Civil Writ Petition No. 11928 of 1991 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 11928 of 1991 Date of decision : 10.08.2011 Paul Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. A.P. Kaushal, Advocate for Mr. R.K.S. Brar, Advocate for the petitioners. Ms. Ambika Luthra, AAG, Punjab for the State. Mr. Vikas Singh, Advocate for respondent No. 4. RANJIT SINGH J. Despite grant of opportunity, no meaningful assistance has been provided by the counsel for the petitioner. However, still I myself gone through the petition and have gone ahead to decide the same, as the matter has been pending since 1991. The petitioner, who was working as Clerk with Marketing Committee, Dhilwan has filed this writ petition, praying for direction for consideration of his promotion to the post of Mandi Supervisor and for restraining the respondents from promoting respondent No. 4 through resolution Annexure P-5. The petitioner had joined as Clerk with respondent No. 3 in January, 1984. As per the petitioner, in the very beginning, cadre of Clerk and Auction Recorder is considered to be one and their Civil Writ Petition No. 11928 of 1991 inter-se seniority was determined on the basis of length of service. Respondent-Market Committee had also prepared the seniority list in the year 1986. Copy of which is annexed as Annexure P-1. The petitioner belongs to reserve category of Scheduled Castes. Next promotion to the post of Clerk is Mandi Supervisor-cum-Fee Collector. As per the petitioner, there were four posts of Mandi Supervisor-cum-Fee Collector. One post out of these was reserved for Scheduled Castes, however, all the four posts were given to the General category candidates as no Scheduled Castes candidate was available in the cadre of Auction Recorder or Clerk. Subsequently, Marketing Board started the policy of transferring the Auction Recorder/Clerk and Mandi Supervisor from one Market Committee to another. One Sh. Mittar Mann Singh, Mandi Supervisor-cum-Fee Clerk was transferred from office of respondent No. 3 to Marketing Committee, Qudian and then to Market Committee, Dhariwan. He, however, died in the year 1989 and one post of Mandi Supervisor fell vacant. Market Committee, Kalinor, where he was then posted, promoted one person against the said post, which was approved by respondent No. 2 under the provisions of Agricultural Produce Market Act, 1961. Respondent No. 4 filed an appeal against the same on the ground that Sh. Mittar Man Singh was an employee of Market Committee, Dhilwan and that Market Committee alone was competent to fill that post of Mandi Supervisor. This appeal was accepted on 02.07.1990. Respondent No. 4, who was senior most Auction Recorder was promoted against the leave vacancy which was caused due to leave of Sh. Mukhtiar Singh, Mandi Supervisor. This promotion has also been approved by the Civil Writ Petition No. 11928 of 1991 Mandi Board. Respondent No. 4 had worked on that post ever since that date. The grievance of the petitioner is that respondent No. 3 in arbitrary manner and without appreciating the fact that the petitioner is senior Clerk and belongs to Scheduled Caste and was eligible for promotion to the post of Mandi Supervisor on the death of Sh. Mittar Mann Singh, for which he was eligible for promotion even on the basis of reservation policy, denied his claim. The resolution dated 07.02.1991 was passed recommending Sh. Gurcharan Singh, respondent No. 4 for promotion, who was already working against the leave vacancy. The petitioner made a representation on the ground that he being Scheduled Caste was required to be promoted against this vacant post. He also pleaded that denial was arbitrary. When all this was happening, respondent No. 2 framed the rules for the employees working in various Marketing Committee known as Punjab Market Service (Class III) Service Rules, 1989. These rules were published in the Punjab Government Gazette on 27.01.1989. As per the petitioner, grave injustice was done to Clerks working in various Committees. Under these rules, the post of Mandi Supervisor-cum-Fee Collector was made a promotional post for Auction Recorder having minimum experience of 5 years. When the petitioner prayed for decision of his representation, he was apprised about the changed rule position. The petitioner, at that stage, requested that the post, which had falling vacant before new rules came into effect, should be governed by the un-amended rules. Despite this, the respondents passed resolution Annexure P-5 recommending the case of promotion of respondent No. 4 to the post Civil Writ Petition No. 11928 of 1991 of Mandi Supervisor. The petitioner then filed the present writ petition to challenge the same. The petitioner, accordingly, has prayed for direction to consider his case for promotion on the date it fell vacant and to quash the resolution besides quashing the impugned rules through which the rights of the petitioner for promotion was taken away. The writ petition was admitted and promotion, if any, made during the pendency was made subject to the decision in the writ petition. Separate written statements have been filed on behalf of various respondents. One written statement has filed by respondents No. 2 and 3 whereas respondent No. 4 has filed separate written statement. As per the Board, the petitioner is guilty of suppression of material facts. It is disclosed that the petitioner had joined the answering respondents on the post of peon. It was a category apart than that of Auction Recorder. The post of Peon is Class IV post whereas Auction Recorder is Class III post. On 11.01.1984, one Sh. Mittar Man Singh, who was promoted as Auction Recorder to Mandi Supervisor, in place of Sh. Avtar Singh Clerk, who later died on 28.08.1988. The petitioner was promoted as Clerk w.e.f. 11.01.1984 since post of Clerk had fallen vacant on account of promotion to Sh. Avtar Singh. Reference is made to circular issued on 11.11.1983 indicating that as per the Punjab Government letter to determine the eligibility for promotion to the higher post has been settled thereunder. It has been decided that in future the date of occurrence of vacancy shall be taken as the relevant date for determining eligibility of promotion to the higher post. The petitioner, thus, was Civil Writ Petition No. 11928 of 1991 not eligible for promotion from the post of Clerk to Mandi Supervisor without first being promoted as Auction Recorder. It is, thus, stated that the petitioner is not entitled to be considered for promotion to the post of Mandi Supervisor-cum-Fee Collector without being promoted as Auction Recorder. As per the joint seniority list respondent No. 4 is senior to the petitioner. It is accordingly, stated that there is no cause for the petitioner to invoke the writ jurisdiction. Reference is made to Annexure P-1 where date of regular appointment of respondent No. 4 as Auction recorder is 04.03.1983 whereas the petitioner as Clerk is shown to have been appointed on 11.01.1984. The respondents have even denied that there is alleged common seniority list of Clerks and Auction Recorders. As per the respondents, seniority of Clerk is shown separate and two cadres of clerks and Auction Recorder are different. I have considered the submissions before me. There is no viable challenge to the rule which was amended in the year 1989. Even if for the sake of arguments, it is conceded, that the vacancies which arose before the amendment of the rules, would be government by un-amended rules, the petitioner may not be able to get any relief. The petitioner certainly has not been able to make out a case that he was senior to respondent No. 4. Concededly, respondent No. 2 has earlier been adjusted against leave vacancy. During this period, one post of Auction Recorder became available on account of death of Sh. Mittar Mann Singh. He being senior was rightly promoted against the available post. It is even available on record that one post had earlier been occupied by candidate from the Scheduled Castes Reserved category i.e. Sh. Mukhtiar Singh. Civil Writ Petition No. 11928 of 1991 Remaining posts 2 to 4 were unreserved. Against these unreserved posts, the claim of the petitioner in reserved category could not have been so considered. It is also pointed out before me that during the pendency of petition, the petitioner, who was earlier promoted as Clerk has now been promoted as Auction Recorder. Presently, the petitioner is working as Auction Recorder. If that be so, it would also indicate that post of Auction Recorder is a promotional post for Clerk. On that ground also, the petitioner may not have a valid claim for promotion to the post of Marketing Supervisor cum-Fee Collector. I therefore, do not find any merit in the writ petition and the same is accordingly, dismissed. August 10, 2011 (RANJIT SINGH) rts JUDGE