C.W.P. No.4167 of 1984 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.4167 of 1984 (O&M) Date of Decision:- 16.1.2008 Gian Singh Warder & ors. ....Petitioner(s) through Mr.C.L.Goyal, Advocate. vs. State of Punjab and others ....Respondent(s) through Mr.A.D.S.Jattana, Addl.A.G., Punjab for Nos.1 and 2. Mr.B.S.Jaswal, Advocate for Nos.3 to 9. *** CORAM:-HON'BLE MR.JUSTICE SURYA KANT. *** 1) Whether Reporters of the local papers may be allowed to see the judgment? 2) To be referred to the Reporters or not? 3) Whether the judgment should be reported in the Digest? *** SURYA KANT, J. (ORAL) In this civil writ petition, challenge lies to an order dated 28.6.1984 (Annexure P-6) whereby respondents No.3 to 9 have been promoted as Assistant Superintendents Jail/Welfare Officers/Probation Officers in the Prisons Department, Govt. of Punjab. Vide an application under Order 6 Rule 17 CPC, the petitioners have also sought amendment of their writ petition so as to enable them to seek quashing of the order dated 27.6.1984 (Annexure P-5) whereby they were reverted as Warders from the posts of Assistant Superintendents/Welfare Officers/Probation Officers. C.W.P. No.4167 of 1984 (O&M) -2- It may be stated at the outset that according to learned counsel for the petitioners, the grievance of petitioner No.2 (Joginder Singh) already stands fully addressed and as such, this petition qua him has been rendered infructuous. Ordered accordingly. Petitioners No.1 and 3 (in short- the petitioners) were appointed as Warders in the Prisons Department, Punjab in the year 1974 and 1973 respectively. Similarly, respondents No.3 to 9 also came to be appointed as Warders in the said Department much prior to the petitioners and were admittedly senior to the latter. Subsequently, the private respondents, on their willingness, were selected to work as Clerks in the Department as during that time, the post of Clerk used to carry higher pay than that of the Warders. It is, however, the categoric stand of the official respondents that the private respondents were appointed as Clerks on ad hoc basis and they never came to be confirmed in the said cadre. According to the official respondents, “their lien stands in the cadre of Warders only.” In the administrative hierarchy, there used to be the posts of Sub Assistant Superintendents and then Assistant Superintendents/Welfare Officers/Probation Officers. Recruitment to the aforesaid higher posts is governed by the statutory rules known as the Punjab Jail Department State Service Rules (Class III Executive) Rules, 1963 (in short- the Rules). Rule 7 thereof (relevant part only) reads as follows:- “7. Method of appointment, - Appointments to posts in the Service shall be made as under:- (1)in the case of Probation Officers, by promotion from amongst the Assistant Superintendents/Welfare Officers, C.W.P. No.4167 of 1984 (O&M) -3- Sub- Assistant Superintendent or Assistant Probation Officers having an experience of working on any of these posts for a minimum period of three years; (2)in the case of Assistant Superintendents/Welfare Officers, - (i) by direct appointment; or (ii)by transfer or deputation from any other service of the State or (iii) by promotion from amongst Sub-Assistant Superintendents and Assistant Probation Officers having an experience of working on any of these posts for a minimum period of three years : Provided that not less than 75 per cent of the posts will be filled in the manner specified in sub-clause(i) and not more than 25 per cent in the manner specified in sub- clauses(ii) and (iii) ; (3) in the case of Sub-Assistant Superintendents, - (i) by promotion from amongst the Assistant Probation Officers, Head Warders and Warders who have an experience of working on the warder staff for a minimum period of three years and who have passed the Matriculation or Higher Secondary or any other equivalent examination from a recognised university; or (ii) by promotion from amongst Clerks of the Department having an experience of working on the post of Clerk for a minimum period of five years ; (iii) by promotion from Clerks/Warders of the Department who have combined experience for a minimum period of 5 years in the Clerical and Warder line (including not less than 2 years in the Warder line). Provided that not less than 50 per cent of the posts will be filled in the manner specified in sub-clause(i) and not more than 25 % each in the manner specified in sub- clauses (ii) and (iii) C.W.P. No.4167 of 1984 (O&M) -4- The above reproduced proviso to Rule 7 (3) (iii) of the Rules, however, was struck down by this Court in the case of Joginder Singh and others vs. State of Punjab, 1982(1) SLR 750, holding that for the purpose of promotion to the next higher post, the classification between Warders and Clerks was impermissible. There also appears to be no dispute that the posts of Sub Assistant Superintendent were later on upgraded and re-designated as Assistant Superintendents/Welfare Officers/Probation Officers. In other words, the Warders as well as Clerks were made eligible for promotion to the re-designated posts of Assistant Superintendent/Welfare Officers etc. Vide an order dated 3.11.1983 (Annexure P-3), both the petitioners were promoted as Assistant Superintendent/Welfare Officer/Probation Officers purely on temporary basis. They were, however, reverted as Warders vide an order dated 27.6.1984 (Annexure P-5), the quashing of which is now sought by seeking amendment of the writ petition. On the very next day, the private respondents were promoted as Assistant Superintendents/Welfare Officers/Probation Officers purely on temporary (ad hoc) basis. The petitioners are, thus, aggrieved at their reversion as well as consequential promotion of the private respondents. The only question which arises for consideration before this Court is that between the petitioners and the private respondents, who have a preferential right of being considered for promotion to the next higher posts of Assistant Superintendents Jails/Welfare Officers ?. Learned counsel for the petitioners vehemently contends that once the private respondents opted for their appointment/adjustment as C.W.P. No.4167 of 1984 (O&M) -5- Clerks in the Ministerial Cadre and continued to hold the said posts, not only did they lose their lien as Warders but they also rendered themselves ineligible for further promotion in terms of Rule 7(3)(i) of the 1963 Rules as none of them had 3 years' experience of working as Warders on the date when the impugned order dated 28.6.1984 (Annexure P-6) was passed. On the other hand, learned State counsel as well as learned counsel for the private respondents have argued that the private respondents were directly recruited as Warders and were confirmed in the said cadre. It is contended that they were selected to perform the duties of Clerks which was a higher post at that time, purely as an arrangement made in administrative interest. There were no statutory Rules, Government instructions or administrative orders in terms whereof a Warder could be appointed, promoted or adjusted as a Clerk on regular basis. The private respondents, it is contended, continued to maintain their lien on the posts of Warders only and the same was never terminated. On this premise, it is further contended that the private respondents were rightly treated in the cadre of Warders and being senior to the petitioners, had a preferential right of promotion to the higher posts of Assistant Superintendent Jails etc. Mr.Jaswal, learned counsel for the private respondents also contends that before their adjustments as Clerks, the private respondents had worked as Warders for a period of more than three years, therefore, they possessed the requisite working experience of more than three years and were, thus, fully eligible for promotion in terms of Rule 7 (3) (i) of the Rules. I have heard learned counsel for the parties and perused the material on record. C.W.P. No.4167 of 1984 (O&M) -6- In my considered view, there is no merit in this writ petition and the same deserves to be dismissed. Admittedly, the private respondents were senior to the petitioners as Warders and had their lien in the said cadre. Though it is contended that one of the private respondents (Rajinder Kumar-respondent No.5) did not retain such lien as subsequently, he was confirmed as a Clerk; however, this does not improve the petitioners' case. Once it is not in dispute that there was no provision for appointment/adjustment of Warders on the posts of Clerks, the only inference would be that it was a case of stop-gap arrangement only and lien of none of them in their parental cadre could be unilaterally terminated unless expressly consented. The private respondents being senior, therefore, had a superior right of consideration for promotion to the higher posts of Assistant Superintendents/Welfare Officers/Probation Officers. As regard to the eligibility of the private respondents, I am of the considered view that having worked as Warders for a period of more than three years before their adjustment as Clerks, the private respondents acquired eligibility under the Rules. Besides this, they had also worked for a period of more than 5 years as Clerks before they came to be promoted vide order dated 28.6.1984. The private respondents, thus, possessed the working experience as required by Rule 7 (3) (ii) of the Rules as well. Learned counsel for the petitioners lastly contended that while reverting them, the principles of natural justice have not been complied with. The contention though appears to be attractive, however, sans any legal force. Firstly, the petitioners were promoted purely on temporary basis and,thus, had acquired no legally vested right to hold the promotional C.W.P. No.4167 of 1984 (O&M) -7- posts. Secondly, their claim having been turned down on merits, the opportunity of hearing at this belated stage would be an exercise in futility. Consequently and for the reasons afore-stated, no case to interfere with the orders, Annexures P-5 and P-6 is made out. Similarly, the application seeking amendment of the writ petition is also rendered infructuous. Dismissed. No costs. January 16, 2008 ( SURYA KANT ) poonam JUDGE