IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.541 of 2009 Date of decision: 1.7.2009 Risal Singh. -----Appellant Vs. The State of Haryana & others. -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MRS JUSTICE DAYA CHAUDHARY Present:- Mr. R.N. Lohan, Advocate for the appellant. ----- ORDER: 1. The appellant is aggrieved by rejection of his claim for promotion by the learned Single Judge. 2. The petitioner was employed as Patwari in the revenue department in the State of Haryana. For promotion to the post of Kanungo under the Haryana Kanungo Service (Group C) Rules, 1981, there is requirement of passing of qualifying examination. The relevant part of the said Rule laying down requirement of passing departmental examination is quoted below:- L.P.A. No.541 of 2009 “Field Kanungo (i) Graduate of a recognised University or Board (i) Matriculation or equivalent examination of recognized University or Board. (ii) Passed Kanungo examination held by the Director. (ii) Passed the Kanungo examination held by the Director.” 3. The petitioner qualified the Kanungo examination held by the Director in the year 1993 while the contesting private respondent No.4 passed the said examination in the year 1996. As per departmental instructions dated 12.4.2001, the petitioner was given promotion in the year 2001 when the post fell vacant, rejecting the claim of the contesting respondent on the ground that he passed the examination later, even though he was senior to the petitioner. The instructions were later on revised purporting to be in pursuance of judgment of this Court in Arjan Dev v. The State of Punjab and others 1997(4) RSJ 463. A show cause notice to revert the petitioner with a view to give promotion to the contesting respondent was issued. The petitioner challenged the show cause notice. 4. The learned Single Judge, inter-alia, relying on judgment of this Court in Ram Kumar Sharma v. State of Haryana 1996(6) SLR 450 which in turn refers to judgment of the Hon’ble Supreme Court in SLP (C) No.7294 of 1993 Haryana 2 L.P.A. No.541 of 2009 State Agricultural Marketing Board v. Surinder Mohan Sharma and others decided on 14.9.1994, reported in 1999 SCC (L&S) 731, dismissed the writ petition. Observations in the order of Hon’ble the Supreme Court are:- “It is obvious from Rule 12 of the rules, quoted above that the inter se seniority between Surinder Mohan Sharma and Dinesh Kumar could only be fixed on the basis of continuous length of service in the cadre of Sub-Divisional Officers subject to the applicability of any of the clauses under proviso to the said rule. The rule nowhere provides that the seniority is to be fixed on the basis of the date of acquiring the eligibility qualifications. The rule which was before the Full Bench in Ashok Kumar Sehgal’s case was entirely different than the rule in this case. The High Court became totally oblivious to Rule 12 of the Rules and fell into patent error in allowing the writ petition following the judgment in Ashok Kumar Sehgal’s case which has no relevance whatsoever to the present case. We, therefore, allow the appeal with costs and set aside the order of the High Court dated February 1, 1993 and dismiss the writ petition filed by Surinder Mohan Sharma before the High Court. We quantify the cost as Rs.11,000/- to be paid by respondent No.1 Surinder Mohan Sharma to respondent No.3 Dinesh Kumar.” The Hon’ble Supreme Court, thus, observed that continuous length of service was the basis for inter se seniority and not passing of the qualifying examination and promotion had to be given on that basis. There is no contrary rule, in the present 3 L.P.A. No.541 of 2009 case, about seniority being linked to passing of examination. This being the position, the contesting respondent continued to remain senior to the appellant irrespective of the date on which the qualifying examination was passed. On the date on which the post was to be filled up, the contesting respondent was senior to the appellant and had already passed the examination. His eligibility and seniority could not be ignored, unless the rule specifically provided the passing of eligibility qualification earlier to be the basis for giving preference in promotion. No doubt there will be hardship to the appellant who is said to have worked for eight years, the fact remains that there is only one post and the contesting respondent is senior to the appellant and was eligible on the relevant date. 5. In view of above, we do not find any ground to interfere with the view taken by the learned Single Judge. 6. The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE July 01, 2009 ( DAYA CHAUDHARY ) ashwani JUDGE 4