C.W.P No. 1694 of 2009 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 1694 of 2009 Date of decision : May 01, 2009 V.S.Siwach ...... Petitioner (s) v. State of Haryana and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. D.S.Rawat, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG Haryana for respondents No.1 and 2. *** 1. Whether Reporters of Local Newspapers 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 ? *** AJAY TEWARI, J The petitioner has challenged the action of respondents No.1 and 2 whereby respondent No.3 was taken on deputation as Chief Engineer without considering the case of the petitioner who was an eligible departmental candidate. The admitted facts are that the petitioner was promoted as Superintending Engineer on 17.3.2004. Since there are no service rules pertaining to Class I Engineers in the Panchayat and Development Department Haryana, all promotions to the posts of Superintending C.W.P No. 1694 of 2009 ::2:: Engineer, Chief Engineer and Engineer-in-Chief are being made as per the Haryana Service of Engineers, Class I, Public Works Department (Buildings and Roads Branch), (Public Health Branch) and (Irrigation Branch) Respectively Act, 1995 (for short “the Act”). The relevant Section 9(3)(c) of the Act reads thus :- “9(3) A member of the Service shall not be eligible for promotion to the rank of- (a) xx xx xx (b) xx xx xx (c) Engineer-in-Chief and Chief Engineer unless he has rendered three years Service as Superintending Engineer: Provided that, if it appears to be necessary to promote an officer in public interest, the Government may, for reasons to be recorded in writing, either generally for a specified period or in any individual case, reduce the period specified in clauses (a), (b) or (c) to such an extent as it may deem proper.” Learned counsel for the petitioner has argued that w.e.f 16.3.2007, the petitioner was eligible for promotion as Chief Engineer. However, vide order dated 28.2.2007, respondent No.3 was sent on deputation to the Panchayat and Development Department Haryana on his promotion as Chief Engineer. Counsel for the petitioner has contended that on 16.3.2007, it was incumbent on respondents No.1 and 2 to consider the case of the petitioner for promotion and, if he was found suitable, to repatriate respondent No.3 and post the petitioner in his place. He has relied upon a Division Bench judgment of this Court in Union of India C.W.P No. 1694 of 2009 ::3:: through Secretary to Govt. of India and others vs Puranjit Singh and another, 2008(2) RSJ 196. In Chandigarh Administration vs K.K.Jerath, 1994(Supp)(3) SCC 582, the Hon'ble Supreme Court held as follows :- “.......The rules cannot be understood to confer an unfettered discretion in the State Government or the appointing authority to appoint any person from outside to the exclusion of a person from the cadre unless it is found that the person concerned is not eligible and if eligible then not suitable.....” Resultantly, this petition succeeds. Respondents No.1 and 2 are directed to consider the case of the petitioner for promotion to the post of Chief Engineer w.e.f 16.3.2007 and, if he is found suitable, to post him to that position by repatriating respondent No.3. Needful be done within three months from the receipt of a certified copy of this order. ( AJAY TEWARI ) May 01, 2009. JUDGE `kk'