LPA No.58 of 2009 (O&M) 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. LPA No.58 of 2009 in CWP No.567 of 2004 Date of decision: 6.7.2009 Bahadur Singh ....Appellant vs. State of Punjab and others . ..Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE S.D.ANAND. --- Present: Mr.H.K.Arora, Advocate, for the appellant. Ms.Rita Kohli, Addl.Advocate General Punjab, for respondent Nos. 1 and 2. Mr.H.S.Sethi, Advocate, for respondent No.3. -- J.S.KHEHAR,J. (Oral) The appellant through the instant Letters Patent Appeal has raised a challenge to the order passed by a learned Single Judge of this court dated 5.11.2008, whereby CWP No.567 of 2004, was disposed of. The controversy which came up for consideration in the said writ petition pertains to promotion of Lecturers to the cadre of Senior Lecturers. It is not a matter of dispute, that the inter se seniority in the cadre of Lecturers, as was determined by the State Government in its order dated 23.11.2001 was duly circulated. The position of seniority indicated is not a subject matter of challenge before us. The aforesaid seniority list depicts nine Senior Lecturers in the following order of seniority:- 1. Sh.Piara Singh. 2 . Smt.Gurpreet Kaur 3. Sh.Sarabmohan Singh LPA No.58 of 2009 (O&M) 2 4. Sh.Harbans Lal 5. Sh.Bahadur Singh 6. Sh.Kamaljit Singh 7. Sh.Harwinder Singh 8. Smt.Vibha Sharma 9. Sh.Bahadur Singh “. Out of the aforesaid Lecturers depicted in the seniority list, Piara Singh and Gurpreet Kaur placed at Serial Nos. 1 and 2 respectively of the seniority list, had been promoted well before the claim of the appellant arose for promotion to the cadre of Senior Lecturers. It is also not a matter of dispute, that the cadre of Senior Lecturers comprised of four posts. In a cadre of less than five posts, the earlier policy instructions which came to be reiterated again on 25.6.2004, are applicable. As per the aforesaid policy instructions, in a cadre of less than five posts, the first point is unreserved, whereas, the second point is to be filled up by reservation from amongst the Scheduled Caste candidates. Consequent upon the promotion of Piara Singh and Gurpreet Kaur, referred to hereinabove, points at Serial Nos. 1 and 2 in the reservation roster stood exhausted. Although the point at Serial No.2 in the roster was to be filled by reservation, Gurpreet Kaur came to be promoted as such despite the fact, that she belonged to the general category. Accordingly, the pont at serial No.2 to be filled by way of reservation was carried to the next point, namely, to the point at serial No.3. The claim of the appellant, was considered for pormotion while filling up the third, and the other roster points which had became available in the meantime. At that juncture, the appellant Bahadur Singh was promoted by way of reservation allowing him the third roster point. Since LPA No.58 of 2009 (O&M) 3 the aforesaid promotion of Bahadur Singh effected the rights of Vibha Sharma who claimed superiority for purposes of promotion over and above Bahadur Singh, the aforesaid Vibha Sharma approached this Court by filing CWP No.567 of 2004. The aforesaid writ petition was allowed by a learned Single Judge of this Court on 5.11.2008. Thereafter the State Government issued an order dated 18.2.2009, implementing the determination rendered by this Court in CWP No.567 of 2004. In the course of the instant determination, the State Government ordered as under :- “ In compliance of the order dated 5.11.2008 passed by the Hon'ble Punjab and Haryana High Court in CWP No.567 of 2004 titled as Vibha Sharma versus State of Punjab passed in the order issued vide Government letter No.2/231/2003-1 TE-2/2637-40 dated 23.12.2003 on the recommendation made by the committee in the meeting held by the Departmental Promotion Committee on 25.11.2003 and in pursuance of the order passed by the Government vide letter No.2/167/07-1 TE- 2/449-451 dated 6.2.2009, the following orders are passed:- 1. Shri Bahadur Singh, Lecturer, Pharmacy (S.C.) who was promoted as Senior Lecturer (Pharmacy) in the pay scale of Rs.10025-15100 against slot No.3 is reverted to the post of Lecturer, Pharmacy. 2. Shri Kamaljit Singh, Lectuer, Pharmacy is promoted as Senior Lectuerr (Pharmacy) in the pay scale of Rs.10025-15100 against slot No.3 (Reserve for the Category of Scheduled Castes). 3. Shri Bahadur Singh, Lecturer Pharmacy (General Category) is promoted as Senior Lecturer (Pharmacy) in the pay scale of Rs.10025-15100 against slot No.4. 4. Smt.Vibha Sharma, Lecturer Pharmacy (General Category) is promoted as Senior Lecturer (Pharmacy) in the pay scale of Rs.10025-15100 against slot No.5 w.e.f. 23.12.2003 and she will be given all the LPA No.58 of 2009 (O&M) 4 consequential benefits from the said date. She is posted at the Government Polytechnic College, Bathinda against the vacant post of Senior Lecturer (Pharmacy). Dated, Chandigarh 18.2.2009 xx”. Learned counsel for the appellant while raising a challenge to the decision rendered by this Court in CWP No.567 of 2004, also assails the implementation thereof by the order, extracted hereinabove. In order to determine the veracity of the challenge raised by the appellant Bahadur Singh, the first question to be determined is, whether Bahadur Singh i.e., the appellant herein who figured at Serial No.9 in the seniority list, could have been promoted at roster point No.3, so as to claim reservation against the aforesaid roster point. In our considered view, at the time of filling up roster point No.3 the authorities considered the claim of Kamaljit Singh another candidate belonging to the Scheduled Caste category, who was placed higher in the seniority list viz-a-viz the appellant herein, namely, Bahadur Singh. The aforesaid Kamaljit Singh was placed at serial No.6 in the seniority list. During the course of consideration the aforesaid Kamaljit Singh superseded Bahadur Singh a general category candidate (not the appellant herein) who has been placed at serial No.5 in the seniority list. So as to occupy the third roster point by way of reservation, the claim of Bahadur Singh i.e., the appellant herein, was also considered under the statutory rules, namely, the Department of Technical Education and Industrial Training (Technical Education Wing),Group-A, Service Rules, 2001 (hereinafter referred to as “the 2001 Rules”) which were in force. The aforesaid rules were also taken into consideration while allowing Kamaljit Singh, aforesaid, promotion against roster point No.3. It LPA No.58 of 2009 (O&M) 5 is not a matter of dispute that Kamaljit Singh still occupies the aforesaid third roster point and holds the post of Senior Lecturer. Thus viewed, the fourth post of Senior Lecturer, as well as, any resultant vacancies arising thereafter, would have to be filled up from amongst the general category candidates, as the solitary reserved point had been filled up, and was occupied. Undoubtedly the candidates belonging to the Scheduled Castes are also eligible, to be considered for promotion against unreserved points. After filling up the third roster point, during the course of consideration of filling up of other posts of Senior Lecturers the respondents in the first instance, promoted Bahadur Singh a general category candidate (serial No.5 in the seniority list). Harwinder Singh whose name figured at serial No.7 in the seniority list, did not make the benchmark, and therefore, was overlooked for promotion. Vibha Sharma the petitioner in CWP No.567 of 2004, has also been allowed promotion to an available vacancy in the cadre of Senior Lecturers by unsettling Bahadur Singh, the appellant herein (who figures at serial No.9 in the seniority list). The instant action of the respondents, in promoting Vibha Sharma to the post of Senior Lecturer was taken as a measure of implementation of the order passed by this Court in CWP No.567 of 2004. This was done without considering the claim of the appellant herein. The non-consideration of the claim of the appellant while implementing the order passed in CWP No.567 of 2004, is subject matter of challenge at the hands of the appellant. We have perused the proceedings of the Departmental Promotion Committee available on the record of this case as Annexure-R3 LPA No.58 of 2009 (O&M) 6 (appended to the written statement filed on behalf of the official respondents). At the juncture when the claim of the appellant herein, was considered against the reserved category post (against which, by virtue of the order extracted hereinabove), Kamaljit Singh (whose name figured at serial No.6 in the seniority list) on account of his higher merit/seniority, ousted the claim of the appellant herein, in the matter of promotion against the post of Senior Lecturer. The appellant herein has not claimed promotion as against the point granted to Bahadur Singh (Serial No.5 in the seniority list) a general category candidate. The claim of the appellant herein is to the point at which Vibha Sharma was promoted as Senior Lecturer. The proceedings of the Departmental Promotion Committee, do not reveal that the claim of the appellant herein, was considered at the time of consideration of the claim of Vibha Sharma. Since the post of Senior Lecturer is a selection post, a person with superior merit can claim a prior right, over and above a senior with lower merit. No determination emerges on the issue of comparative merit in the process of selection between Vibha Sharma and the appellant herein-Bahadur Singh. Thus viewed, we are satisfied, that merely because CWP No.567 of 2004, was allowed by this Court vide order dated 5.11.2008, it was not open to the authorities to pass an order promoting Vibha Sharma to the post of Senior Lecturer without considering the claim of Bahadur Singh for the said post. In the aforesaid view of the matter, while finding no fault whatsoever with the determination rendered by this Court in disposing of CWP No.567 of 2004, we hereby set aside the order dated 18.2.2009 which was passed by the State Government as a matter of implementation of this Court's order dated 5.11.2008, because the same does not constitute a valid implementation of the order LPA No.58 of 2009 (O&M) 7 passed by this Court in CWP No.567 of 2004. We leave it open to the State Government to re-examine the claim of the appellant herein viz-a-viz Vibha Sharma in consonance with the 2001 Rules. Having set aside the order dated 18.2.2009 passed by the State Government based on the judgment rendered in CWP No.567 of 2004, we were, in the first instance, of the view, that it would be appropriate to restore status quo ante, as it prevailed at the time of the decision of CWP No.567 of 2004 i.e., on 5.11.2008, as the appellant herein-Bahadur Singh had been discharging the duties of the post of Senior Lecturer for a number of years prior thereto. However, learned State Counsel, on instructions from Mr. Sham Goel, Deputy Director, Department of Technical Education and Industrial Training,Punjab, states that, a meeting of the Departmental Promotion Committee, shall be convened without any delay, and the matter of promotion shall be finalised within one month from today. Accordingly, so as to enable the State Government to give complete effect to the order passed by this Court in CWP No.567 of 2004 in consonance with the 2001 Rules. We,therefore, consider that it would be just and appropriate, to allow status quo to be maintained till 5.8.2009, unless an order is passed in furtherance of our directions prior thereto. The order passed in furtherance of our directions shall be given effect to forthwith. Disposed of in the aforesaid terms. ( J.S.Khehar) Judge (S.D.Anand) Judge July 6, 2009 rk