CWP No. 18680 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 18680 of 2010 Date of decision 13 .10.2010 Iqbaljit Singh and others ...Petitioners Versus State of Punjab and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Dharam Vir Sharma, Sr. Advocate with Mr. Ashwani Sharma,,Advocate for the petitioners 1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The petitioners who have been working on the post of Deputy District Attorney in the respondent State of Punjab and are yet to acquire the requisite experience of three years for promotion to the post of District Attorney as laid down in the Rules known as Prosecution and Litigation (Group 'A') Service Rules, 2002 (for brevity 'the Group 'A' Rules) have challenged the proviso to Rule 19 challenged the proviso to Rule 19 of the Punjab Civil Service (General and Common conditions of Service) Rules, 1994 which are claimed to be applicable to them. According to Rule 5 read with Appendix 'B', Deputy District Attorney has been made eligible for promotion to the post of District Attorney if he has experience of working as such for a minimum period of three years. It is admitted case of the petitioners that they do not fulfill the requirement of three years experience. However, they have challenged the re-employment/ extension given to CWP No. 18680 of 2010 2 private respondents 3 and 4 by the respondent State of Punjab. The petitioners have claimed that the requirement of experience is relaxable. In that regard he invited our attention to Rule 2(2) of the Rules which provides that those expressions used in Group 'A' Rules if has not been defined then they shall have respective meaning assigned to them as given in the Punjab Civil Service (General and Common Condition of Service) Rules, 1994 (for brevity 'the 1994 Rules'). Relying on Rule 19 of the 1994 Rules, Mr. Sharma has argued that but for proviso relaxation to the petitioners could have been granted. Therefore, the petitioners have challenged the constitutional validity of the proviso to Rule 19 of the Rules. The first argument raised by Mr. D.V.Sharma is that Rule 19 which deals with relaxation also bars grant of relaxation in respect of educational qualification and experience. According to the learned counsel the proviso barring the grant of relaxation suffers from vice of arbitrariness and is violative of Articles 14 and 16 (1) of the Constitution. In that regard reliance has been placed on the observations made in paras 10 and 11 of the judgement of the Hon'ble Supreme Court in Motor General Traders v. State of A.P. 1984(1) SCC 222 to argue that the classification has been arbitrary. The second submission made by the petitioner is that there is complete bar on re-employment or grant of extension after attaining the age of superannuation and therefore extension given to respondent nos. 3 and 4 vide Annexures P.5 and P.6 is required to be declared as unlawful. He has placed reliance on the instructions dated 30.3.1979 (P.8), instructions dated 23.11.1990 (P.9), instructions dated 6.5.1997 (P.10) and DO Letter dated 11.8.2008 (P.11). His last submission is that persons junior to the petitioners have been given officiating charge of the post of District Attorney as CWP No. 18680 of 2010 3 disclosed in para 11 of the petition. Having the learned counsel and perusing the paper book with his able assistance, we are of the considered opinion that no case is made out for interference of this Court. It has come on record that the petitioners are not eligible for promotion to the post of District Attorney as they lack adequate experience of three years to consider them for promotion. Their dates of promotion as Deputy District Attorney are discernible from the tentative seniority list dated 22.7.2009 (P.2) in the following table. Name Date of promotion as Deputy District Attorney Gurdeep Singh Sandhu 30.1.2009 Surinder Kumar Rao 30.1.2009 Promila Kumari Jain 30.1.2009 Ashwani Kumar Bedi 30.1.2009 Amarjit Singh 30.1.2009 A perusal of the aforesaid table would show that all the petitioners were promoted on the post of Deputy District Attorney in the year 2009 and they are yet to acquire three years experience. Obviously they are ineligible to be considered for promotion to the post of District Attorney as they do not fulfill the requisite experience provided by Rule 5 read with Appendix 'B'. The aforesaid rule reads thus: “ 5. Method of appointment and qualifications.- (1)All appointments to the Service shall be made in the manner specified in Appendix 'B'. (2)No person shall be appointed to a post in Service unless he possesses the qualifications and experience specified against the post in Appendix 'B'. (3)Appointment to the Service by promotion shall be made on CWP No. 18680 of 2010 4 seniority cum merit basis, but no person shall have any right to claim promotion on the basis of seniority alone. Appendix 'B' S.No. Designation of post Method of appointment, qualifications and experience for appointment by promotion 1 2 5 5 District Attorneys From amongst the Deputy District Attorneys who have an experience of working as such for a minimum period of three years. A perusal of the aforesaid rules alongwith appendix 'B' show that no person shall be appointed to the post of District Attorney unless he posses the qualification and experience specified against the post in Appendix 'B' of Group 'A' Rules do not provide for any relaxation. The argument of Mr. D.V.Sharma, learned senior counsel is that by virtue of sub rule 2 of Rule 2 of Group 'A' Rules, the General Condition Rules 1994 becomes applicable and therefore relaxation could have been granted by virtue of Rule 19 of 1994 Rules. He has attacked the constitutional validity of the Rule. and the proviso is unconstitutional. Firstly, it is doubtful whether the 1994 Rules would be attracted in its application to Group ' A' Rules by reading Rule 19 thereof for the purposes of relaxation. In that regard Rule 2(2) of Group 'A' Rules needs to be examined which reads thus: “ 2. Definitions. (1) In these rules, unless the context otherwise requires. - - - (a) to (d) xx xx xx (2) The expressions used in these rules, but not defined in these rules shall have the respective meanings assigned to these expressions in the Punjab Civil Services (General and Common CWP No. 18680 of 2010 5 Conditions of Service) Rules, 1994.” A perusal of the aforesaid Rule would show that for the purposes of meaning of those expression which have not been defined in Group 'A' Rules such like expressions could be interpreted by importing the meaning assigned to such expression in the 1994 Rules. The Group 'A' Rules do not contemplate that 1994 Rules would fill up the gaps wherever the Group 'A' Rules are silent. Therefore, we do not see any merit in the argument of the learned Senior Counsel for the petitioners that 1994 Rules would apply and the provisions of Rule 19 for relaxation of qualification is attracted. However, for the sake of arguments if the 1994 Rules are applied even then the petitioners are bound to fill the experience clause and relaxation cannot be claimed as a matter of right. Therefore, it may be profitable to read Rule 19 alongwith proviso which reads thus: “ 19. Power to relax.- Where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class or category of persons: Provided that the provisions relating to educational qualifications and experience, if any, shall not be relaxed.” A perusal of Rule 19 would show that government for reasons to be recorded in writing may relax any provision of 1994 Rules with respect to any class or category of persons wherever it is necessary or expedient so to do. However, he has to qualify in accordance with the main rules by granting relaxation in respect of educational and experience. A perusal of the aforesaid rule would show that provision with regard to experience cannot be relaxed. The argument of Mr. D.V.Sharma, learned Senior CWP No. 18680 of 2010 6 counsel for the petitioner based on paras 10 and 11 of the judgement rendered in the case of Motor General Traders (supra) does not advance the case of the petitioners because in paras 10 and 11 the classification theory as laid down by the Hon'ble Supreme Court in the case of Shri Ram Krishna Dalmia v. Shri Justice S.R.Tendolkar and others (1959) SCR 279 has been discussed. According to para 10 of the judgement the classification is required to be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have rationale relation to the object sought to be achieved by the statute in question. We confronted the learned Senior Counsel as to how these observations would apply to the facts of the present case because there was no beneficiary class created by granting extension/ re-employment to respondent nos. 3 and 4 by virtue of exercising relaxation under Rule 19 of the 1994 Rules. There was no satisfactory answer to the aforesaid observations made by the Court. It is thus obvious that in the case of petitioners the judgement in Motor General Traders case (supra) is not applicable even remotely to the facts of the present case. The other argument is that there is a bar for re-employment. It is not possible to accept that argument. On account of scarcity of District Attorneys and other prosecuting officers the work in the Court suffers. The extension has been granted by the impugned order dated 27.5.2010 to Shri Gurmit Singh Sandhu only on contractual basis till the approval of Council of Ministers,. Likewise Parminder Singh Brar has also been appointed on contractual basis till the approval of Council of Ministers. The Council of Ministers may have to take a decision with regard to complete bar on re- employment of superannuated employees. This seems to be a short term CWP No. 18680 of 2010 7 measure and seeks to sub serve the larger public interest. Accordingly, we are not impressed with the argument and reject the same. The third argument also suffers from complete obsession. The question of seniority in respect of current duty charge pales insignificant. It is well settled that current duty charge does not confer any right on an employee and that the principles of seniority are not required to be followed in such like cases. In that regard reliance may be placed on the following observations made in para 6 of the judgement of Hon'ble the Supreme Court rendered in the case of Rama Kant Shripad Sinai Advalpalkar v. UOI AIR 1991 SC 1145 “6. The third contention is that appellant's 'in charge' arrangements in the higher post had continued for so long a period that a determination of equivalence on the basis of his lower substantive post would become arbitrary. This contention ignores the fact that an 'in charge' arrangement is not a recognition of or is necessarily based on seniority and that , therefore, no rights, equities or expectations could be built upon it. The third contention is also unmeritorious.” There is a rationale for the aforesaid view because on account of administrative exigency if a senior working on a higher posts causes vacancy then current duty charge is given to the incumbent of a lower post to overcome the administrative exigency for a short period. It does not follow therefore that a senior man should be imported and chain of transfer be set in motion to give current duty charge in accordance with seniority. No other argument has been raised. As a sequel to the aforesaid discussion, this petition fails and CWP No. 18680 of 2010 8 the same is dismissed. (M.M.Kumar) Judge ( Ritu Bahri ) 13 .10.2010 Judge okg