CWP No. 6820 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 6820 of 2009 Date of decision 5.8.2009 Jagdish Chand ... Petitioner Versus State of Haryana and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Inder Pal Goyat ,Advocate for the petitioner Ms.Ritu Bahri, DAG Hy. for the State 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. Challenge in this petition filed under Article 226 of the Constitution is to the constitutional validity of sub rule 10 of Rule 9 of the Haryana Forensic Science (Group 'C' Scientific Staff) Service Rules, 1979, as amended in 1995 (for brevity 'the Rules')on the principal ground that it fails to provide any fixed quota for filling up the post of Scientific Assistant (Biology). A further prayer has also been made for quashing advertisement dated 7.12.2007 (P5) inviting applications for six posts of Scientific Assistants (Biology) in the Forensic Science Laboratory, Madhuban, which are apparently sought to be filled up by direct recruitment. Another direction has been sought to respondent no.2- Director General of Police, Haryana to promote the petitioner to the post of Scientific Assistant on the premise that he is eligible for appointment in all respects. 2. The facts are not in dispute. The petitioner had joined as CWP No. 6820 of 2009 2 Laboratory Assistant (Instrument) on 26.5.2003 (P.1) in the Forensic Science Laboratory, Madhuban. The service conditions of the petitioner are governed by the Rules. According to sub rule 10 of Rule 9 of the Rules, three modes of appointment to the further higher post of Scientific Assistant (Biology) have been provided. 3. The petitioner has claimed that he has qualification of B.Sc. with first division with over 70% marks and is also 1st division in the subject of Zoology and Botany. He also claimed that he has six years experience of working on the post of Lab Assistant. According to the petitioner he fulfill the qualification for appointment by a mode other than by direct recruitment. However, his grievance is that no quota for various sources viz. direct recruitment, promotion or by transfer as envisaged by sub rule 10 of Rule 9 of the Rules has been laid down which results in arbitrariness and respondent no.2 is clothed with unbridled power to pick up any quota. 4. The stand taken in the written statement is that six posts of Scientific Assistant (Biology) have been advertised by the Haryana Staff Selection Commission (for brevity ' the HSSC'). The essential qualifications for direct recruitment for the post are M.Sc. 2nd division in any one of the subjects i.e. Forensic Science, Botany, Zoology, Human Biology, Bio Chemistry, Anthropology (Physical) or its equivalent degree from a recognized University or B.Sc. At least 2nd division medical group with atleast 2nd division in Zoology or Botany or Anthropology (Physical) or Bio Chemistry with two years experience in a Scientific Laboratory. It has been pointed out that the petitioner was neither M.Sc. nor B.Sc. at the time of advertisement. It has further been pointed out that no working Laboratory Assistant (Biology) was found eligible for promotion to the post of CWP No. 6820 of 2009 3 Scientific Assistant (Biology) and the competent authority decided to initiate the process to fill up the post by picking up the mode of direct recruitment as is evident from office memo No. 12253/ GSL dated 17.11.2006. 5. The petitioner had made a representation on 15.9.2008 asserting that he had qualified B.Sc. (Biology) examination from Guru Ghasidas University, Bilaspur, Chattisgarh through distance mode in the year 2008. He was accordingly asked to furnish proof of obtaining permission from the department to continue his study of B.Sc. (Biology) which could not be answered by him. However, he claimed that his case be considered for promotion under the rules. Respondents have also pointed out that he does not fulfill the qualifications envisaged by the Rules as he was not eligible at the time when requisition for filling up of posts was initiated and also at the time when the posts were advertised. Even his degree has been doubted and the veracity of the same is being checked. In that regard correspondence has been placed on record (R.6). 6. In para 3 of the written statement, the respondents have further pointed out that service record of the petitioner during the period of about six years has not been satisfactory as has been claimed by him. The following table has been produced depicting his service record: S.No. Nature of punishment awarded Memo No. and date i) Two days leave without pay for willful absence from 16.11.2004 to 17.11.2004 Order No. 18617/FSL(H) dated 6.12.2004. ii) Warned to be more careful in future on account of attending the office late at various occasions Office endst. No. 11284- 86/FSL(H) dated 19.10.2005 iii) Advised to remain punctual in future on account of found absent from duty Vide this office Advice No. 12134-35/A1 dated 17.9.2007 CWP No. 6820 of 2009 4 S.No. Nature of punishment awarded Memo No. and date (iv) Warned to be careful in future and be punctual in reaching office. No. 13146-48 /A1 dated 9.10.2007 v) Warned to be careful in future for disobeying the orders of seniors and abruptly refusal to prepare monthly statistics No. 11734 Steno dated 18.7.2008 7. Having heard the learned counsel and persuing the record we are of the view that the writ petition does not merit admission and is thus liable to be dismissed. To put the controversy in its proper perspective a perusal of sub-rule 10 of Rule 9 would be necessary which reads thus: “ 9. Method of recruitment : (1)to (9) xx xx xx xx (10) in the case of Scientific Assistant (Biology)- i) by promotion from amongst Laboratory Assistants; or ii) by direct recruitment ; or iii) by transfer or deputation of an official already in service of any State Government or Government of India.” 8. According to Rule 7 of the rules, the qualifications as per column 'C' of appendix 'B' to the rules in case of direct recruitment have been prescribed. According to column 3 the qualification for a person to be appointed otherwise than by direct recruitment have been provided. Appendix 'B' is set out hereunder: 3. Scientific Assistant Biology M.Sc. In Zoology, Biology, Botany, or Biochemistry Anthropology (Physical) or equivalent or i) B.Sc. 32nd class in Zoology, Botany and Chemistry group or B.Sc. (Hons) in Zoology, or Anthropology (Physical) or Microbiology or Biochemistry. ii) Two years experience in a Scientific Laboratory. A perusal of sub-rule 10 of Rule 9 postulates three modes of CWP No. 6820 of 2009 5 recruitment and for filling up the post of Scientific Assistant (Biology), namely, by (i) promotion from amongst Laboratory Assistant (Biology); (ii) by direct recruitment; and (iii) by transfer or deputation of an official already in service of any State Government or Government of India. Similar provision has been made for recruitment to the post of Scientific Assistant in other disciplines. 9. The working and operation of the Rules show that competent authority has to decide the method of recruitment from any three modes laid down in the Rules. Such a decision of the competent authority has to be informed by reason which is open to judicial review. If the working of the Rules is examined in the light of facts and circumstances of this case then it would show that there is neither any arbitrariness nor any injustice caused to the petitioner. The process of filling up six posts had started on 17.11.2006 as is clear from the perusal of para 3 of the preliminary submissions of the written statement. Thereafter advertisement was issued on 7.12.2007 by the HSSC. The petitioner was not eligible even to be considered for promotion as he lacked qualification of B.Sc. in 2nd Division which he acquired only in the year 2008. Therefore, the department on the premise that no working Lab Assistant (Biology) was eligible for promotion to the post of Scientific Assistant (Biology) initiated the process to fill up the post by adopting the mode of direct recruitment. Therefore we do not find any legal infirmity in the exercise of discretion by the Director General of Police- respondent no. 2 in picking up the direct recruitment as a source of appointment which is authorized by sub rule 10 of Rule 9 of the rules. 10. Apart from the fact that the petitioner was not eligible on the date of initiation of process of the advertisement, we are of the view that no CWP No. 6820 of 2009 6 fault can be found in carving out various sources of recruitment and granting discretion to the competent authority to pick up any one of the source which is aimed at avoiding any situation like the one in hand. The work of the department cannot be paralyzed and it cannot keep on awaiting the incumbent of the feeder cadre to attain eligibility for promotion. Therefore, in the facts and circumstances of this case it is not possible for us to conclude that the Rule had caused any prejudice to the rights of the petitioner. 11. In so far as constitutional validity of the Rules is concerned, no arguments have been addressed by the learned counsel for the petitioner except repeatedly urging that the rule is arbitrary in the absence of any quota for promotion for the feeder cadre. Therefore, it is not possible to record any finding to the constitutional validity of the Rules. In the present era appointment by the method other than by promotion is also one of the permissible mode and it cannot be claimed by the petitioner that quota must be fixed for promotees. The State Government has already framed Haryana Civil Services (Assured Career Progression) Rules, 1998, for its employees and in case a person is not promoted he can be granted the Assured Career Progression Scale in order to break stagnation. Therefore, the requirement of the judgements of Hon'ble the Supreme Court in the case of Dr. Mrs. O.Z.Hussain v. Union of India, AIR 1990 SC 311 and in the case of Council of Scientific and Industrial Research v. K.G.S. Bhatt, AIR 1989 SC 1972, stand fully satisfied. In the aforesaid judgements, Hon'ble the Supreme Court has laid down that channel of promotion have to be provided to break stagnation. The petitioner is merely six years old in the department and cannot be heard to say that he is stagnating especially when CWP No. 6820 of 2009 7 he was not qualified on the date when decision for filling up the post by way of direct recruitment was taken. The decision to fill up the post by direct recruit is just and fair. 12. For the reasons afore-mentioned this petition fails and the same is dismissed. (M.M. Kumar) Judge (Jaswant Singh) 5.8.2009 Judge okg