted as 9 CWP No. 18105 of 2009 Head of the Department vide order dated 30.8.2000 (P-6) and subsequently posted as Principal of the Government Polytechnic, Jalandhar (Women) on officiating basis, vide order dated 4.8.2003 (P-7). It is, thus, evident that the petitioner had acquired the requisite minimum basic qualification while he was working as Workshop Superintendent within the meaning of the executive order issued by the President. However, as per the executive order he was required to have five years’ experience ‘after acquiring basic qualification’. When he was working as Workshop Superintendent he acquired minimum basic qualification on 30.6.1993 and he had about four years’ experience on 11.6.1997 when he was promoted as Senior Lecturer. Thus, he was short of professional experience by about one year on the date of promotion as Senior Lecturer on 11.6.1997. That experience was acquired by him while working as Senior Lecturer from 11.6.1997 to 30.8.2000. 13. At this stage we may consider the clauses of the executive order, which have already been extracted in para 9 above. According to clause B(ii), 5 years’ professional and/or teaching experience after acquiring the minimum qualifications is stipulated with a rider that 2 years must be in teaching on a post not below the post of lecturer in a Polytechnic. It has come on record that the petitioner acquired basic minimum qualification of T.T.T.I. diploma on 30.6.1993 and was promoted as Senior Lecturer on 11.6.1997. Till the date of acquiring minimum qualification of T.T.T.I. diploma i.e. from 4.6.1987 to 30.6.1993 he had acquired 6 years and 20 days working experience as Workshop Superintendent. From the date of acquiring minimum qualification till his promotion as Senior Lecturer i.e. from 30.6.1993 to 11.6.1997, the petitioner has acquired professional experience of 3 years 11 months and 12 days. Thereafter while working as Senior Lecturer till his further promotion as Head of the Department i.e. from 11.6.1997 to 30.8.2000, he acquired 10 CWP No. 18105 of 2009 professional/teaching experience of 3 years 2 months and 20 days. It is, thus, evident that he had acquired five years’ experience on 30.6.1998, which is merely ‘an irregularity’. This clearly answers the stipulation made in the executive order dated 10.7.1991 (P-5). Therefore the ratio of the judgments in Ram Sarup’s case (supra) and Buddhi Nath Chaudhary’s case (supra) squarely applies to the facts of the present case. No order or reversion could have been passed on the ground that the petitioner lacked experience. 14. Learned counsel for the petitioner has not pressed the prayer for declaring clause B(ii) of the qualifications prescribed by the executive order dated 10.7.1991 (P-5), as ultra vires Articles 14 and 16 of the Constitution. Therefore, the same needs no adjudication. 15. As a sequel to the above discussion, the order of reversion dated 19.11.2009, reverting the petitioner as Senior Lecturer Mechanical Engineer and further as a Workshop Superintendent is hereby quashed. He shall be deemed to be appointed as a Senior Lecturer from the date he has fulfilled the criterion of 5 years’ experience, namely, 30.6.1998 in terms of the executive order dated 10.7.1991 (P-5) and judgment of Hon’ble the Supreme Court in Ram Sarup’s case (supra). Accordingly, he would be deemed to be appointed as Senior Lecturer w.e.f. 30.6.1998 instead of 11.6.1997. It is made clear that no recovery should be made from the petitioner in respect of any salary paid to him from 11.6.1997 to 29.6.1998 when he discharged the duty on the post of Senior Lecturer. 16. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (A.N. JINDAL) 11 CWP No. 18105 of 2009 July 28, 2010 JUDGE Pkapoor 12