In the High Court of Punjab and Haryana at Chandigarh Date of decision: April 17, 2009 1. LPA No. 211 of 2008 Mahavir Singh and others ... Appellants Vs. State of Haryana and others ... Respondents 2. LPA No.230 of 2008 State of Haryana and another ... Appellants Vs. Rajender Sangwan and others ... Respondents Coram: Hon'ble Mr. Justice Uma Nath Singh Hon'ble Mr. Justice A.N. Jindal Present: Mr. Girish Agnihotri, Sr. Advocate with Ms. Binayjit Sheoran, and Mr. Arvind Seth, Advocates for the appellants. Ms. Ritu Punj, DAG, Haryana. Mr. R.K. Malik, Sr. Advocate with Mr. Parveen Kumar Rohilla, Advocate for the respondents. A.N. Jindal, J This order shall dispose of L.P.A. No.211 of 2008 and L.P.A. No.230 of 2008. These appeals are directed against the order dated 29.11.2007 passed by the learned Single Judge in CWP No.3399 of 2002 filed by three Tehsil Welfare Officers (herein referred as 'the appellants') namely Mahabir Singh, Jai Singh and Roshan Lal Dalal. The virus of Rule 9 (1) of the Haryana Welfare of Scheduled Castes and Backward Classes Department LPA No. 211 of 2008 & LPA No.230 of 2008 -2- (Group-C) Rules, 1985 has been challenged whereby 20% from amongst Male Social Workers were to be promoted as District Welfare Officers. The learned Single Judge has struck down the Clause (iii) of Rule (1) of the Haryana Welfare of Scheduled Castes and Backward Classes Department (Group-C) Rules, 1985 and ordered that appointments to the post of District Welfare Officers be made only from Tehsil Welfare Officers and not from the Male Social Workers. The factual matrix of the case is that the service conditions for the post of Tehsil Welfare Officer are governed by the statutory rules called the Haryana Welfare of Scheduled Caste and Backward Classes Department (Group-C) Service Rules, 1997. According to Rule 9 (1) (f) of the said rules, 50% posts of Tehsil Welfare Officers are filled up by way of direct recruitment and 50% posts are filled up by way of promotion from amongst Male Social Workers under Appendix “A” of the said rules. The scale prescribed for the post of Tehsil Welfare Officer is Rs.1400-2600 which is now revised to Rs.5000-7850 w.e.f. 1.1.1996. Similarly, the pay scale of Male Social Worker was revised from 950-1500 to Rs.3050-4590. The qualifications for the post of Tehsil Welfare Officer by way of direct recruitment is graduate with Economics or Sociology as one of the subject from the recognized university or Master in Social Work and Hindi up to Matric standard. However, eligibility of Tehsil Welfare Officer from the post of Male Social Worker is 5 years experience. The aforesaid statutory rules are vividly clear to the effect that Male Social Worker is the feeder post of Tehsil Welfare Officer rather and has higher pay scale than Male Social Worker. The service conditions for the post of District Welfare Officer are also governed by the statutory rules called Haryana Welfare of LPA No. 211 of 2008 & LPA No.230 of 2008 -3- Scheduled Castes and Backward Classes Department (Group B) Service Rules, 1985 which depicts that 20% posts of District Welfare Officer would be filled from amongst the Male Social Workers. The anomaly created by the rules is that Male Social Worker who is initially in the pay scale of Rs.3050-4590 could not be promoted in the pay scale of Rs.6500-10500 (that of a District Welfare Officer) by ignoring the claim of the Tehsil Welfare Officer who are in the pay scale of Rs.5000-7850 and such promotion is clearly arbitrary and violative of Article 14 and 16 of the Constitution and if this rule is allowed to continue, then by adopting this arbitrary channel, some private respondents, junior to the petitioners- respondents (now respondents) would be promoted as District Welfare Officers while ignoring the claim of the seniors. Due to this anomaly, the respondents would suffer a loss, therefore, they have sought to quash Clause (3) of Rule ( (1) by declaring whole of the aforesaid rule as ultra-vires. The writ petition was allowed. Hence these appeals by the affected persons and the State Having scrutinized the impugned judgment and the records of the case and having heard the arguments of both sides, from the copy of Annexure P-1 of the seniority list, it transpires that Sant Ram and Nafe Singh respondents have been working against the post of Tehsil Welfare Officers and they were below in the seniority to the respondents as Tehsil Officers. They were earlier Male Social Worker if they had been promoted at that time against 20% quota of Male Social Worker against the post of Tehsil Social Worker, then certainly they will create an anomalous position. 20% promotion from Male Social Workers by ignoring promotional post of Tehsil Welfare Officer to the post of District Welfare Officer, which would LPA No. 211 of 2008 & LPA No.230 of 2008 -4- amount to double promotion and the persons who were otherwise not fit or meritorious to be promoted as Tehsil Welfare Officers reached the post of District Welfare Officers and on a higher scale and could become senior to the persons who had been with him as Male Social Workers and were earlier promoted as Tehsil Welfare Officers. Thus, the said rules certainly create an anomalous situation as no special test to judge merit has been fixed to provide a special jump of promotion. The principle that un-equals cannot be treated as equals applies in this case. Similar proposition arose in C.W.P. No.3304 of 1999 titled Hari Chand Clerk and others vs. State of Haryana, decided on 1.2.2002, wherein it was observed as under :- “The sequence of events clearly shows that unequals have been treated equally. Persons who were working on inferior posts were granted a higher scales w.e.f. April 29, 1995. Thereafter, they were given an exclusive right to be considered for promotion to the posts of Junior Accountants in supersession of the claims of persons who were senior to them. It is the admitted position that in the process persons like the petitioners who were senior were likely to be superseded. This was a clear violation of Articles 14 and 16 of the Constitution. Claims of persons who were senior in the cadre of Clerks were liable to be ignored on the allocation of quota to the grade 'A' Secretaries. To illustrate, Mr. Mohinder Singh-respondent No.5 in CWP No.3665 of 1999 had joined service as Secretary on March 10, 1976. He was upgraded as Secretary Grade 'A' on LPA No. 211 of 2008 & LPA No.230 of 2008 -5- April 29, 1995. He was placed at Sr. No. 86 in the seniority list of Clerks. As against this, the petitioners were at Sr. Nos. 5, 26 and 51 in the seniority list of Clerks. Thus, he was 81 steps junior to petitioner No.1. Despite that, he became eligible to be considered for promotion to the post of Junior Accountant before all the three petitioners who were otherwise senior to him by virtue of the quota of 30%. In any case, the juniors got a right to be considered for promotion before their seniors. This was clearly an infraction of the guarantee under Articles 14 and 16 of the Constitution. It cannot be sustained.” Similar controversy also arose in case Mrs. Shakuntala Sharma vs. High Court of Himachal Pradesh at Shimla and Another, JT 1994 (1) S.C. 335 wherein, the Apex Court observed as under :- “The basic weakness in the present Rule 10 is that it places two unequal sets of posts on par with each other and also prescribes qualifying service for the higher post as well. The posts of Deputy Superintendents and Revisors admittedly are posts higher than those of Senior Assistants and Translators respectively. If the incumbents of both the sets of posts are to be made eligible for promotion to the of Superintendent, no qualifying period of service can be prescribed for the incumbents of the posts of Deputy Superintendents and Revisors. If Senior Assistants and Translators are to be provided with promotional avenue, more posts of Deputy LPA No. 211 of 2008 & LPA No.230 of 2008 -6- Superintendents and Revisors which are above the posts of Senior Assistants and Translators respectively, should be created, and first the Senior Assistants and Translators have to be promoted. In fact, the appellant who was a Translator was first promoted to the post of Revisor. We are informed that no eligible Deputy Superintendent was available for being considered to the post of Superintendent and hence respondent No.2 who was holding the post of Senior Assistant (post below that of Deputy Superintendent) had to be promoted to the said post as he had put in six years' service as required by the said Rule 10. Rule 10 of the 1992 Rules is thus iniquitous and indefensibly unjust. It violates Article 14 of the Constitution since it treats unequals as equals and what is more gives unwarranted advantage to the incumbents of the higher posts. We, therefore, strike down Rule 10 of the 1992 Rules and direct the High Court to frame an equitable rule for promotion to the post of Superintendent in place of the said Rule. We have no doubt that whatever the anxiety of the High Court to provide promotional avenue to those who are stagnated, the promotion Rule will not be made in a manner which would deny to the incumbents of the higher posts promotion while giving unmerited advantage over them to those holding lower posts. The necessary consequence is that the promotion given to respondent N.2 stands quashed.” LPA No. 211 of 2008 & LPA No.230 of 2008 -7- Similar view was taken by the Apex Court in case T. Sham Bhat vs. Union of India and another, 1994 (4) SCL 598. No doubt remains in our mind so as to differ with the impugned judgment. Resultantly, the appeals fail and are hereby dismissed. (Uma Nath Singh) (A.N. Jindal) Judge Judge April 17, 2009 deepak