IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13877-CAT of 2002 Date of Decision : January 13, 2011 Om Parkash ....Petitioner Versus Union of India and others .....Respondents CORAM : HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE T.P.S.MANN Present : Mr. Yogesh Putney, Advocate for the petitioner. Mr. Sanjay Joshi, Advocate for respondent Nos.1 and 2. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M.KUMAR, J. 1. The instant petition filed under Article 226 of the Constitution is directed against the order dated 1.3.2002 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity 'the Tribunal'), dismissing the Original Application filed by the petitioner. Accordingly, the Tribunal has upheld the selection and appointment of Shri Som Bahadur-respondent No.3 as Assistant Store Keeper. 2. Few facts necessary for deciding the controversy, may first be noticed. On 2.5.1983, the petitioner was appointed as a Lascar in the Indian Air Force, which is a Group-D post. The next channel of promotion from the post of Lascar is to the post of Assistant Store Keeper, which is governed by the statutory rules known as 'The Indian Air Force Senior CWP No. 13877-CAT of 2002 -2- Store Superintendent, Store Superintendent (Non supervisory) and Assistant Store Keeper (Civilians) Recruitment Rules, 1988 (for brevity 'the Rules'). On the basis of competitive examination held between the Group D employees, the post of Assistant Store Keeper can be filled up, as is provided by Rules 4 and 5 of the Rules. As per the rules, the post of Assistant Store Keeper is to be filled to the extent of 90% by transfer failing which by direct recruitment and 10% of the posts are to be filled up by appointment from Group D employees born on the regular establishment for which minimum qualification is Matric. 3. On 18.1.1999, an advertisement was issued inviting applications from eligible Group 'D' employees for filling up the post of Assistant Store Keeper(P-3). In response to the advertisement, the petitioner as well as respondent No.3 alongwith many others applied. A written test was conducted in which the petitioner secured highest marks and was placed at serial No.1(sic.72). The written test was followed by the viva-voce and the total marks including viva-voce continued to be the highest in respect of the petitioner, i.e. 92. It is pertinent to mention that the marks of the private respondent No.3 were far below i.e. 62½ (46½+7+3+4+2). The selection committee vide its recommendation dated 9.2.1999(P-6) recommended the name of the petitioner and kept the name of one Shri Jaspal Singh as a stand by name. The case of the petitioner is that since respondent No.3 was working as a Cook with Shri A.Aggarwal, Air Commodore, the authorities showed vice and appointed him to the post of Assistant Store Keeper instead of issuing letter of appointment to the CWP No. 13877-CAT of 2002 -3- petitioner. In para 13 of the writ petition, some allegations have been repeated, which are mentioned in para 4(x) of the Original Application. The allegations have been controverted in the reply filed on behalf of respondent Nos.1 and 2, which is duly verified by respondent No.2 Shri A.Aggarwal. Feeling aggrieved, the petitioner approached the Tribunal and the claim made by him has been rejected by making the following observations:- “6. After going through the pleadings and hearing the learned counsel for respondents and taking note of contents of Annexure R-1 instructions issued by headquarters dated 26.12.98, we find that the case of the applicant is based mainly on wrong assumption and mis- conception about the process in which appointment to the post of ASK was considered. Copy of rules placed on record known as The Indian Air Force Senior Store Superintendent, Store Superintendent (Non Supervisory) Storekeeper and Assistant Store Keeper (Civilian) Recruitment Rules, 1988 indicates that person from Group 'D' were eligible for being considered for appointment to the post of Assistant Store Keeper to the extent of 10% of total number of post. For this, after prescribing the minimum educational qualification and that person must have atleast five years service on a Group 'D' post, it has been very clearly mentioned that such CWP No. 13877-CAT of 2002 -4- appointment/selection has to be made through a qualifying departmental examination and confined to such Group 'D' employees who fulfill the other eligibility conditions. A bare reading of this rule does not indicate to be an appointment by selection on the basis of merit. It is through a qualifying departmental examination. One cannot find fault by the interpretation put by the respondents on this rule that persons who secure more than 40% marks and qualified in the process were to be given appointment on seniority-cum-fitness basis. If the Selection Committee had made recommendations purely on the basis of merit obtained in the process held, the same was corrected on clarification given by headquarters. 7. Apprehension of the applicant with respect to the Presiding Officer of the Selection Committee has been found to be incorrect as the applicant does not himself appear to be supporting his earlier plea that respondent No.4 was appointed for the reason that he was working as a cook with any Member of Selection Committee. We would thus, hold that neither the allegations of malafides are pressed in the amended O.A. nor are supported by any evidence.” 4. It is obvious that the Tribunal after interpreting Rules 4 and 5 CWP No. 13877-CAT of 2002 -5- of the Rules concluded that from Group 'D' posts promotion is contemplated for advancement of career on the post of Assistant Store Keeper. The petitioner was still not satisfied and he filed Review Application before the Tribunal, which has been dismissed vide order dated 11.7.2002 (P-12). It is also appropriate to mention that the post of Cook/Head Cook has been declared as a Group 'C' post in the pay scale of Rs.3050-75-3950-80-4590 w.e.f. 1.1.1996 as is evident from the perusal of notification dated 20.10.2001(P-13). Accordingly, it is inferable that respondent No.3 has become member of Group 'C' service w.e.f. 1.1.1996. It is further appropriate to mention that the status from Group 'D' to Group 'C' has been changed from April, 1998 as per letter dated 29.12.1998. 5. Mr. Yogesh Putney, learned counsel for the petitioner has argued that the post of Assistant Store Keeper even if regarded as a promotional post cannot be filled up on the basis of seniority alone, especially when according to Rules 4 and 5 read with appendix, a candidate has to go through a departmental examination limited to those Group 'D' employees, who fulfill the minimum qualification, namely, Matric or equivalent from a Board/University. According to learned counsel, the maximum age for the examination has also been fixed at 50 years and five years' service in Group 'D' post is essential. Therefore, the respondents are not correct to conclude that merely because it is a promotional post then the seniority should be given its due weighage. Mr. Putney has maintained that the petitioner has secured 92 marks as against 62½ marks secured by respondent No.3. Moreover, the name of CWP No. 13877-CAT of 2002 -6- respondent No.3 was not even recommended by the selection committee in its recommendation dated 9.2.1999(P-6). Learned counsel has also highlighted the allegations made in para 13 of the writ petition which infact is repetition of the allegations made in para 4(x) of the Original application. 6. Mr. Joshi, learned counsel for respondent Nos.1 and 2, however, argued that the basic allegation against respondent No.2 was that Shri Som Bahadur respondent No.3 has been working as a Cook with respondent No.2, which has categorically been denied in the written statement filed and duly verified by respondent No.2. According to learned counsel once there is a categorical rebuttal of the allegations then in the absence of any clinching material, it would not be proper to conclude that there is any relationship of master and servant between respondent Nos.2 and 3. Reference has also been made to the replication filed by the petitioner where there is no specific assertion with regard to the fact that respondent No.3 has been working as a Cook with respondent No.2. On the other issue, Mr. Joshi, learned counsel has argued that once the Assistant Store Keeper is a promotional post then subject to qualifying the test a candidate should have been appointed in the order of seniority. To substantiate his arguments, learned counsel has placed reliance on the instructions dated 6.12.1999 (P-9) to show that the appointment of Group 'D' employees to the post of Assistant Store Keeper is not strictly by way of recruitment but it is by way of promotion. These instructions were issued to clarify that the recruitment on the post of Assistant Store Keeper CWP No. 13877-CAT of 2002 -7- would not be hit by the bar imposed upon direct recruitment. 7. Having heard learned counsel and perusing the paper book, we are of the view that it would be first necessary to determine whether the post of Assistant Store Keeper is a promotional post and what is the effect of category of this post on the recruitment held in the present case. Rule 4 of the Rules deal with the methods of recruitment, age limit and other qualifications and Rule 5 prescribed disqualification. Rules 4 and 5 of the Rules reads as under:- “4. Method of recruitment, age limit and other qualification: The method of recruitment, age limit, qualifications and other matter relating to the said post shall be as specified in column 5 to 14 of the said Schedule. 5. Disqualification:- No person (a) Who has entered into or contracted a marriage with a person having a spouse living, or (b) Who, having a spouse living, has entered into or contracted a marriage with any person, shall be eligible for appointment to the said post. Provided that the Central Government may, if satisfied that such marriage is permissible under the personal law applicable to such person and the other party CWP No. 13877-CAT of 2002 -8- to the marriage and that there are other grounds for so doing, exempt any person from the operation of this rules.” 8. The aforesaid rules need to be read in juxta-position with schedule appended to the Rules which are reproduced as under for facility of reference:- 1 to 8 9 10 11 12 13 & 14. xxx Not applicable Two years for direct recruitment and promotees. No probation period for transferees. 90% by transfer failing which by direct recruitment, 10% by appointment of Group 'D' employees born on regular establishment subject to the following conditions:- (a) Selection shall be made through a qualifying departmental examination confined to such Group 'D' who fulfill the requirement of minimum educational qualification, namely Matriculation or equivalent from a recognised Board/University. Transfer: Persons working in similar equivalen t of higher grades in the lower formatio ns of the Defence services. xxx 9. A perusal of the rules alongwith the schedule would show that 90% posts of Assistant Store Keeper are to be filled up by transfer and if the adequate number of persons are not available for appointment by transfer then the remaining posts could be filled up by direct recruitment. However, 10% posts are required to be filled up by recruitment from CWP No. 13877-CAT of 2002 -9- Group 'D' employees born on regular establishment subject to the conditions that the selection is to be made through a qualifying departmental examination limited to such Group D employees, who fulfill the requirement of minimum educational qualification, namely, Matriculation or equivalent. There is no guidance available describing the method of appointment for 10% posts by reading all the rules. However, since the appointment is confined to Group 'D' employees and under the column concerning the method of appointment, transfer and direct recruitment have already been covered under 90% quota then the only thing which would be survive from the reading of sub heading of the schedule is to fill up the post by promotion. Accordingly, it is held that the post of Assistant Store Keeper is to be filled up from amongst members of Group 'D' employees available for promotion. However, the element of selection has been specifically provided which make the rules peculiar. It must, therefore, be concluded that it is purely promotional post but it has to be filled up purely by a selection process. However, that explains why the selection committee never made recommendation in favour of respondent No.3(P-6). There was, thus, no possibility of interpreting the rules to make the method of appointment purely by way of promotion and by treating the departmental examination merely as a bench mark to qualify for promotion. Therefore, we are of the view that the recommendation made by the selection committee should have been given effect and the most meritorious candidate like the petitioner, who had secured 92% marks should have given appointment. We have reached the aforesaid conclusion CWP No. 13877-CAT of 2002 -10- for another reason because respondent No.3 Shri Som Bahadur has already started enjoying the benefit of Group 'C' service while holding the post of Cook/Head Cook. The benefit of Group C service has been given to him vide Annexure P-13 providing that the category of Cook which was earlier in Group D service has been shifted to Group C in the pay scale of Rs.3050-75-3950-80-4590 w.e.f. 1.1.1996. Accordingly, we hold that the petitioner has been denied the appointment without the authority of law and the respondents are liable to comply with the recommendation made by the selection committee on 9.2.1999(P-6). 10. As a sequel to the above discussion, the appointment of respondent No.3 on the post of Assistant Store Keeper is quashed. Respondent Nos.1 and 2 are directed to issue letter of appointment to the petitioner. The petitioner is also held entitled to all consequential benefits, which would mean that his pay may be notionally fixed but the arrears shall be confined to three years and two months from the date preceding the date of filing of the Original Application i.e. 1.4.1999. The respondents shall comply with the directions within a period of three months from the date of receipt of a copy of this order. No order as to costs. ( M.M.KUMAR ) JUDGE ( T.P.S.MANN ) January 13, 2011 JUDGE ajay-I