IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.10104 of 1989 (O&M) Date of decision: 12.12.2011 Karam Singh son of Shri Mat Ram, Junior Engineer, Office of the Haryana State Agricultural Marketing Board at Hisar. ...Petitioner versus The Commissioner and Secretary, Government of Haryana, Agriculture Department, Civil Secretariat, Haryana, Chandigarh, and others. II. Civil Writ Petition No.15952 of 1994 (O&M) Ganesh Datt Sharma, Sub Divisional Officer, (E), Haryana State Agriculture Marketing Board, Karnal. ...Petitioner versus State of Haryana, through the Commissioner & Secretary to Government Haryana, Agriculture Department, Civil Secretariat, Chandigarh, and others. ....Respondents III. Civil Writ Petition No.3541 of 1996 Ganesh Datt Sharma, Sub Divisional Officer, (Electrical), Haryana State Agriculture Marketing Board, Panchkula. ...Petitioner versus State of Haryana, through the Commissioner & Secretary to Government Haryana, Agriculture Department, Civil Secretariat, Chandigarh, and others. ....Respondents Civil Writ Petition No.10104 of 1989 (O&M) - 2 - CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Amit Jain, Advocate, for the petitioner in CWP Nos.15952 of 1994 and 3541 of 1996 and for respondent No.3 in CWP No.10104 of 1989. Mr. S.S.Goripuria, DAG, Haryana. Mr. Vivek Singla, Advocate, and Mr.C.B. Goel, Advocate, for respondent No.2. ---- 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. All the three cases are connected. It is strictly a dispute between the petitioner in CWP No.10104 of 1989 and the 3rd respondent in the above writ petition, who incidentally is the petitioner in CWP Nos.15952 of 1994 and 3541 of 1996. The subsequent writ petitions have been filed against the decision of the Marketing Board, where the petitioner and the 3rd respondent were working as Junior Engineers. The dispute is with reference to a promotion post as Sub Divisional Officer (SDO) from the post of Junior Engineer. 2. The recruitment rules provided for four categories to be considered for promotion from the post of Junior Engineer to the post of SDO. The requisite academic qualification and experience for persons other than through the direct recruitments were: (i) The Civil Writ Petition No.10104 of 1989 (O&M) - 3 - diploma in the respective branch of the Engineering or Draftsmen (civil) with 10 years experience as Junior Engineer or Assistant Draftsmen; and (ii) in case of Junior Engineer or Assistant draftsmen, who possessed AMIE qualification, 5 years experience and two years experience in the case of degree holders. In this case, the 3rd respondent-Ganesh Datt was an AMIE, while the petitioner Karam Singh was a person, was claiming promotion as a Sectional Officer having the requisite qualification. The petitioner also claimed that he had a diploma in electronics, which was a requisite qualification. The qualification of the petitioner itself was challenged by the 3rd respondent. 3. Admittedly, the 3rd respondent had been permitted to officiate on adhoc basis as SDO on 12.03.1987 against the vacancy in category-III, but reverted on 22.06.1988. This order of reversion was challenged in CWP No.5002 of 1988 when this Court had directed that the 3rd respondent would have a redressal by means of an appeal to the authority in the Board. The appeal had been allowed when the authority had held that he could have been reverted only if he had been displaced by a person from category-III employee and not otherwise. 4. This brings us to the issue of four categories which the rule had delineated for promotion to the post of SDO. The requisite rule is reproduced:- Civil Writ Petition No.10104 of 1989 (O&M) - 4 - APPENDIX 'B' (SEE RULE 7 & 10) Sr. No. Designation of post Academic qualifications & experience if any, for direct recruitment Academic qualifications and experience, if any, for appointment other than by direct recruitment Method of recruitment 1. 2. 3. 4. 5. Sub-Divisional ***B.Sc. Engineering i) Diploma in the respective Officer in respective branch branch of engineering or Draftsmen of Engineering or its (civil) with 10 years experience equivalent. as Junior Engineer or Asstt. Draftsmen ii) In case of Junior Engineer or Asstt. Draftsmen who possess A.M.I.E. Qualification five years experience and two years experience in the case of degree holders. ***Added vide notification No.G.S.R. 47/Pb. 23 161/6.43/83, dated 15.6.1983. In case of a To be filled in the manner as under: Sectional Officer or a Circle Head Draftsmen who possesses AMIE qualification 5 years experience and two years experience in case of degree holders. Posts allotted to various Total each categories in a lot of 15 category posts divided into 3 blocks of 5 posts each -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- I. II III Total i) by direct recruitment 2 2 2 6 ii) by promotion from 1. 3. 2. 6 Sectional Officers. iii) by promotion from 1 - - 1 Asstt. Draftsmen -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- iv) by promotion from Sectional Officers/ Asstt. Draftsmen 1 - 1 2 possessing qualifications 5 5 5 15 of AMIE Note: 1 In case suitable candidates are not available from source No.(iv) the vacancy shall be filled by direct recruitment. Note: 2 In case a candidate is not available from source (i) or (iii) and a person has to be appointed in public interest as a stop gap arrangement from other than the allotted source such a person shall be liable to be reverted to his original cadre when a candidate from the allotted source is available and the period of service rendered by such person will not be reckoned for the purpose of seniority.” 5. It is an admitted case that the petitioner was from category-II, while the 3rd respondent was from category-IV. The contention was that in a block of 5 posts, after the first 4 posts were Civil Writ Petition No.10104 of 1989 (O&M) - 5 - consumed by the first 3 categories, the next post that fell vacant had to be allotted only to the 4th category. In this case where a person, who had been promoted from Sectional Officer's rank died, instead of offering the post to the next in the order of roster, the petitioner had been appointed on the ground that a post that was vacated by a Sectional Officer must be given only to another Sectional Officer. It is this decision which is in challenge and which was found fault with even while disposing of the intra-departmental appeal. 6. In my view, it is clearly a misreading of the relevant rule in such a situation to offer the post that fell vacant by the death of a Sectional Officer. The vacancy that arose could have been given only to the person next in order in the roster, since filling-up the same post with the person from Sectional Officer's post would mean violating the rule and discarding the roster prepared. It could lead to an absurd situation of a person in category-IV never coming to occupy promotion post, if amongst the promotees from the first three categories there were any deaths or any other voluntarily resignations that would keep getting filled up from the respective categories without going to the next one in order. Such a reading of the rule will cause serious mischief and it was correctly rectified by the appellate authority. The appellate authority was correct in stating that the 3rd respondent could not have been displaced by any person other than a person in category-III if there arose a vacancy by the death of an officer in category-II. The 3rd respondent appears to Civil Writ Petition No.10104 of 1989 (O&M) - 6 - have actually filled up by promotion as a stop gap arrangement for a person in category-III and if there was no person in category-IIII, as a person in category IV, he was entitled to be considered for promotion and yet another person from category-II could not have been considered at that time. 7. The writ petition challenging the order promoting the 3rd respondent in CWP No.10104 of 1989 ought to fail and it is, accordingly, dismissed. The writ petition in CWP No.15952 of 1994 which is filed by the 3rd respondent challenging the promotion offered to the petitioner, who was arrayed as 3rd respondent in CWP No.15952 of 1994 is required to be allowed. Consequently the further promotion offered to the petitioner in CWP No.10104 of 1989 and arrayed as the 3rd respondent in CWP No.3541 of 1996 cannot be permitted. The petitioner in CWP No.3541 of 1996 is entitled to be considered as having been promoted to the post of Executive Engineer on the day when the vacancy arose and when Karam Singh was promoted. 8. The Board shall calculate the monetary benefits accruing to the promotion post and release in favour of the petitioner within 12 weeks from the date of receipt of copy of this order. The petitioner will also be entitled to all the consequential benefits on such a reckoning of the Board in the manner indicated above. Civil Writ Petition No.10104 of 1989 (O&M) - 7 - 9. In fine, CWP No.10104 of 1989 is dismissed and CWP Nos.15952 of 1994 and 3541 of 1996 are allowed. (K. KANNAN) JUDGE 12.12.2011 sanjeev