In the High Court of Punjab and Haryana at Chandigarh LPA No. 126 of 2006 Date of decision: January 20, 2009 State of Punjab and others ... Appellants Vs. Paramjit Singh ... Respondent Coram: Hon'ble Mr. Justice Uma Nath Singh Hon'ble Mr. Justice A.N. Jindal Present: Mr. Manoj Bajaj, Sr. DAG, Punjab for the appellants. A.N. Jindal, J The appellants by way of the present appeal have assailed the judgment dated 25.1.2006 passed by learned Single Judge in C.W.P. No. 312 of 1989 quashing the order dated 30.12.1988 (Annexure P-4) relating to the reversion of the respondent-petitioner (herein referred as 'the respondent') from the post of Assistant to Sr. Clerk. The respondent No.1 was working as Clerk w.e.f. 1.5.1969 in the office of Superintending Engineer Circle, P.W.D. (B&R), Ferozepur. Subsequently, he was promoted as Sr. Clerk and was further promoted as Assistant on 10.12.1985 with the condition that he would clear the Assistant Grade examination as required under the rules. Subsequently, he cleared the aforesaid examination on 14.3.1988 vide Annexure P-2. It was further submitted that the respondent No.4 now proforma respondent No.2 (herein referred as 'respondent No.2) Satish Kumar was appointed as Clerk in the year 1988 and he qualified the Assistant Grade examination on 4.9.1987 and was promoted as Assistant on 11.10.1988 on ad-hoc basis. Sham Lal Sr. Clerk being senior to Satish Kumar was ignored for promotion on account of a LPA No. 126 of 2006 in -2- criminal case pending against him. It may further be observed that Satish Kumar was promoted as Assistant on provisional basis without prejudice to the rights of Sham Lal against whom a criminal case was pending and it was mentioned that in case of acquittal of Sham Lal in the said criminal case, Satish Kumar was liable to be reverted. Subsequently, Sham Lal was ordered to be promoted vide order dated 30.12.1988. It has been further observed that to accommodate Sham Lal, the respondent would stand revert from the post of Assistant to that of Senior Clerk on the ground that he had qualified the Assistant Grade examination prior to the respondent. Aggrieved of the above, the petitioner has challenged the order annexure P- 4 by way of writ petition. The appellant-State of Punjab has submitted in its reply that since the respondent No.1 was involved in a fraud regarding bogus payment of Rs.10,09,044/- in connivance with Sub Divisional Engineer/Junior Engineer/ Road Inspector in Special Sub Division, Malout and departmental enquiry is still pending against him; he has not exhausted the departmental channel as provided under para 3.65-A of the Punjab PWD (B&R) Manual and Orders; he has also been charge sheeted on 10.8.1983 and departmental enquiry is still pending against him, therefore, he does not deserve any concession under Section 226 of Constitution of India. It was further submitted that Satish Kumar qualified the Assistant Grade examination in the 6th batch i.e. prior to the respondent, therefore, the respondent was liable to be reverted to the rank of Sr. Clerk. Having examined the impugned judgment and also the documents on record, the parties are not at variance with regard to the fact that the respondent No.1 joined as Clerk prior to Satish Kumar and he has LPA No. 126 of 2006 in -3- also cleared the Assistant Grade examination. There is no such clause that the person who latter cleared the examination would be treated as junior to the person who cleared the examination earlier. The enquiry allegedly being held against the respondent No.1, unless finalized and penalty is imposed, could not stand in his way of promotion. The criminal case so lodged is still pending adjudication. The respondent No.1 cleared the departmental examination on 14.3.1988 and Satish Kumar on 4.9.1987. It is well settled that till the date the vacancies are filled up or the case of a person concerned is considered or if a person is promoted with a condition, the eligible person qualifying the condition of passing the examination prior thereto, it cannot be held to his detriment that he was not qualified on the date when the person junior to him has qualified the examination. The major factor to be considered would be that on the date of consideration, senior person was duly qualified or not. It stands duly established that the respondent No.1 became eligible and qualified for promotion prior to the consideration of promotion granted to Satish Kumar. No meaningful arguments have been raised in order to assail the findings returned by the learned Single Judge. The impugned judgment is quite elaborate and suggests no defect as to draw any inference against the respondent No.1. Resultantly, finding no merit in the appeal the same is dismissed. (Uma Nath Singh) (A.N. Jindal) Judge Judge January 20, 2009 deepak