CWP No. 12864 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 12864 of 2010 Date of decision : 18.07.2011 Partap Singh ......Petitioner versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. S.S. Siao, Advocate for the petitioner. Mr. O.P. Dabla, D.A.G. Punjab **** RITU BAHRI, J. (Oral) The petitioner is seeking quashing of order dated 25.05.2010 (Annexure P-17) passed by the Secretary, Co-operative Societies, Punjab, Chandigarh- respondent No. 2 ( for brevity 'respondent-society') withdrawing the seniority given to the petitioner w.e.f 08.12.1983 as Clerk. The petitioner is seeking seniority as a clerk over and above Janak Singh- respondent No. 4 who was appointed as a clerk by direct recruitment in the year 1987. The petitioner was recruited as Peon in the respondent-society on 01.09.1978. He was matriculate in 2nd divisional and knowing Punjabi typewriting. As per instructions (Annexure P4), there was a provision for filling up 10% of class III posts by promotion from amongst Class IV employees. The rule governing promotion from Class IV to Class III employees reads as under:- “10. Appointment to the posts in the service shall be made:- xxx xxx xxx xxx CWP No. 12864 of 2010 -2- (f) In the case of Clerks:- (i) by promotion from amongst Class IV employees in cooperative Audit Department of Punjab Government who are matriculate of a recognized university or institution; Provided they qualify the prescribed test within probationary period. (ii) xxx xxx xxx xxx (iii) by direct recruitment from amongst persons who have qualified the prescribed test. (2) xxx xxx xxx xxx (3) When any vacancy occurs or is about to occur in the service ratio of recruitment by direct appointment and by promotion to the posts mentioned in clause (d) and (e) shall be 1:2 respectively and the ratio of recruitment by direct appointment and by promotion to the posts mentioned in clause (f) shall be by 20:1 respectively”. As per instruction dated 24.08.1983 (P-4), the following conditions which are relevant for promotion read as under:- “(i) There should be a provision for filling up 10% of Class III posts by promotion from amongst Class IV employees, who possess a minimum educational qualification of matriculation (with Punjabi) and have a minimum of 5 years experience as such; (ii) There should be a provision for a qualifying test in Punjabi type- writing which should be equal to the one prescribed by the Subordinate Services selection Board for such posts and it should be made essential to pass the test before a Class IV employee is considered eligible for promotion. The test may be held by the appointing authority or any such authority to whom the powers for doing so are delegated by the appointing authority”. The grievance of the petitioner is that he made a number of CWP No. 12864 of 2010 -3- representations regarding his promotion as he was fully eligible for promotion being knowing English and Punjabi typewriting. Ultimately, for the first time, the name of the petitioner was recommended for consideration for promotion as a Clerk in response to circular letter dated 16.01.1989, issued by respondent No. 3 in which the desirous applicants were required to appear in the Punjabi Typewriting test to be held on 07.02.1989 (P-6). The petitioner passed the Punjabi typewriting test in the first attempt and as such, he was promoted as Clerk, vide order dated 23.02.1989 (P-7) and was posted in the Head Office. In compliance of directions of the Government made in order Annexure P-13, the case of the petitioner was considered by respondent No. 3, vide order dated 24.04.1996 (Annexure P-14), promoted the petitioner as Clerk w.e.f 08.12.1983 and was granted benefit of seniority from the same date. After lapse of more than 9 years, respondent No. 4 who was appointed as Clerk in the Cooperative Audit Department on 24.01.1987 by direct recruitment made representation dated 24.08.2005 and 16.11.2005 stating there that the petitioner had passed the Punjabi typewriting test on 07.02.1989 much later after the appointment of respondent No. 4 and as such, the petitioner could be shown senior to the respondent. However, these representations were rejected by respondent No. 3. Thereafter, respondent filed appeal before respondent No. 2 after lapse of four years on the ground that his representations were rejected and that he was senior to the petitioner as he was appointed as Clerk in the year 1987 whereas the petitioner had passed the necessary Punjabi typewriting test later on 07.02.1989 and yet the petitioner in the seniority list has been shown senior to him (P-15). The petitioner had sought some information under R.T.I. As per CWP No. 12864 of 2010 -4- information given by Public Information Officer, it was stated that as per record available in the office, no Punjabi test has been conducted by the office from the year 1981 to 1988 for the promotion from the post of peon to clerk. On 07.02.1989, one type test of class-IV employees was held. As per reply filed by Ajay Tyagi, Chief Auditor of respondent- society. Sh. Kirpal Singh and Sh. Santokh Singh were senior to the petitioner. Sh. Kirpal Singh was promoted as Clerk on 10.07.1981 when quota was 5%. The next post came into existence on 15.04.1987 when quota was 10% and Sh. Santokh Singh who was no doubt not matriculate earlier but had passed the matriculation examination in 1985, was senior to the petitioner was promoted as Clerk. Later on he was given retrospective promotion with effect from 1983. Respondent No. 4-Janak Singh was appointed as a clerk by direct recruit in the year 1987. The petitioner has been promoted as Clerk in the year 1989. So, no person junior to the petitioner has been promoted in the cadre of clerks prior to his promotion in the year 1989. While deciding the appeal of the petitioner, respondent No. 2 decided that the promotion date of the petitioner should be 1989 instead of 1983 and declared the respondent No. 4-Janak Singh senior to the petitioner. As per Rule 12 of the Punjab Co-operative Audit Department (Ministerial) Class III Service Rules, 1972 (for short 'the Rules'), there is no infirmity in the impugned order dated 25.05.2010 (Annexure P-17). Heard learned counsel for the parties. The petitioner was a class IV employee and was rightly promoted to the post of Clerk after clearing the Punjabi type test in the year 1989, vide order dated 23.02.1989 (P-7). As per instructions dated 24.08.1983 (P-4), condition was CWP No. 12864 of 2010 -5- made that a Class IV employee has to pass a type test for being eligible for promotion. However, no Punjabi test was conducted by the office from the year 1981 to 1988 for promoting Peons to the post of clerk. On 07.02.1989, one type test of class-IV employees was held, in which the petitioner participated and thereafter, he was promoted as clerk. Rule 12 of the Rules envisages as under:- “12. The seniority interse of the members of the Service in each cadere shall be determined on the basis of length of their continuous service on a post in that cadre of service”. As per Rule 12 of the Rules, the seniority in the cadre of Clerks is to be determined on the basis of continuous service on the post. The petitioner was promoted as Clerk on 23.02.1989. For all intents and purposes, the petitioner is junior to respondent No. 4 as per Rule 12 of the Rules which govern the fixation of seniority. The petitioner became member of Class III cadre on his promotion on 23.02.1989. Respondent No. 4 had joined the department as a direct recruitee Clerk in the year 1987. The petitioner was not borne on the cadre of Clerk before 23.02.1989, therefore, the benefit of seniority given to him w.e.f 08.12.1993 has been rightly withdrawn. The petitioner was granted promotion as a Clerk w.e.f 08.12.1983, vide order dated 24.04.1996 (Annexure P-14) on the ground that the 10th point which became available after 17.10.1983 was to be filled up by Class IV employee. On a representation made by one Janak Raj-respondent No. 4, this order has been set aside, vide order dated 25.05.2010 (Annexue P-17). No ground is made out to interfere in the order dated 25.05.2010 (Annexue P-17). Accordingly, the present writ petition does not merit admission CWP No. 12864 of 2010 -6- and the same is hereby dismissed. July 18, 2011 (RITU BAHRI) G.Arora JUDGE