IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP NO.13638 of 2008 Decided on : 24.09.2008 Baldev Raj ....Petitioner VERSUS Punjab State Agricultural Marketing Board & another ....Respondents CORAM:- HON'BLE MR. JUSTICE M. M. KUMAR HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. Gurminder Singh, Advocate for the petitioner. Ms. G. K. Mann, Advocate for respondent No.1. Mr. V. K. Kaushal, Advocate for Ms. Sangeeta Dhanda, Advocate for respondent No.2. Mr. Puneet Gupta, Advocate for respondent No.3. 1. Whether Reporters of local papers may be allowed to see the judgment? yes 2. To be referred to the Reporters or not? yes 3. Whether the judgment should be reported in the Digest? yes M. M. KUMAR J. 1. The petitioner who belongs to backward class category has approached this Court with a prayer for quashing order dated 28.07.2008 (Annexure P-5) whereby the Punjab State Agricultural Marketing Board (for brevity ‘the Board’), respondent No.1 has passed an order withdrawing CWP NO.13638 of 2008 -2- the Current Duty Charge of the post of SDO (Electrical) from the petitioner and has given the same to respondent No.2-Surinderjit Singh Angrula who is far junior to the petitioner. It is claimed that the order dated 28.07.2008 violates Article 14 and 16(1) of the Constitution as also the instructions issued by the State Government in this respect. It has further been prayed that direction be issued to the Board to permit the petitioner to continue on Current Duty Charge as Sub-Divisional Officer (Electrical) being the senior-most and fully qualified Assistant Engineer and suitable for the post of Sub Divisional Officer. 2. Brief facts of the case necessary for disposal of the controversy raised in the instant petition are that the petitioner joined service of the Board as Junior Engineer (Electrical) by way of direct recruitment on 05.01.1982. Surinderjit Singh Angrula-respondent No.2 joined as such on 22.05.1994 after more than 12 years of the joining of the petitioner. On 27.06.2002, the petitioner was promoted and designated as Assistant Engineer in the higher grade of pay i.e. Rs.7220-11320. On 06.10.2006, he being the senior most Assistant Engineer (Electrical) was given Current Duty Charge of the post of SDO(Electrical) at Gurdaspur. He continued as such even when he was transferred to Amritsar (Annexure P-3). 3. Surinderjit Singh Angrula-respondent No.2 was holding Current Duty Charge as SDO(Electrical), Jalandhar. However, it was withdrawn by the Board on 18.02.2008. He was thereafter transferred on 02.05.2008 as Junior Engineer in the office of SDO (Electrical), Gurdaspur. On 28.07.2008, vide impugned order (Annexure P-5), the Current Duty Charge given to the petitioner was withdrawn and the same was given to respondent No.2-Sh. Surinderjit Singh Angrula. The petitioner has placed CWP NO.13638 of 2008 -3- reliance on instructions dated 19.04.2005 (Annexure P-6) clarifying that the Current Duty Charge against vacant post has to be given on the basis of seniority to those employees who are eligible for the post in all respects and it is claimed that the impugned order dated 28.07.2008, contravenes the aforementioned instructions. 4. In the written statement filed by respondent No.1, the ground taken is that respondent No.2 belongs to reserved category of scheduled castes and he has been given Current Duty Charge of the post belonging to direct quota and reserved for scheduled castes category, whereas the petitioner belongs to backward class and promotee’s quota. He should claim only promotion for the post belonging to promotion quota of backward class category. It has further been pleaded that according to Punjab State Agricultural Marketing Board (Class-II Service) Rules 1988 (for brevity the 'Rules'), there are seven posts of Sub-Divisional Officer (Electrical). As per appendix 'B' of Rule 8 at Serial No.1, 45% of the posts are reserved for direct recruit and 55% are reserved for promotion. As such, out of 7 posts, 4 posts fall in the promotion quota and 3 of them fall in direct recruit quota. All the posts against promotion quota stands filled up according to the seniority. It is further pleaded that according to Government's instructions, the petitioner was given Current Duty Charge against direct recruit quota post. There is no person belonging to reserved category of scheduled caste working on the post of Sub Divisional Officer and as such respondent No.2 who belongs to scheduled caste category has been given the Current Duty Charge of the post of Sub Divisional Officer (Electrical). Although the petitioner is senior most Assistant Engineer, the respondent has claimed that he could be promoted against a promotee quota CWP NO.13638 of 2008 -4- post which is already filled up. Respondent No.2 has been rightly given the Current Duty Charge against the direct quota post belonging to scheduled caste. In para 5, it has been conceded that respondent No.2 is 12 years junior to the petitioner but there is no comparison between the petitioner and respondent No.2 because the later belongs to reserved category of scheduled caste whereas the petitioner belongs to reserved category of backward class only. It has also been conceded that the cadre of Assistant/Junior Engineer is a feeder cadre for promotion to the post of Sub Divisional Officer in the Board. 5. The petitioner has filed replication to the written statement filed by respondent No.1. He has asserted that respondent No.2, who also belongs to promotional quota could have claimed promotion on the post of Sub Divisional Officer only against promotee quota but in the seniority he is far junior as Assistant Engineer (Electrical). However, the Board has justified handing over Current Duty Charge to respondent No.2 on the ground that he is a candidate eligible to be promoted under the promotee quota but Current Duty Charge has been given to him against a direct quota post because he belongs to reserved category whereas the petitioner himself is also belongs to reserved category of backward classes. It has also been claimed by the petitioner that the assertion of the Board is wholly misconceived as there are two persons belonging to scheduled caste category already working on the post of SDO(Electrical) and their quota is complete. It is claimed that both the persons are senior to Sh. Liakat Rai and Sh. Atma Singh, who belongs to scheduled caste category. When Atma Singh was promoted as SDO (Electrical) and seniority list was redrawn in accordance with the judgment of Hon’ble the Supreme Court of Ajit Singh CWP NO.13638 of 2008 -5- Janjua v. State of Punjab 1996 (2) SCC 715 against the remarks column it was specifically recorded as under:- “Although Shri Atma Singh was promoted prior to the officials listed at serial no.1 to 6 but his promotion was wrongly done. As per the letter no.3/34/99/3PP/12656 dated 22.10.1999 and letter No.4/62/2001-3PP 1/15012 dated 05.10.2001 as per the directions issued by the Hon'ble Supreme Court in the case of Ajit Singh Janjua it was provided that in case the candidate has been promoted in excess of reserve quota in that event he would not be reverted but his promotion would be treated as adhoc and he would be granted the benefit of seniority in the promotional cadre only when he would be entitled as per his turn to be adjusted against the promotional post. Therefore he is entered at the bottom at sr. no.7.” 6. On the aforementioned basis, it has been claimed that once both Liakat Rai and Atma Singh belonging to scheduled caste category have been working, then no benefit can be given to respondent No.2 who is much junior to the petitioner only on the basis that he belongs to scheduled caste category. The petitioner has claimed that his right under Article 16(1) of the Constitution can not be snatched. The petitioner has also controverted the stand of the Board by asserting that the instructions dated 18.08.2000 which have been relied upon by the Board are not relevant because those instructions are applicable where the post is to be filled by way of promotion and Current Duty Charge is given to a person other than the category from which the promotional post is to be filled up. Whereas in the case in hand respondent No.2 is not entitled to any promotional post either CWP NO.13638 of 2008 -6- on the basis of his seniority or under the reservation policy. With regard to alternative remedy of revision under Section 42 of the Punjab Agriculture Produce Markets Act, 1961, the petitioner has asserted that the power of revision has to be exercised by the State Government on its own and the same can not be regarded as a regular remedy. The petitioner has also asserted that no promotion has been made for the last six-seven years and he has been awaiting his promotion. He has claimed that against all canons of justice all of a sudden the Current Duty Charge has been given to a person 12 years junior to him. 7. The respondent No.2 has filed his separate written statement and has taken similar stand which have been taken by the Board. He has placed reliance on a judgment of Hon’ble the Supreme Court rendered in the case of State of Punjab v. Arun Kumar Aggarwal and others 2007 (3) RSJ 434 (SC) and has submitted that it is the prerogative of the employer to decide about granting of Current Duty Charge and seniority alone can not constitute the basis for making such a decision. Separate written statement of respondent No.3 having similar stand has also been filed. 8. We have heard learned counsel for the parties and have perused the paper book with their able assistance. The question which needs determination in the instant petition is 'whether Current Duty Charge can be withdrawn from an officer belonging to promotee’s quotas and given to other officer who also belongs to the same quota in respect of direct quota post of Sub Divisional Officer (Electrical) on the ground that respondent No.2 belongs to reserved category of scheduled caste.' 9. It is conceded as a fact that the post of SDO(Electrical) against which Current Duty Charge has been given to the petitioner belongs to CWP NO.13638 of 2008 -7- direct quota and is lying vacant. Although it is disputed, whether it is reserved for a candidate belonging to scheduled castes. It also remains undisputed that petitioner is the senior most Assistant Engineer which is a feeder cadre for promotion to the post of Sub Divisional Officer (Electrical) under the rules and that he is the senior most amongst the Assistant Engineer (Electrical). He was designated as Assistant Engineer on 27.06.2002 and has been awaiting his promotion as Sub Divisional Officer. He also belongs to backward class category. Respondent No.2 joined service as a Junior Engineer in 1994 as against the date of joining by the petitioner as such on 05.01.1982. Therefore, we are of the view that the Current Duty Charge of the post of SDO(Electrical) was rightly given to the petitioner on 06.10.2006 by accepting his seniority against a direct quota post. Both the petitioners as well as respondent no.2 may not have any right to be given Current Duty Charge of a direct quota post but if legal preference is to be given then the petitioner deserves to be given Current Duty Charge being the senior most. The instructions of the Government dated 19.04.2005 also postulates the giving of Current Duty Charge of a vacant post on the basis of seniority. If seniority principle is ignored then it would result into arbitrariness because the Board could pick and choose any person from the list of eligible officers to be given Current Duty Charge. It is a settled proposition of law that if Current Duty Charge is required to be given for a longer period then the seniority principle has to be kept in view. In that regard, reliance may be placed on a Division Bench judgment of this Court rendered in the case of Shingara Chand & others v. Punjab Water Supplies and Sewerage Board 2000(2) PLR 570 and the observations made in para 7 which reads thus:- CWP NO.13638 of 2008 -8- “We have heard learned counsel for the parties. It is not in dispute that the petitioners are senior to respondents No.3 to 5 in the cadre of Junior Engineers. It is also not in dispute that at the time of giving current-duty charge of the posts of Sub Divisional Engineers to respondents No.3 to 5, the petitioners were not considered despite the fact that they are senior, in the lower cadre. Nothwithstanding this, the official respondents have made a feeble attempt to justify their action by stating that the giving of current-duty charge to junior persons cannot be equated with promotion and, therefore, the petitioners cannot seek invalidation of the impugned orders by invoking the doctrine of equality enshrined in Articles 14 and 16 of the Constitution of India. However, we have not felt persuaded to accept their stand that the giving of current-duty charge of the higher post to junior persons inconsequential. A person, who is given current-duty charge of the higher post, not only enjoys the higher status but also exercises greater powers. Therefore, it can not be said that the orders passed by the official respondents to give current-duty charge to respondents No.3 to 5 ignoring the prior claims of the petitioners do not affect them. Once may not take serious exception to the giving of current- duty charge to a junior person for a few days or weeks in order to tide over the crises situation, but, the practice of giving current-duty charge of the higher post to the juniors for months and years together cannot be legally justified or approved. We are further of the opinion that giving of current-duty charge for CWP NO.13638 of 2008 -9- a long period cannot be justified by treating it as something like giving additional charge of the higher post and in the garb of giving current-duty charge, a senior person cannot be denied his legitimate right to hold the higher post.” 10. In the present case, the current-duty charge has been given according to seniority on 06.10.2006. However, by violating the seniority principle, it was sought to be handed over to a person 12 years junior to the petitioner vide order dated 28.07.2008 (Annexure P-5). Admittedly, Current Duty Charge has continued for more than two years and the seniority principle was rightly followed. However, the seniority principle has been violated by the impugned order dated 28.07.2008 (Annexure P-5) resulting into flagrant violation of the provisions of Articles 14 and 16(1) of the Constitution. 11. The reliance of the petitioner on the judgment of Hon'ble the Supreme Court in the case of Arun Kumar Aggarwal (supra) is wholly misconceived because in that case, seniority was claimed on the basis of Current Duty Charge and the claim was rejected. It was observed that the Current Duty Charge does not confer any indefeasible right on a person to hold the post and such a person can not claim seniority by counting in service rendered as a Current Duty Charge holder. It is thus obvious that the judgment in Arun Kumar Aggarwal case has no application to the facts of the present case. 12. For the reasons aforementioned, this petition succeeds. The order dated 28.07.2008 (Annexure P-5) withdrawing Current Duty Charge from the petitioner and handing it over to respondent No.2 is hereby quashed. The Board is directed to restore the Current Duty Charge to the CWP NO.13638 of 2008 -10- petitioner who shall continue to hold the post of SDO(Electrical) till the post is filled up in accordance with the Rules. (M. M. Kumar) Judge (Rakesh Kumar Garg) Judge September 24, 2008 ashish