IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.9521 of 1989 (O&M) Date of decision:07.09.2011 Rajinder Kumar Sood son of Shri Laik Ram, resident of House No.2404, Sector 19-C, Chandigarh, and others. ....Petitioners versus State of Punjab, through the Chief Secretary to Government, Punjab, Department of Personnel and Administrative Reforms, Punjab, Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. J.S.Bhatia, Advocate, for Mr. G.S. Bhatia, Advocate, for the petitioners. Mr. Navdeep Sukhna, DAG, Punjab. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The petitioners, who were working as Clerks in the Department of Health and Family Welfare, claimed seniority over private respondents 4 to 27 to demand that they were entitled to be considered for promotion to the next higher post as Assistants in terms of their seniority, they having passed the departmental examination under Punjab State Assistant Grade Examination Rules, 1984. In the seniority position that had been maintained in the department, the petitioners in the posts of Clerks were at Serial Nos.184, 185, 189 and 203, while respondents 4 to Civil Writ Petition No.9521 of 1989 (O&M) - 2 - 21 were at 187, 188, 191, 196, 197, 204, 214, 217, 219, 220, 221, 224, 227, 228, 230, 233, 239, 243 respectively and respondents 22 to 27 had joined subsequent to the year 1984 and, therefore, they were also juniors to all the petitioners. When the seniority position was reassigned and a list was drawn, the petitioners had been shown in the seniority list at 36, 37, 38 and 39, while it should have been 11, 12, 18 and 19, on the basis that they had passed the departmental examination. The re-assignment of seniority came about in the manner of understanding the notification that enjoined passing of the examination and placing the order of seniority dependent on whether the person had passed in the 5th, 6th and 7th attempts and assigning seniority on two situations: (i) Where there was a vacancy and where the persons, who had passed the Assistant Grade Examination within the first five chances to rank as seniors to these Clerks, who had passed the examination in the 6th and the 8th chance and promoted later; (ii) The second situation was when there was no post available for the promotion but a group of Clerks was available and who had passed Assistant Grade Examination in 5th, 6th, 7th or 8th chance. In such a situation when the vacancy arose, the next senior eligible person was entitled to be promoted irrespective of the fact whether he passed the examination in the 5th 6th 7th or 8th chance. The clarification given for a proper understanding of the notification making the amendment to the Rules appears to have been stayed but the notification dated 31.01.1989 making the amendment to Rule 19(2) of the Punjab State Assistant Grade Examination Rules, 1984 had been the subject of challenge before the Hon'ble Supreme Court in Saroj Rani and another Versus State of Civil Writ Petition No.9521 of 1989 (O&M) - 3 - Punjab and others-1999(4) RSJ 30. The counsel for the petitioners points out that the dichotomy brought through the notification of classifying classes of persons, who had passed in the first five attempts and persons, who had passed on subsequent attempts, had been done away with and the Hon'ble Supreme Court held that the promotion from the Clerk to the post of Assistant would depend on the principle of seniority-cum-merit, the merit factor being dependent on a person passing the examination. Consequently, to apply the ratio in the aforesaid decision, the petitioners, who would rank as seniors from amongst respondents would require to be placed at seniority position 11, 12, 18 and 19 instead of 36, 37, 38 and 39. The counsel points out to me that additional posts were created for Assistants on 29.05.1989 and an office order had been issued directing the private respondents to be promoted against the posts created and persons in serial Nos.1 to 35 had been adjusted. Petitioners 1 to 4, who had been shown in serials 36 to 39 had been actually adjusted as Juniors Auditors in the same scale as Assistants, but against the vacancies that fell by promoting certain other persons, who were Junior Auditors as Assistants. The petitioners were entitled to be adjusted as Assistants on the same day when some of the juniors amongst the respondents had been shown to be promoted on 29.05.1989. While, I notice that the scales of pay of Junior Auditor and the Assistants were not different, it may have had other monetary consequences for any further promotion. 2. The learned counsel for the petitioners is unable to give details of the present status of the petitioners. I direct that the petitioners Civil Writ Petition No.9521 of 1989 (O&M) - 4 - shall be treated as having been promoted to the post of Assistants on the same day when their juniors had been promoted on 01.04.1989, with all attendant consequent benefits including promotion to higher posts if such vacancies had arisen and they were eligible for consideration. The monetary benefits flowing out of such adjustment shall be worked out and if they still continue to their service, they shall be fitted against positions that they were entitled to occupy. This exercise shall be completed within 12 weeks from the date of receipt of copy of this order. 3. The writ petition is allowed to the above extent. (K. KANNAN) JUDGE 07.09.2011 sanjeev