IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.12932 of 1993 Date of decision:01 .02.2010 Yusaf Ali, Senior Assistant, MARKFED Vanaspati and Allied Industries, Khanna. ....Petitioner versus MARKFED through its Managing Director, Chandigarh and others. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.A.P.Bhandari, Advocate, for the petitioner. Ms. Rachna Arora, Advocate, for Mr. Amar Vivek, Advocate, for respondents 1 and 2. Mr. G.S.Punia, Advocate, for respondent No.3. ---- 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 ? ---- K.Kannan, J. (Oral) 1. The petitioner seeks to challenge the order dated 06.05.1993 and 03.06.1993 (Annexures P-6 and P-8 respectively) promoting the 3rd respondent to a higher post on the assumption that he was working as a Senior Assistant in MARKFED, Vanaspati and Allied Industries, Khanna Plant, Khanna. The petitioner's contention is that the 3rd respondent was a Field Officer in MARKFED Canneries at Jalandhar and he had come on transfer to MARKFED Vanaspati at his own request. He appears to Civil Writ Petition No.12932 of 1993 - 2 - have been appointed on 07.03.1978 but there is no documentary proof of any such request in the year 1978 or the fact that he had been appointed as a Senior Assistant in the year 1978. The contention of the petitioner is that the channels of promotions are different and as per the Common Cadre Rules framed for the MARKFED, the channel for promotion to the post of Superintendent, which is a Group-A post is from the post of the Senior Assistant with 12 years experience, while the promotion post for a Field Officer is a Branch Officer. Admittedly, the 3rd respondent was a Field Officer and when he was coming on a transfer to Khanna in the year 1978, he could have been appointed only as a Field Officer and he could have been promoted only to the post as a Branch Manager in that stream as contemplated by the Rules and he could not have been appointed as a Senior Assistant in the cadre with promotion avenue to the next higher post as the Superintendent. 2. The contention on behalf of the MARKFED and the 3rd respondent are that both the petitioner and the respondents have already superannuated from service and the writ petition challenging the promotion that was made in the year 1993 would not survive for consideration any further. It is further contended that although there are no specific orders pointing out to the fact that he was appointed as a Senior Assistant in the year 1978, the fact has been referred to in the written statement. There has been no denial for the same by the petitioner. 3. The letter to the 3rd respondent referring to the fact that he was willing to be placed at the tale end of the seniority list if he was Civil Writ Petition No.12932 of 1993 -3 - transferred from Jalandhar to Khanna has come to be issued nearly 10 years after the incident when on 02.07.1987, the MARKFED has secured a letter from the 3rd respondent that he could be placed in the tale end of the seniority list. Probably this letter was obtained in order to make a basis for an order which they were issuing on 26.09.1988 that the 3rd respondent was being absorbed against a vacant post of a Senior Assistant in his own scale of Rs.670-1080 with effect from the date of his joining in MARKFED vanaspati on 07.03.1978. The petitioner's grievance is that a person such as, the 3rd respondent, who was a Field Officer and who had been appointed as such in MARKFED Canneries, could not have been appointed as a Senior Assistant in MARKFED Vanaspati. Although the order dated 26.09.1988 refers to his alleged appointment as a Senior Assistant to be effective from 07.03.1978 in a subsequent order issued on 01.07.1989, purported to have been issued under the provisions of the Punjab Civil Services Revised Scales of Pay Rules, 1988, when the revision of pay scales were applied to various classes of persons, the petitioner has been referred to as an Assistant while the 3rd respondent had been referred to as F.O.(Field Officer). The contention therefore was that at no point of time could the 3rd respondent have been considered for the post of a Senior Assistant. The learned counsel for the petitioner would further contend that the petitioner was also officiating as the Senior Superintendent in the year 1990 to a higher post by the order of the General Manager dated 28.04.1990 and if at all the 3rd respondent had been considered as having been appointed as a Senior Assistant from the year 1978 itself, under the normal Civil Writ Petition No.12932 of 1993 - 4 - circumstances only the 3rd respondent would have been considered for such officiation. 4. It is too well established that the mere fact that a person officiates in a higher post shall not be entitled to any preference or obtain any such privileges for being considered when a promotion to a regular post is given. I am unable to accommodate the contention of the petitioner that he was entitled to be considered to be promoted when vacancy fell due for consideration for the promotion post. The relevance to such a contention however could be seen from another point of view namely, that the 3rd respondent, who had been a Field Officer, had been appointed to a higher post and the petitioner was not considered for such post at the time when the 3rd respondent was appointed. The learned counsel for the MARKFED however, states that the petitioner could not have been considered for appointment even at the time when the promotion was given to the 3rd respondent by the only fact that the petitioner did not have the requisite number of years of experience at that time and therefore, he was ineligible to hold that promotion post. If the 3rd respondent had been a junior and he had been promoted then it could have been possible for the petitioner to contend that he should be given a notional promotion from the date when the junior was promoted. In this case, the 3rd respondent was not a junior but was promoted to a higher post from an ex-cadre post. The learned counsel appearing for the 3rd respondent would submit that the duties and responsibilities of a Field Officer and Senior Assistant were the same and therefore, even if it were to be contended that he was appointed only as a Field Officer on a Civil Writ Petition No.12932 of 1993 - 5 - transfer to Khanna, when he was placed at the tale end of seniority, it should be only considered that he held the post lawfully to a post equivalent to that of Senior Assistant and the promotion granted to him under such a circumstance, was justified. There is no basis for me to assess that the post of the Field Officer and the Senior Assistant carried equal responsibilities. On the other hand, I find even the scales of pay for Field Officer and Senior Assistant were different and the stream of promotions were also different as per the Common Cadre Rules. The petitioner could not have lawfully been appointed to the promotion post in the year 1992 when a vacancy fell and when the 3rd respondent was appointed. In my view, for the wrong committed by the MARKFED for granting an appointment to the 3rd respondent who was drawn for a different stream could still not avail to the petitioner’s benefit except that the petitioner could be treated as entitled to the promotion post and appointed as such on the completion of 12 years, namely from 03.05.1995. 5. It is contended by the learned counsel for the 3rd respondent that the petitioner had obtained voluntary resignation even before the date and the petitioner cannot be granted even the notional promotion and the monetary benefits. There is no basis for making such an argument. Through this writ petition, the petitioner shall not have the relief of setting aside the promotion which was granted to the 3rd respondent and was also be superannuated from the post. If the petitioner had voluntary retired or superannuated before 03.05.1995, no relief would be possible for the petitioner. However, if the petitioner had Civil Writ Petition No.12932 of 1993 - 6 - continued in service upto the completion of 12 years from the date when he held the post as an Assistant then he shall be entitled to a notional consideration of promotion to the higher post as a Superintendent and he shall be granted monetary benefits from 03.05.1995 till the date of superannuation. It shall also form the basis for his computation of retrial benefits and the notional refixation of the scale of pay admissible for the promotion post will determine also all the monetary benefits accruing to such post, which shall be paid with simple interest at 6% per annum. The writ petition is ordered in the above terms. The entire exercise of consideration of the benefits as made in this order shall be worked by the respondents 1 and 2 within a period of 12 weeks from the date of receipt of the copy of the order. (K.KANNAN) JUDGE 01.02.2010 sanjeev