IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8335 of 2000 Date of decision: 13th September, 2010 Dev Krishan … Petitioner Versus State of Punjab and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Vikas Bahl, Advocate for the petitioner. Mr. J.S. Puri, Additional Advocate General, Punjab for respondents No.1 and 2. None for respondents No.3 to 6. KANWALJIT SINGH AHLUWALIA, J. Petitioner, who was posted as a Cashier in Punjab Roadways, Jalandhar, has preferred the present writ petition with a prayer that order dated 11th January, 1996 (Annexure P-4), whereby case of the petitioner for promotion to the post of Assistant had been rejected, be quashed and a writ in the nature of certiorari be issued to the respondents to promote him as an Assistant with effect from 24th October, 1973, the date on which his junior Satpal Singh was promoted, along with all consequential benefits. Petitioner was appointed as a Conductor in Punjab Roadways, a State Government Undertaking, on 1st July, 1961. On 1st November, 1962, considering the seniority and conduct of the petitioner, he was promoted to the post of Assistant Cashier in the pay-scale of Civil Writ Petition No.8335 of 2000 Rs.110-250 and on 16th August, 1974, he was promoted as Cashier, the post on which he was working till the filing of present writ petition. It is pleaded in the writ petition that the Department of Punjab Roadways was maintaining a joint seniority list for Clerks, Assistant Accountants, Assistant Cashiers, Cashiers, Stenographers, Ledger Keepers and Steno Typists. According to the petitioner, this joint seniority list constituted a feeder cadre for promotion to the post of Assistant, Accountant, Preventive Maintenance Accountant and Junior Auditor. It is stated in the writ petition that at the time of initial appointment of the petitioner in the department, no rules were in force governing the services of the petitioner. However, later-on the Punjab Roadways Ministerial (State Service) Class III Rules, 1977 (hereinafter referred to as, ‘the Rules’) were adopted and made enforceable with effect from 2nd June, 1977. Counsel for the petitioner has relied upon a decision rendered by a Single Bench of this Court in ‘Krishan Dutt Sharma and others v. State of Punjab and others’ Civil Writ Petition No.3138 of 1972 decided on 24th November, 1981 to urge that for promotion to the post of Assistant, the joint seniority list was to be taken into consideration. In Krishan Dutt Sharma’s case (supra), Clerks in the department of Transport sought promotion as Assistants. The department took a stand that the Clerks were working as Assistant Accountants and therefore, they were only entitled to be promoted as Accountants. This Court has held that so long as the petitioners, being confirmed Clerks, held their lien against the said posts, even though they may be posted in any other capacity, they were entitled to be considered for promotion to the posts of Assistants. It further held that the mere fact that the petitioners were posted as Assistant Accountants would not take away their right for 2 Civil Writ Petition No.8335 of 2000 consideration for promotion to the posts of Assistants, as admittedly they were confirmed Clerks and were in the same cadre. The petitioner, in the present case, has furnished a Chart, according to which he was senior to Satpal Singh, Darshan Kumar, Sham Lal, Manmohan Singh, Inderjit Singh and Gurbachan Singh. It is stated that all these persons have died or have retired. Therefore, they are not made party to the present petition. It is further pleaded that there are no fixed posts of Assistants in the Department and in case the petitioner is promoted, none of his juniors will have to make way for him. It is stated that since the petitioner was not being given promotion to the post of Assistant, he filed a civil suit in the Court of Additional Senior Sub Judge, Jalandhar with a prayer that a declaration be made that the petitioner, being plaintiff, was entitled to be considered for promotion as an Assistant with effect from the date his juniors were promoted as Assistants. The Additional Senior Sub Judge, Jalandhar on 2nd January, 1991 dismissed the suit preferred by the petitioner. Aggrieved against the same, the petitioner filed an appeal on 14th February, 1991 and the Additional District Judge, Jalandhar, vide his judgment and decree dated 7th January, 1994, decreed the suit and held as under: “The mere fact that the appellant was working as Cashier, when clerks, Asstt. Cashiers, Ledger Keeper etc. form one seniority list, cannot be made as a ground to take away right of the plaintiff for consideration to the post of Assistant when he is from the same cadre. It is clear from records that people junior to the appellant were promoted without their having qualified the Asstt. Grade Examination. The provisions of Asstt. Grade Examination Rules came into existence in 1984. Punjab Roadways Ministerial Class III Rules came into force w.e.f. 2.6.1977 and the right of the appellant could be considered for promotion much earlier to these dates, when juniors namely S/Shri Satpal Singh, Iqbal Singh, Sham Lal were promoted. Shri Janak Raj Assistant 3 Civil Writ Petition No.8335 of 2000 of the office of Director State Transport, Punjab who appeared as DW1 stated on oath that there was only one seniority list and that was Ex.D1. He also stated that above named persons Satpal Singh etc. who had been promoted as Assistants, had not passed the Assistant Grade Examination. It was admitted correct by him that no seniority list, after Ex.D1 had been prepared. He also admitted correct that promotions of cashier category were made. It is, therefore, not understandable as to why the appellant who was senior was not considered for promotion when no examination was required to be passed and when juniors to him were promoted without passing any such examination. I am, therefore, clearly of the view that suit of the plaintiff deserves to be decreed and the same is hereby decreed with no order as to costs. The appeal is allowed. Decree Sheet be prepared. File be consigned to record room.” State of Punjab had filed Regular Second Appeal bearing No.2503 of 1994, which according to the office order (Annexure P-4) dated 11th January, 1996 issued by the Department, was dismissed on 21st March, 1995 and the SLP filed by the department was also dismissed on 28th August, 1995. To comply with the directions of the Additional District Judge, Jalandhar, who had decreed the suit, the competent authority, i.e. the Director, State Transport, Punjab passed an order (Annexure P-4) dated 11th January, 1996 and rejected the claim of the petitioner by observing as under: “Keeping in view the above circumstances, and in accordance with the prayer made in the civil suit Sh.Dev Krishan, Cashier, is to be considered for promotion to the post of Assistant from the date from which Sh. Satpal Singh was promoted as Assistant i.e. 24.10.73. At that time 1970 Draft Rules were applicable and for the promotion to the post of Assistant the following conditions were applicable: Qualification and experience, if any for promotion: 4 Civil Writ Petition No.8335 of 2000 i) Matric ii) Five years experience as Clerk/Stenographer/ Steno-typist. Since Sh.Dev Krishan, Cashier’s initial appointment was as Assistant Cashier, whereas Shri Satpal Singh’s initial appointment was as Clerk, therefore, in the above mentioned circumstances and keeping in view the rules it is decided that Shri Dev Krishan, Cashier is not fit for promotion to the post of Assistant and thus after considering his case it is consigned to the record room. Sd/- (S.S.Channi) Director, State Transport, Punjab” The petitioner has assailed the order (Annexure P-4) and has stated that even though the Additional District Judge, Jalandhar had held that there is a common seniority list, a grave error has been committed by the competent authority by denying promotion to the petitioner to the post of Assistant by observing that as per the draft rules, he could not be promoted. Counsel for the respondent-State has relied upon Rule 9(c) of the Rules, which reads as under: “9(C). In the case of Assistant including Preventive Maintenance Assistant: i) 20 percent by direct recruitment; and ii) 80 percent by promotion from amongst Stenographers, Clerks, Ledger Keepers and Steno-typists; or iii) By transfer or deputation of an official already in service of Government of a State or Government of India, if a suitable candidate is not available by the methods referred to in sub clause (i) and (ii).” Counsel for the State submitted that as per provision of Rule 9(c) of the Rules, the post of Cashier was not a feeder cadre for promotion to the post of Assistant. It is further stated that the petitioner 5 Civil Writ Petition No.8335 of 2000 was promoted as an Assistant Cashier and then a Cashier, therefore, he constituted a different cadre than the Clerks, Stenographers, Ledger Keepers and Steno-typists. It is stated that for a Cashier, the avenues for promotion are different as there is a provision in the Rules that 20 percent posts of the Junior Auditors are to be filled-up by direct recruitment and 80 percent by promotion from amongst the Assistant Accountants, Cashiers and Assistant Cashiers. Mr.Vikas Bahl, Advocate appearing for the petitioner, has stated that the Rules were only draft Rules and were not adopted by the department. No Notification was issued to this effect. Learned counsel has placed reliance upon ‘Manorma Devi v. State of Punjab and others’ 2006(1) SCT 21, wherein a Division Bench of this Court has held that till the draft rules are notified, the same cannot be relied upon. Further reliance has been placed upon a judgment rendered by Hon’ble the Apex Court in ‘Vimal Kumari v. State of Haryana’ 1998(4) SCC 114, to contend that the draft rules, which were lying in a frozen state, cannot be utilized for regulating the services of the employees working in the department. It is an admitted case of the parties that prior to adoption of the Punjab Roadways Ministerial (State Service) Class III Rules, 1977, no rules were enacted and the department was acting upon the draft rules. Thus, the draft rules were not in a frozen state, as it is evident that subsequently, the draft rules were adopted with effect from 2nd June, 1977 and were notified as rules. From a perusal of the impugned order, it is also discernable that in the year 1970, the draft rules were introduced. As per the draft rules, which were subsequently made the Rules, the post of Cashier constituted a feeder cadre for promotion as Accountant and Junior Auditor, whereas Clerks, Stenographers and Ledger Keepers became the feeder cadre to the post of Assistants. The draft rules 6 Civil Writ Petition No.8335 of 2000 provided different channels for promotion. Any promotion made from the cadre of Cashier to the post of Assistant before the year 1970 cannot bind the department. Thus, no fault can be found with the impugned order, as the same is in consonance with the provisions of law. Hence, there is no merit in the present writ petition and the same is hereby dismissed, with no order as to costs. [KANWALJIT SINGH AHLUWALIA] JUDGE September 13, 2010 rps 7