CIVIL WRIT PETITION NO.20339 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.20339 of 2002 DATE OF DECISION: JULY 29 , 2010 Narender Kumar Jain .....Petitioner VERSUS The State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH PRESENT: Mr. V.B. Aggarwal, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner Narender Kumar Jain has filed this petition seeking mandamus for his consideration for promotion to the post of Senior Scientific Assistant (Documents). The petitioner has joined the Forensic Science Laboratory, Madhuban as Scientific Assistant (Information) on 20.7.1998. He claims that since the date of his appointment, he was directed to work in the Document Division and he has so worked as Scientific Assistant (Documents). In this regard, the petitioner makes a reference to a certificate dated 12.8.2002 issued by the Assistant Director, Forensic Science Laboratory, Madhuwan, which is annexed CIVIL WRIT PETITION NO.20339 of 2002 -2- as Annexure P-1. The petitioner was again made work in the Document Division w.e.f. 9.2.2000. Even written orders were passed in this regard directing him to work in the Document Division. The copies of the orders are placed on record as Annexures P-2 &P- 3. Accordingly, the petitioner claims that he has 4 years experience as Scientific Assistant (Documents) and also fulfills the requisite educational qualification, but was not being considered for the post of Senior Scientific Assistant (Documents). The cause for him to invoke the jurisdiction was that the Haryana Staff Selection Commission issued an advertisement on 27.7.2002 (Annexure P-4), inviting applications for appointment to the post of Senior Scientific Assistant (Documents) by way direct of recruitment. The grievance of the petitioner is that he was fully eligible for consideration and by ignoring his claim, the appointment to the post of Senior Scientific Assistant (Documents) was being made by way of direct recruitment. The petitioner makes reference to the Haryana Forensic Science (Group C Scientific Staff) Service ( First Amendment) Rules, 1995 (hereinafter referred to as the ' Service Rules') in this regard to urge that he was fully eligible for consideration before the other source was utilized for making appointment by way of direct recruitment. The petitioner states that he had the necessary educational qualification i.e. M.Sc. Statistics with 85.8% marks and had a sufficient experience and was fully eligible for promotion, but his claim was not considered. To strengthen his claim for consideration, the petitioner would also refer to the promotion of Smt. Renu Sinha, who was also appointed as CIVIL WRIT PETITION NO.20339 of 2002 -3- Scientific Assistant (Information), but was promoted as Senior Scientific Assistant (Documents) on 2.5.1986. He would give another example of Jagdish Ram,, who was also promoted from Scientific Assistant (Scene of Crime) to the post of Scientific Assistant (Chemistry). The petitioner has, accordingly, filed the present writ petition to impugn the action of the respondents, ignoring his claim for consideration for promotion and by making resort to direct recruitment. Counsel for the petitioner would refer to Rule 6 of the Service Rules, which regulates the consideration for promotion to the post of Senior Scientific Assistant Rule 6 is reproduced as under:- “Rule 6. In the case of Senior Scientific Assistant (Documents)-- (i) by promotion from amongst Scientific Assistants; or (ii) by direct recruitment; or (iii) by transfer or deputation of an official already in service of any State Government or the Government of India. Sr. Designation Academic qualifications Academic No. of posts and experience, if any, qualification & for direct recruitment. Experience, if any for appointment other than direct recruitment (1) (2) (3) (4) -------------------------------------------------------------------------------------------- 6. Senior Scientific i) M.Sc. At least 2nd i) B.Sc. at least Assistant Division in any one 2nd Division Medical (Documents) the subjects, i.e. Non-Medical group. Physics, Chemistry, Mathematics, Statistics ii)4 years experience Forensic Science, as Scientific CIVIL WRIT PETITION NO.20339 of 2002 -4- Botany or its equivalent Assistant. OR ii) 1 years research and i) M.Sc. at least and analytical 2nd Division in experience in any one any one of the of the above mentioned subjects, i.e. subjects Physics, Chemistry Mathematics, Statistics, Forensic Science, Botany from a recognised University or its equivalent degree ii) 1 year experience as Scientific Assistant.” In response to the notice of motion, reply is filed. It is stated that Scientific Assistant (Information) and Scientific Assistant (Electrical) were isolated posts and had not been merged with the specialized Division/Section. Since they were seeking proposal regarding merging these posts i.e. Scientific Assistant (Information) with Documents Division and the Scientific Assistant(Electrical) with Scene of Crime unit, was considered and approved by the Director General of Police, Haryana, on 30.3.2005. It is further disclosed that Scientific Assistants serving in any discipline of the Laboratory were entitled to be considered for promotion to the post of Senior Scientific Assistant (General) on the basis of their seniority-cum- merit. Having stated so, the claim of the petitioner is denied on the ground that the Scientific Assistant (Information) is not a part and parcel of the sanctioned strength of Documents Division. They are assigned to perform different duties and accordingly, the claim made CIVIL WRIT PETITION NO.20339 of 2002 -5- in the present petition is disputed. However, during the pendency of the writ petition, the order promoting the petitioner provisionally as Senior Scientific Assistant (Document) in the pay scale of Rs.9300- 34800+ 4600 as grade pay has been issued, but this is subject to the final outcome of the present writ petition. The petitioner has, thereafter, filed amended writ petition to make a claim for the promotion from the date of filing the petition. Rule 6 reproduced above clearly provides two sources of promotion to the post of Senior Scientific Assistant. Scientific Assistant is the first source of promotion for the post of Senior Scientific Assistant. Second source which is an alternative to the first source is by way of direct recruitment or by transfer or on deputation. The submission that the respondents would not be bound to consider the claim of the petitioner for promotion and could directly recurit a person for the post, would not be fair and justified. The petitioner, who is eligible for consideration is available for promotion, but was being ignored without any reason. The respondents cannot deny the right of consideration only on the ground that there is another source of promotion available. It will sound unfair and arbitrary. In case, one source is completely ignored for the purpose of consideration for promotion and appointment or promotion is made only by invoking the other source, it would sound an arbitrary exercise of power. The manner in which rule has been formed, would give an indication that the first source of promotion should be Scientific Assistant and in case, some eligible person is not available, only then the respondents would be well justified in making the promotion or CIVIL WRIT PETITION NO.20339 of 2002 -6- appointment by way of direct recruitment. In any case, this question now would become academic as the petitioner has since been granted promotion. The submission that the petitioner was not eligible for promotion, would not have much significance now. It is not denied that the petitioner though was appointed as Scientific Assistant (Information), but has worked as Scientific Assistant (Documents). It will be unfair now to consider him ineligible because he may lose his chance of consideration even in the line of Scientific Assistant (Information) on the ground that he worked in Document Section. The promotion granted to the petitioner, therefore, appears just reasonable and to this extent, the relief claimed in the writ petition, has been allowed and granted accordingly. No further order is required to be passed. The writ petition is, accordingly, disposed of. Promotion granted to the petitioner, has been rightly granted and shall not be changed in any manner with the disposal of the writ petition. The petitioner would be allowed to continue on the promoted post of Senior Scientific Assistant (Documents). July 29, 2010 ( RANJIT SINGH ) monika JUDGE