Civil Writ Petition No. 15023 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 15023 of 2010 Date of decision:- 23.8.2011 Ramesh Chand ...Petitioner Versus Punjab Vidhan Sabha, Chandigarh and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Manjeet Singh, Advocate for the petitioner. Mr. O.P. Dabla, DAG Punjab. RITU BAHRI J. This writ petition under Article 226/227 of the Constitution of India is for issuance of a writ in the nature of certiorari for quashing the order dated 06.7.2010 (Annexure P-8) whereby the representations of the petitioner have been rejected, order dated 2.2.2009 (Annexure P-4), order dated 3.2.2009 (Annexure P-5) and order dated 5.2.2009 (Annexure P-6). The petitioner was appointed as a Clerk on 21.4.1975 and thereafter he was promoted as Junior Assistant on 21.5.1990 and as Senior Assistant on 16.7.1996 after clearing the departmental test. On 25.2.2008 he was promoted as Superintendent Grade-II and thereafter on 27.2.2009 as Superintendent Grade-I (Annexure P-1). Respondent No.2 was appointed initially as Clerk on 25.9.1978 thereafter as Junior Assistant on 28.3.1992. She was promoted as Senior Civil Writ Petition No. 15023 of 2010 -2- Assistant on 11.12.1997 and as Assistant Information Officer on 4.12.2002 (Annexure P-3). The promotion to the post of Assistant Information Officer is from amongst Senior Officers, who have at least five years experience. Respondent No.2 never promoted as Superintendent Grade-II, promotion to the post of Superintendent Grade-I is regulated by Punjab Vidhan Sabha Secretariat Service Rules, 2007. These rules have been framed by the Speaker and duly approved by the House. These rules were notified vide Punjab Government Notification dated 15.2.2007. As per Appendix 'B' the post of Superintendent Grade-1 can be filled by way of promotion in the following manner :- “From amongst Senior Translators/Suprintendent Grade-II, having an experience of ten years as Senior Translators and in the case of Superintendent Grade-II, having an experience of one year as such or ten years as Senior Assistant on the basis of merit-cum-Seniority. Provided that two posts shall be earmarked for Senior Translators: Provided further that the Speaker can exclusively fill two posts direct from amongst Senior Assistants in the interest of efficiency subject to the condition that the incumbent of the post is Graduate/Post Graduate or law Graduate and have an experience of seven years as Senior Assistant.” Respondent No.2 has been promoted as Superintendent Grade-I vide order dated 2.2.2009 (Annexure P-4) despite the fact that she was Assistant Information Officer, which is not a feeder cadre post for the post of Superintendent Grade-I. Respondent No.3 was initially appointed as Clerk on 30.3.1988 as Junior Assistant on 1.3.1997. He was promoted as Senior Assistant on 19.5.2004. He was never promoted as Superintendent Grade-II. Vide order Civil Writ Petition No. 15023 of 2010 -3- dated 3.2.2009 he has been promoted as Superintendent Grade-I (Annexure P- 5). As Senior Assistant he did not have seven years experience and therefore did not fulfil the eligibility qualification as per Appendix 'B' of 2007 Rules. Respondent No.4 was initially appointed as Research Assistant on 27.10.1999 and was promoted as Research Officer vide order dated 5.2.2009 (Annexure P-6). He was promoted as Research Officer without the experience of ten years as Research Assistant on account of his promotion as Research Officer he becomes part of the feeder cadre for promotion to the post of Under Secretary, which shall directly effect the promotional aspect of the petitioner. The post of Research Officer is a feeder post for the post of Under Secretary. He will directly effect the promotional aspect of the petitioner to seek promotion to the post of Superintendent Grade-I, which is feeder cadre post of Under Secretary. Mr. Manjeet Singh counsel for the petitioner has challenged the promotion of respondent Nos.2 and 3 being discriminatory and with a malafide intention to make them senior to the petitioner. Respondent No.4 has been promoted as Research Officer despite the fact that he did not possess the required experience of Research Assistant. He was appointed as Research Assistant on 27.10.1999 and would have completed 10 years service as such on 26.10.2009. He has been promoted on 5.2.2009 (Annexure P-6). Petitioner has made representations in this regard which have been rejected vide order dated 06.7.2010 (Annexure P-8). No reasons have been assigned while rejecting his representations. He has relied upon the judgment of the Supreme Court in Suraj Parkash Gupta versus State of Jammu & Kashmir 2000(3) S.C.T. 34 to contend that if the authorities make promotions in relaxation of rules, they are required to strictly comply with the recruitment rules. There can be no implied relaxation of rules and cogent reasons must be recorded for relaxation. The Civil Writ Petition No. 15023 of 2010 -4- power of relaxation is to be exercised in a case of hardship which would mean pertaining to an event, situation or circumstance. The power is not to be exercised in relation to a particular person. In J.C. Yadav versus State of Haryana 1990(2) SCC 189, the Constitution Bench while dealing with Rule 22 of the relevant rules which permitted relaxation, in case of hardship, in “any particular case”, held that the above words did not mean a particular person but meant “pertaining to an event, situation or circumstances”. The power could therefore be exercised even in favour of a group. Section 20 of the Punjab Vidhan Sabha Secretariat Service rules, 2007 reads as under:- “Power to relax Rules.- Where the Speaker is of the opinion that it is necessary or expedient to do so, he may by an order, for reasons to be recorded in writing, relax any of the provisions with respect to any class or category of employees.” The Rule specifically gives power of relaxation to the Speaker. This power is accompanied by a rider that the Speaker has to give his opinion that it was necessary and expedient to relax any of the provision with respect to any class or category of employees. Mr. Manjeet Singh, counsel for the petitioner has further relied on Anil Sagar versus State of Haryana and others 2008(4) S.C.T. 402 to contend that the power of relaxation cannot be exercised if eligible candidates are available. He has further relied on Sukhdarshan Pal Sehgal versus State of Punjab and others 1994(2) SLR 228 to contend that unqualified candidates to be appointed only if qualified hands are not available. Mr. O.P. Dabla, DAG Punjab on the basis of written statement filed made reference to Clause VI of Appendix 'B' which is as under :- From amongst Senior Translators/Superintendent Grade-II, having an experience of ten years as Senior Translators and in the case of Superintendent Grade-II, having an experience Civil Writ Petition No. 15023 of 2010 -5- of one year as such or ten years as Senior Assistant, on the basis of merit-cum-seniority. Provided that two posts shall be earmarked for Senior Translators : Provided further that the Speaker can exclusively fill two posts direct from amongst Senior Assistants in the interest of efficiency subject to the condition that the incumbent of the post is Graduate/Post Graduate of law Graduate and have an experience of seven years as Senior Assistant.” A specific power exclusively has been given to fill up two posts direct from amongst Senior Assistants. The eligibility is that the incumbent of the post should be Graduate/Post Graduate or law Graduate and has experience of seven years as Senior Assistant. Respondent No.2 was promoted on 11.12.1997 and on the date of promotion as Superintendent Grade-I i.e. 2.2.2009 she had more than seven years experience. From 1997 till date of promotion she has more than seven years of experience. As far as respondent No.3 is concerned, he was promoted as Senior Assistant on 19.5.2004. On 03.2.2009 vide Annexure P-5 he has been promoted as Superintendent Grade-I. Even though respondent No.3 did not carry the experience of seven years. The Speaker, while exercising powers under Section 11 Sub Clause II has selected and promoted him on the basis of merit-cum-seniority. By making promotion exercising the power under Rule 11 the relaxation contemplated under Rule 20 the language has been deemed to be exercised. Respondent No.4 has been promoted as Research Officer on 5.2.2009 (Annexure P-6). As per rule sub Clause 8 of Appendix 'B' Research Assistant with an experience of 10 years experience can be promoted to a post of Research Officer. In the present case respondent No.4 has been appointed as Research Assistant on 27.10.1999 and was promoted as Research Officer vide order dated 5.2.2009 (Annexure P-6). He has been promoted against a vacancy Civil Writ Petition No. 15023 of 2010 -6- which arises on account of suspension of incumbent Shri Anil Viz. Petitioner is nowhere effected by the promotion given to respondent No.4 in exigency of administrative work as incumbent was on suspension. On a future prospect, promotion of respondent No.4 cannot be questioned. The promotion of respondent No.4 is subject to finalization of proceeding against Anil Viz and in case he is reinstated, respondent No.4 is likely to be reverted as his promotion is conditional. I have heard counsel for the parties and have gone through the case file carefully. As far as promotion of respondent No.4 vide order dated 5.2.2009 (Annexure P-6) is concerned it does not require interference as this promotion is conditional. It is because of that incumbent Anil Viz is under suspension and on administrative grounds respondent No.4 has been promoted. As far as promotion of respondent Nos.2 and 3 is concerned, it is not disputed that both these respondents are junior to the petitioner from the initial date of appointment. The respondent Nos.2 and 3 have been appointed by the Speaker by exercising power given under Clause VI of Appendix 'B' whereby two posts can be directly and exclusively filled up by the Speaker from amongst Senior Assistants in the interest of efficiency with an experience of seven years as per Rule 11 sub Clause 2. Rule 11 sub Clause (2) reads as under:- “(2) The Speaker may, by order, from time to time :- (a) specify the method or methods by which a post or class of posts may be filled; (b) determine the proportion of vacancies to be filled by each method; and (c) All appointments to the service by promotion shall be made by selection on merit-cum- seniority basis and no person shall be entitled Civil Writ Petition No. 15023 of 2010 -7- to claim promotion on the basis of seniority alone.” A conjoint reading of Rule 11.2 Clause VI of Appendix 'B' and Rule 20 leaves no doubt that object of giving the powers to the Speaker to fill up two posts of Superintendent Grade-I from amongst Senior Assistants having experience of seven years have been given keeping in view the efficiency of the Department. The respondent No.2 as per Clause VI was required to have only seven years experience as Senior Assistant. She was appointed as Senior Assistant on 11.12.1997 and as Assistant Information Officer on 4.12.2002. She has worked on the post of Senior Assistant for more than seven years. Promotion to the post of Assistant Information Officer requires experience of five years of Senior Assistant. She fulfils the eligibility criteria and her promotion as Superintendent Grade-I requires no interference. As far as respondent No.3 is concerned, he was promoted as Senior Assistant on 19.5.2004 and he has been promoted as Superintendent Grade-I on 3.2.2009 (Annexure P-5) with an experience of 4-½ years as Senior Assistants. As far as the power to exercise relaxation of rules is concerned, the Speaker has to record reasons in writing before any relaxation as given for appointment in any class or category of employees. It goes without showing that there would not be a deemed relaxation of rules in case a specific order has not been passed in writing. However, the language of Rule 11 Sub Clause (2) gives special powers to the Speaker, which is to be exercised from time to time. As per Clause 11(2)(c) appointments can be made to the service by promotion by selection on merit- cum-seniority and no person shall be entitle to claim promotion on the basis of seniority alone. This power is a departure from the normal rule of promotion. Rule 13 of the Punjab Vidhan Sabha Secretariat Service Rules 2007 lays down that the inter se seniority of members shall be determined by the length of Civil Writ Petition No. 15023 of 2010 -8- continuity service on any post. Rule 13 of the 2007 Rules is reproduced here under :- “13. Seniority of members of service—Seniority, inter se members of the service shall be determined by the length of continuous service on any post in the service : Provided that where there are different cadres in the service the seniority shall be determined separately for each cadre. Provided further that in the case of two or more the members of service appointed on the same date their seniority shall be determined as follows :- (a) a member of service appointed by direct recruitment shall be senior to a member of service appointed by promotion or by transfer. (b) a member of service appointed by promotion shall be senior to a member of service appointed by transfer; (c) in the case of members of service appointed by promotion or by transfer, seniority shall be determined according to the dates of appointments from which they were promoted or transferred; and (d) in the case of members of service appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a member, who was drawing a higher rate of pay in his previous appointment; and if the rates of pay drawn are also the same, then by the length of their service in the appointment; and if the length of such service is also the same, the older member shall be senior to the younger member.” This rule of seniority is to be followed by making recruitment by way of promotion under Section 11 (1) but while making an appointment under Civil Writ Petition No. 15023 of 2010 -9- Rule 11 (2)(c) it is the Minister keeping in view the administrative exigency can make a departure and make selection on the basis of merit-cum-seniority and ignoring the claim of the person, who is senior. Respondent No.3 falls in this category. Even though he had 4-½ years experience as Senior Assistant. The Speaker while exercising the power as under Rule 11(2)(c) selected him on the basis of merit-cum-seniority. The petitioner being senior cannot seek a direction to select him being senior. The petitioner can claim promotion being senior when the power is being exercised under Rule 11(1) in the normal course of promotion. He can be promoted as per his seniority fixed under Rule 13. The judgments cited by the petitioner do not relate to a rule where special powers have been given for making selection by making a promotion based on merit- cum-seniority. But if in a given situation a candidate is not available then the Speaker exercises powers under Section 20 can record reasons and relax qualification of promotion. Since the present case does not relate to promotion made under Rule 11(1) there was no requirement of the Speaker to record reasons for relaxation of qualification. While making promotion under Section 11 (2)(c) the Speaker can make a selection on the basis of merit-cum-seniority. As per sub Clause VI of Appendix 'B' the Speaker can appoint two Senior Assistants with seven years experience. In the present case respondent No.2 as per Clause VI is duly qualified. Since respondent No.3 is concerned, he has been promoted exercising powers under Rule 11(2)(c) on the basis of merit-cum-seniority. As far as respondent No.4 is concerned his promotion is conditional as it was on account of the fact that Anil Viz was suspended. He is to revert back as and when Mr. Anil Viz has departmental proceedings are completed but the petitioner in the event of suspension of Anil Viz the petitioner could not be appointed as Research Officer. He belongs to a different cadre. Promotion of respondent No.4 is Research Officer is not liable to be interfered as it is conditional. Civil Writ Petition No. 15023 of 2010 -10- No merits. Dismissed. 23.8.2011 ( RITU BAHRI ) Vijay Asija JUDGE