CWP No.16707 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.16707 of 1994 Date of decision : 24-08-2010 Faqir Singh .... Petitioner VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. T.S. Dhindsa, Advocate, for Mr. Vivek Aggarwal, Advocate, for the petitioner. Mr. Salil Sagar, Addl. AG, Punjab, with Ms. Ambika Luthra, AAG, Punjab, for the respondent – State. Mr. Puneet Gupta, Advocate, for respondent No.3. KANWALJIT SINGH AHLUWALIA, J. (Oral) Petitioner and respondent No.3, both belong to a category reserved for Scheduled Castes employees. Petitioner was appointed as a Steno-typist on 17.10.1978 in the office of Financial Commissioner (Revenue) Secretariat, Punjab, Chandigarh. In September 1985, he was promoted as Junior Scale Stenographer. In December 1990, he was promoted as Senior Scale Stenographer. Respondent No.3 joined office of the Commissioner Jalandhar CWP No.16707 of 1994 -2- Division, Jalandhar as a steno typist on 16.03.1984 and was promoted as a Sr. Scale Stenographer on 11.09.1991. Petitioner claims that since he was promoted as a Senior Scale Stenographer in December 1990 before the appointment of respondent No.3, on this post and he being senior ought to have been promoted as Personal Assistant, which is next promotional post, before respondent No.3 and on this premise, he assailed the promotion of respondent No.3 to the post of Personal Assistant which was granted by order (Annexure P-6) on 28.09.1994. To appreciate the prayer made in the present petition a quick glance of the rules called the Punjab Financial Commissioners' Secretariat (Class-III) Service Rules is necessary. For the purposes of writ petition, it will be suffice to say that Rule 8 and 9 of the said Rules provide method of recruitment and qualifications required for appointment to various posts including the posts of Personal Assistant and Senior Scale Stenographer. The method of recruitment by direct appointment, promotion, on transfer etc. is given in the manner in Appendix 'C' to these rules. The relevant table from Appendix 'C' is necessary to be reproduced hereunder:- S. No. Designation of post Method of recruitment by Qualifications and experience for appointment by Direct appoint ment Promo tion Tran sfer Direct recruitmen t Promotion Transfer 1 2 3 4 5 6 7 8 1 Superintendent Grade-II xx xx xx xx xx xx 2 Assistant xx xx xx xx xx xx CWP No.16707 of 1994 -3- S. No. Designation of post Method of recruitment by Qualifications and experience for appointment by 3 Personal Assistant --- By promot ion --- --- From amongst the Sr. Scale Stenographe rs who have an experience of working as such for a minimum period of 5 years. --- 4 Senior Scale Stenographer By direct recruitm ent By promot ion By trans fer From amongst the persons who are graduates of a recognised University or its equivalent and who have qualified in a competitive test in Stenograph y held by the Board. From amongst the Jr. Scale Stenographe rs who have an experience of working as such for a minimum period of one year and who have qualified in the departmental test in stenography held by the appointing authority. From amongst the Sr. Scale Stenographer s working in other Deptts. Of Pb. Govt. Who are Graduates of a recognized University or its equivalent and have an experience of working as such for a minimum period of one Year in a Govt. Deptt. And have qualified in a competitive test in Stenography held by the appointing authority. It is not disputed that the petitioner was appointed as Senior Scale Stenographer in December 1990 whereas respondent No.3 was appointed in the cadre of Financial Commissioner Secretariat as such on 11.09.1991. A bare look suggests that petitioner is senior to respondent No.3. Then as to why respondent No.3 was promoted as Personal Assistant earlier to the petitioner is required to be examined in context of the table which has been culled out above from Appendix 'C'. Respondent No.3 before joining the Financial Commissioner Secretariat was employed in the office of CWP No.16707 of 1994 -4- Commissioner, Jalandhar Division, Jalandhar from where he was brought on the cadre of Financial Commissioner Secretariat as Senior Scale Stenographer on 29.08.1991. For bringing the person on cadre of Financial Commissioner Secretariat on transfer, there were three requirements:- a) He should be graduate from a recognized University. b) He should have experience of five years service as Senior Scale Stenographer. c) He should have passed the competitive test in stenography. Respondent No.3 fulfilled all these three requirements. For promotion to the post of Personal Assistant, Senior Scale Stenographers working in the office of Financial Commissioner Secretariat constituted feeder cadre. The only requirement for the Senior Scale Stenographer to become eligible was that they should have experience of working as Senior Scale Stenographer for a minimum period of five years. Impugned order (Annexure P-6) was issued on 28.09.1994. At first glance, an inference can be drawn that on that day, both petitioner and respondent No.3 were not having five years' experience as Senior Scale Stenographer. A deep probe will reveal that respondent No.3 was also having experience to his credit as Senior Scale Stenographer in the office of Commissioner, Jalandhar. Those who are to be brought to the Secretariat of Punjab Financial Commissioner by way of transfer were required to have one year's experience as Senior Scale Stenographer. Thus on the CWP No.16707 of 1994 -5- appointed day, respondent No.3 was having five years' experience as Senior Scale Stenographer but whereas petitioner was lacking five years requisite experience on the day when promotion of respondent No.3 was ordered. To assail promotion of the petitioner, Mr. T.S. Dhindsa, Advocate appearing for the petitioner has made following two submissions:- i) That the experience acquired by respondent No.3 in the office of Commissioner, Jalandhar cannot be counted towards five years' experience. The experience which respondent No.3 was to have, is to commence from the day when he was brought in the office of Punjab Financial Commissioner Secretariat. An ancillary argument has been further raised to say that respondent No.3 passed the qualifying test of Senior Scale Stenographer in April 1991. Therefore, five years' experience is also to be reckoned from the day he passed the examination of Senior Scale Stenographer. ii) That even if for convenience, it is assumed that respondent No.3 had five years' experience then also in view of the instructions issued by the Government (Annexure R-1) on subsequent promotion, petitioner is to be considered senior to respondent No.3 in cadre of Personal Assistant as he will bring along seniority from the feeder cadre. Relevant portion of instructions reads as under:- "3. In the event of any junior person becoming eligible for promotion to a higher post by virtue of his past experience on adhoc service, superseding a senior, the promotion of such junior person should be done on adhoc basis till such time his senior attains the prescribed years of experience to avoid any supersession. Where, however, the Departmental Service Rules, provide that the experience on CWP No.16707 of 1994 -6- a regular post only shall be counted, the Service Rules should be amended as indicated above." It is submitted in view of above instructions that petitioner will become senior on promotion as Personal Assistant than respondent No.3 as he will carry along his seniority. It is submitted that once from the feeder cadre petitioner and respondent No.3 have been promoted, on promotion they will carry forward the seniority and consequent thereof, petitioner is to be considered senior than respondent No.3. Sh. Salil Sagar, Addl. AG, Punjab assisted by Ms. Ambika Luthra, AAG, Punjab and Mr. Puneet Gupta, Advocate for respondent No.3 have stated that instructions (Annexure R-1) only apply to those employees who had ad hoc service to their credit but are not applicable to the facts of this case. I have given my thoughtful consideration to the rival contentions advanced before me. Admittedly, on 28.09.1994 an impugned order (Annexure P-6) was passed. Petitioner was not having five years' experience as Senior Scale Stenographer whereas respondent No.3 possessed this experience. Passing of stenography test is an eligibility condition prescribed for coming to the cadre of Punjab Financial Commissioners' Secretariat (Class-III) Service. Therefore, experience of the petitioner in the office of Divisional Commissioner, Jalandhar cannot be ignored. For those who come on transfer to the office of Financial Commissioner, condition prescribed is that they should have been working as Senior Scale Stenographer. Therefore, the rules make no distinction between the experience as a CWP No.16707 of 1994 -7- Senior Scale Stenographer at the office of Financial Commissioner or in the office of Divisional Commissioner. Rules nowhere prescribe that this experience should only be in the office of Financial Commissioner. Once that is so, respondent No.3 on the date of promotion was eligible and qualified for promotion. For promotion to the post of Personal Assistant, only requirement is five years' minimum experience as Senior Scale Stenographer which petitioner was not having. Thus, no fault can be found with the promotion of respondent No.3. The second argument advanced is also to be rejected as at the time when respondent No.3 was promoted as a Personal Assistant, petitioner was not eligible to be promoted as such. Therefore instructions are not applicable especially when they envisage case of ad hoc employees only. As a result of above discussion, there is no merit in the present petition and the same is hereby dismissed, with no order as to costs. (KANWALJIT SINGH AHLUWALIA) 24-08-2010 JUDGE manju