IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civl Writ Petition No.6683 of 2006 Date of Decision : August 16, 2011. Gurnaib Singh .....Petitioner versus State of Punjab and others .....Respondents Civl Writ Petition No.11643 of 2006 Kushvinder Kumar and others .....Petitioners versus State of Punjab and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.S.S.Brar, Advocate and Mr.A.S.Khaira, Advocate, for the petitioners. Ms.Sudeepti Sharma, DAG, Punjab. Mr.Arun Takhi, Advocate, for respondent No.9 (In CWP No.6683 of 2006) Mr.J.S.Bhatia, Advocate, for respondent Nos.10&11 (in CWP No.11643 of 2006). -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) This order shall dispose of CWP Nos.6683 and 11643 of 2006 as the issues involved in both cases are common in nature. For brevity, the facts are being extracted from CWP No.6683 of 2006. CWP No.6683 of 2006 and CWP No.11643 of 2006 [2] The petitioner is working as a Patwari in the Revenue Department, Government of Punjab, since 14.5.1992. He was appointed in Tehsil Derabassi which, at that time, was a part of Patiala Revenue District. The new revenue district of SAS Nagar Mohali was carved out in April, 2006 by transferring two Tehsils from District Roopnagar (SAS Nagar Mohali and Kharar) and one tehsil from District Patiala (Derabassi). The petitioner's services also stood transferred to the newly carved out district of SAS Nagar Mohali. The controversy involved in this case pertains to the petitioner's entitlement for promotion as Kanungo. It is not in dispute that earlier the Punjab Kanungo Service (State Service Class-III) Rules, 1976 (hereinafter referred to as “1976 Rules”) used to govern appointment to the post of Kanungo. Rule 8 (ii) of these Rules laid down that no person shall be appointed by promotion from amongst the Patwari Moharrir and the Patwaries unless he has qualified the departmental examination in Appendix 'C' to these rules. The Appendix 'C' used to permit a permanent Patwari to appear in the departmental examination. The petitioner on completion of two years' probation period in May, 1994, appeared in the departmental examination held in June, 1996 and qualified the same. He thus became eligible for promotion to the post of Kanungo. It is also not in dispute that the above stated 1976 Rules were later on repealed on 9.11.1994 and a new set of statutory service rules known as the Punjab Kanungo (Class III) Service Rules, 1994 (hereinafter referred to as “1994 Rules”) came into force. The Patwaries were not CWP No.6683 of 2006 and CWP No.11643 of 2006 [3] required to pass any departmental examination for promotion against 85% promotional quota for the posts of Kanungu under Rule 8 (1) (ii) (b) of these Rules. It is well settled and there can be no exception that all those 'vacancies' in the cadre of Kanungo to be filled in by promotion, which arose and became available before 9.11.1994 were to be filled in from amongst the Patwaries who had qualified the departmental examination in accordance with Rule 8 (ii) of the 1976 Rules. The vacancies arising after 9.11.1994 are to be governed by the new set of Rules, i.e., 1994 Rules. It may also be noticed here that when the 1976 Rules were in force, the respondents issued some executive instructions dispensing with the condition of passing of departmental examination for promotion as Kanungo laid down under Rule 8 (2) of 1976 Rules. These Instructions dated 10.12.1982 were quashed by this Court in CWP No.6849 of 1994, decided on 29.3.1995 and the appeal preferred by the State was also dismissed. The Deputy Commissioner, SAS Nagar Mohali in his reply affidavit dated 8.8.2006 has taken a categoric stand that “in compliance with the above order of the Hon'ble Punjab and Haryana High Court, the District Collector, Patiala vide order No.9/S.K./B.C.1 dated 13.2.2003 promoted the senior most Patwari of the District Patiala who qualified the requisite Kanungo test. But the petitioner was not promoted as he was very junior to the promoted Patwaries.” The petitioner, however still insists that it is apparent from the CWP No.6683 of 2006 and CWP No.11643 of 2006 [4] subsequent additional affidavit filed by the respondents that there were some more vacancies in the cadre of Kanungoes in District Patiala which remained available till the new set of Rules came into force w.e.f. 9.11.1994. The fact as to whether there was any vacant post of Kanungo prior to 9.11.1994 in the Revenue District of Patiala to be filled in by promotion from amongst the Patwaries who had qualified the departmental examination under Rule 8 (2) of 1976 Rules, is a question of fact to be gone into and determined by the competent authority. As noticed earlier, if there were such vacancies available, the same were obviously to be filled in as per 1976 Rules. At the cost of repetition, it is clarified that the new Rules came into force w.e.f. 9.11.1994 and are perspective in nature. These Rules shall regulate the appointments against the vacancies which have arisen after the enforcement of these Rules. The petitioners have no claim for promotion in the newly carved out District SAS Nagar Mohali as the said district came into existence in April, 2006 i.e., much after the new Rules came into force w.e.f. 9.11.1994. The writ petitions are accordingly disposed of with a direction to the Deputy Commissioner-cum-Collector, Patiala to reconsider as to whether or not there were vacant posts in the cadre of Kanungo prior to 9.11.1994 and which were to be filled in by promotion from amongst the qualified Patwaries. If any such vacancy is found to have remained unfilled, the same shall be filled in by promotion from amongst the qualified Patwaries strictly as per their inter se seniority. The needful shall CWP No.6683 of 2006 and CWP No.11643 of 2006 [5] be done within a period of six months from the date of receiving a certified copy of this order. Dasti. August 16, 2011 (SURYA KANT) Mohinder JUDGE