IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.19005 of 2009 DATE OF DECISION : AUGUST 18, 2010 ANIL SOOD & ORS. ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ANR. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Rajiv Atma Ram, Sr. Advocate, with Mr. NK Chopra, Advocate, for the petitioner(s). Mr. BS Chahal, DAG, Punjab. AJAI LAMBA, J. (Oral) 1. In this petition under Article 226 of the Constitution of India, learned counsel for the petitioners has prayed that a writ in the nature of mandamus be issued directing the respondents to count the period spent by the petitioners while holding Current Duty Charge of the posts of Executive Engineers towards experience for promotion to the posts of Superintending Engineers. 2. It has been pleaded on behalf of the petitioners that vide order Civil Writ Petition No.19005 of 2009 2 dated 7.1.2002, the petitioners were given Current Duty Charge of the posts of Executive Engineers. Regular vacancies of Executive Engineers existed as on 7.1.2002. The petitioners were amongst the senior most Sub Divisional Officers at the relevant time and, therefore, were fully eligible for promotion to the posts of Executive Engineers. No adverse entries in the Annual Confidential Reports were conveyed to the petitioners. Thus, seniority and merit of the petitioners was considered before giving Current Duty Charge to the petitioners on vacant posts. The petitioners were holding independent charge. On account of some litigation, regular promotions could not be made by the respondent-department. On vacation of the stay by this court, proceedings of the Departmental Promotion Committee were conducted and regular promotions were made in July, 2004. Under the circumstances, the petitioners were promoted to the posts of Executive Engineers on regular basis vide order dated 28.7.2004 with effect from the said date. For promotion to the posts of Superintending Engineers, the petitioners claim that the services rendered by the petitioners on Current Duty Charge be counted as experience under the rules applicable for considering eligibility and suitability. 3. Learned counsel for the petitioners contends that the issue is squarely covered by a judgment of a Division Bench of this Court rendered in CWP 11007 of 2006 (Jaskaran Singh v. State of Punjab and another) decided on 6.12.2007. 4. Learned counsel for the respondent-State contends that, indeed, the issue is covered by the judgment in Jaskaran Singh's case (supra), however, the respondents have gone up in appeal. The operation Civil Writ Petition No.19005 of 2009 3 of the judgment in Jaskaran Singh's case (supra) has been stayed by the Hon'ble Supreme Court of India. Learned counsel for the respondent- State has not relied on any other judgment to argue the case contrary to the case argued on behalf of the petitioners. 5. Learned counsel for the petitioners, however, contends that the petitioners would be entitled to the relief prayed for in the petition in view of the rules and also the fact that the appeal filed in the Hon'ble Supreme Court of India has been merely admitted and the judgment of this Court has not been set aside. The appeal is still pending in the Hon'ble Supreme Court of India and that alone would not be a sufficient circumstance to delay the grant of relief to the petitioners. 6. I have considered the issue. 7. A Division Bench of this Court, while considering the issue in Jaskaran Singh's case (supra), has held in the following terms (relevant portion):- “We are satisfied that for determination of eligibility of the petitioner for promotion to the post of Superintending Engineer the “experience” earned by him while working as Executive Engineer with effect from 7.11.1997 has to be taken into consideration. Thus, the petitioner acquired eligibility on completion of 6 years 'experience' as Executive Engineer for promotion to the post of Superintending Engineer in 2003. Since vacancies in the rank of Superintending Engineer are stated to be available, as is apparent from the fact that the petitioner himself was allowed current duty charge against the post of Superintending Engineer with effect from 19.5.2006 and since the respondents also required the same to be manned, which is also obvious from the fact that the petitioner was given Civil Writ Petition No.19005 of 2009 4 current duty charge as such with effect from 19.5.2006. We are of the view that the respondents were liable to fill up the available vacancies in the rank of Superintending Engineer on regular basis, in consonance with 2004 Rules. Accordingly, we hereby direct the respondents to fill up the available vacant posts of Superintending Engineers within three months from the date of receipt of certified copy of the order. In the aforesaid consideration the claim of the petitioner be also considered by treating him as eligible for promotion (to the post of Superintending Engineer). Disposed of accordingly. In case the petitioner is allowed regular promotion to the post of Executive Engineer and/or Superintending Engineer, the petitioner will also be entitled to all consequential benefits.” 8. From the order (Annexure R-1), it is evident that the respondent-State has gone up in appeal against the judgment rendered in Jaskaran Singh's case (supra) and stay of impugned order of High Court has been directed. 9. Essentially, so as to claim the relief prayed for in the petition, the petitioners rely on the Punjab Irrigation Department (Group A) Service Rules, 2004, in particular Rule 5 read with Appendix B. The promotion is required to be made on seniority-cum-merit basis. The post of Superintending Engineer is to be filled up 100% by way of promotion. “Appendix B” provides that an Executive Engineer would be promoted to the post of Superintending Engineer : “from amongst the Executive Engineer who possess a degree in Engineering in any line from a recognized university or institution and who have an experience of working as such for a minimum period of six years” (Emphasis supplied). Civil Writ Petition No.19005 of 2009 5 10. In paras 3 to 6 of the writ petition, it has specifically been pleaded that regular vacancies of the posts of Executive Engineers existed on 7.1.2002 when the petitioners were given Current Duty Charge of the said posts. It has also been pleaded that the petitioners were amongst the senior most Sub Divisional Officers at that point in time and were fully eligible for promotion to the posts of Executive Engineers, considering their seniority and merit, which is the relevant criteria. It has further been pleaded that the petitioners were holding independent charge of the posts of Executive Engineers and the same was given after giving due consideration to the eligibility and service record of the petitioners. The promotion on regular basis could not be given to the petitioners in the year 2002 for the reason that some litigation was pending in the High Court and on vacation of stay, the Departmental Promotion Committee recommended the names of the petitioners for regular promotion in July, 2004. The pleadings in paras 3 to 6 of the petition have not been specifically denied in the written statement. All that has been pleaded is that experience of the petitioners as Executive Engineers can be considered only if they had served as Executive Engineers after regular promotion. No reason is coming forth in regard to the relevant criteria provided in the rule viz. experience. 11. In my considered opinion, once the rules provide that “experience” of working as Executive Engineer for six years would be counted to consider the eligibility, the respondents cannot be allowed to take the stand that the provision/rule should be read as “experience on Civil Writ Petition No.19005 of 2009 6 regular post of Executive Engineer”. Such an incorporation in the rules would be unreasonable, injudicious and irrational. “Experience” itself has not been defined in the rules so as to give a leverage to the respondents to interpret the term as “experience on regular post of Executive Engineer”. Thus, by any interpretation, the respondents cannot be allowed to add to the rules. In the case in hand, in view of the pleadings, as referred to above, it is the admitted case that the petitioners were senior amongst the Sub Divisional Officers to have been given independent Current Duty Charge of the posts of Executive Engineers. The seniority-cum-merit had been considered while giving the said charge and the promotion was delayed only because of a litigation pending in this court. In such circumstances, considering the facts and circumstances of this case, in the context of the provisions contained in the rules, I am of the considered opinion that the petitioners are entitled to take the benefit of experience gained by them while holding Current Duty Charge of the posts of Executive Engineers. 12. The contention of the learned counsel for the respondent- State that the judgment in Jaskaran Singh's case (supra) has been challenged and the order passed by the High Court has been stayed, in the facts and circumstances of the case, would not be a fact sufficient to adjourn this case. The judgment of the High Court is not rendered non-est till the disposal of the appeal pending in the Hon'ble Supreme Court of India. In this regard, my view is supported by the judgment rendered by this Court in Roshan Jagdish Lal Duggal and others v. The Punjab State Electricity Board, Patiala, 1984(2) SLR 731, wherein the following has Civil Writ Petition No.19005 of 2009 7 been held in para-11:- “11. The observations reproduced in the Limine Order dismissing C.W.P. No.5911 of 1983 cannot be pressed to canvass the proposition that an order of the High Court ceases to be a binding precedent after it is assailed in appeal and its future operation suspended. The admission of an appeal against the order of the High Court and the suspension of its operation during the pendency of the appeal does not have the effect of rendering it non-est till the disposal of the appeal nor has it been so held in the order dated February 14, 1983, dismissing C.W.P. No.5911 of 1983 in limine, wherein the castigation of a few members of the Haryana Public Service Commission in another writ was not allowed to be utilised because this finding was sub judice before the Supreme Court. It is thus obvious that the ratio of Sukhdev Raj Sharma's case (supra) shall continue to be a binding precedent irrespective that an appeal therefrom is pending in the Supreme Court and its future operation suspended till its disposal.” 13. In view of the peculiar facts and circumstances of the case, I see no reason not to adjudicate on the issue brought before me. 14. Resultantly, it is held that the petitioners have gained experience while working as Executive Engineers with effect from 7.1.2002. It is held that the petitioners acquired the eligibility on completion of six years experience as Executive Engineers for promotion to the posts of Superintending Engineers in the year 2008. The respondents, accordingly, are directed to consider the cases of the petitioners for promotion to the posts of Superintending Engineers in the light of what has been held above. The necessary exercise be concluded by the respondents within a period of two months of receipt of certified Civil Writ Petition No.19005 of 2009 8 copy of the order. 15. The petition is allowed in the above terms. August 18, 2010 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?