LPA No. 11 of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 11 of 1999 (O&M) Date of decision: November 11, 2009 Kiran Dhawan ...Appellant Versus State of Punjab and others ...Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Balram Gupta, Senior Advocate with Ms. Anamika Negi, Advocate, for the appellant. Mr. Suvir Sehgal, Additional Advocate General, Punjab, for respondents No. 1 and 2. Mr. Sandeep Singal, Advocate, for respondent No.4. ORDER 1. This appeal has been preferred against the order of learned Single Judge, dismissing writ petition of the petitioner for grant of promotion to the post of Deputy Director in the department of Social Welfare in the State of Punjab, after quashing promotion of respondents No. 4 and 5, who were allegedly junior to the petitioner. 2. The case of the appellant is that she was selected as Divisional Social Welfare Officer in the year 1980. The said department had next higher post of Child Development Project Officer (CDPO) and Assistant Director in the same scale. Another post equivalent to CDPO was that of Special Officer (Slums). The appellant was transferred to the post of CDPO in the year 1982 and a seniority list was prepared in LPA No. 11 of 1999 2 which respondents No.4 and 5 were junior to him. He raised grievance that respondent No.4 was recruited in the year 1989 i.e. later to the appellant and though respondent No.5 was recruited alongwith the appellant, he was shown junior in the seniority list. This was not accepted. Vide order dated 25.11.1992 (Annexure P/13A) her name was ordered to be placed below respondents No. 4 and 5 and accordingly promotion was given to respondent No.4 and 5 to the post of Deputy Director, without considering the appellant. The appellant was given the said promotion from a later date. He filed writ petiton against order dated 25.11.1992. 3. Main contention put forward in the writ petition was that as the appellant was senior to respondents No. 4 and 5, for the reasons mentioned above, she was entitled to be considered for the post of Deputy Director, on the date respondents No. 4 and 5 were so considered. 4. This contention was opposed by way of filing replies by Secretary to the Government, the Director Social Welfare as well as contesting respondents. It was submitted that though respondent No.5 had been selected alongwith the appellant, he had been placed above the appellant, as per recommendation of the Punjab Public Service Commission. Respondent No.4, though recruited later to Class II post, was treated senior as appointment of the appellant to Class II post was as per draft rules which were never finalised and the appellant was given appointment as Special Officer (Slums), only by way of adjustment on 12.6.1986. It was also stated that post of CDPO was not inter-changeable with that of Assistant Director. Reference has been LPA No. 11 of 1999 3 made to the Punjab Social Class II Rules, 1973, wherein only Assistant Directors are mentioned to be the members of Class II service. 5. Learned Single Judge dismissed the writ petition holding that the appellant could not claim seniority over and above respondents No. 4 and 5, as respondent No.5 was above the appellant in the recommendation made by the Punjab Public Service Commission, while respondent No.4 was recruited directly to Class II post as Assistant Director and the appellant could not claim parity with him. 6. We have heard learned counsel for the parties. 7. Learned counsel for the appellant challenges findings on the issue of seniority of the appellant over and above respondent No.5 as well as respondent No.4. 8. As regard respondent No. 5, reliance has been placed on letter dated 2.4.1993 (Annexure P/15) from Joint Director to the Secretary, Punjab Government, Social and Women Welfare Department, recommending that name of the appellant be entered at serial No.3 i.e. above respondents No. 4 and 5. 9. As regards respondent No.4, it was submitted that the appellant was given promotion to the post equivalent to Assistant Director, vide order 17.7.1987 (Annexure P/5) with effect from 17.8.1982 and as Special Officer (Slums) on 12.6.1986. The appellant, thus, being on post equivalent to Assistant Director to which respondent No.4 was appointed for the first time in the year 1989, was required to be treated senior. 10. Opposing the submissions, learned counsel for the State points out that recommendation made, vide letter dated 2.4.1993 LPA No. 11 of 1999 4 Annexure P/15, was not accepted and vide order dated 8.11.1993 (Annexure P/18), name of the appellant was directed to be placed at serial No.5. Reason for doing so was that the appellant was placed below respondent No.5 at the time of selection by the Punjab Public Service Commission. Regarding respondent No.4, it has been submitted that he was directly recruited to Class II post in the year 1989. Promotion of the appellant to Class II post vide order Annexure P/2, was not regular promotion, nor the said post was inter-changeable with the post of Assistant Director. His appointment as Special Officer (Slums) in the year 1986 was only by way of adjustment. 11. On consideration of rival contentions, we find that the claim of the appellant to be senior to respondent No.5 could not be upheld. Finding of the learned Single Judge that as per recommendation of Punjab Public Service Commission, the appellant was placed below respondent No.5 is not shown to be erroneous on the basis of any record. The said finding has, thus to be upheld. 12. As regards claim of the appellant being senior to respondent No.4, the same could not be ignored. Respondent No. 4 was admittedly recruited to Class II post only in the year 1989 while the appellant was appointed, thereto w.e.f. 1982 and was adjusted against vacant post of Social Special Officer (Slums) on 12.6.1986. Even if it is accepted that promotion of the appellant to the post of CDPO was only under draft rules and the said post was not eligible for consideration to Class I service, his promotion to the post of Special Officer (Slums) in the year 1986 could not be ignored. As per Punjab Social and Women's Welfare (Class-I) Service Rules, 1991, appointment to the post of LPA No. 11 of 1999 5 Deputy Director Social Welfare can be from Assistant Director or Special Officer (Slums). 13. Contention raised on behalf of the respondent that the appellant was only adjusted in the year 1986 to the post of Special Officer (Slums) which was equivalent to the post of Assistant Director and which was eligible for promotion to the post of Deputy Director as per Class I Rules 1991, cannot be accepted to reject his claim for counting seniority atleast from that date. His adjustment was against the vacant post and not a stop gap arrangement and continued till his promotion to the post of Deputy Director. Mere delay in passing a formal order of regular promotion could not prejudice the claim of the appellant. It is not the case of the respondent that any person senior to the appellant was entitled to the said post or that adjustment of the appellant was only a stopgap arrangement. Learned Single Judge has not considered this aspect and only reason given for rejecting claim of the appellant for seniority above respondent No.4 was that respondent No.4 was direct recruit while the appellant was promotee. Under the 1991 Rules, post of Special Officer (Slums) as well as that of Assistant Director is at par and seniority of the appellant who was appointed to the post prior to respondent No.4 could not rejected. 14. Accordingly, we are of the view that the matter is required to be re-considered by the concerned respondent. Let such exercise be done by the competent authority, in accordance with law and final decision taken within three months of the receipt of a copy of this order. It is made clear that and in case the appellant is found entitled to ante- dating of his promotion, such promotion shall not carry any financial LPA No. 11 of 1999 6 benefits. 15. The appeal is disposed of accordingly. (ADARSH KUMAR GOEL) JUDGE November 11, 2009 (GURDEV SINGH ) prem JUDGE