C.W.P.No.10931 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 18.01.2011 C.W.P.No.10931 of 1990 Gian Singh ....Petitioner(s) vs. The State of Haryana and another ....Respondent(s) C.W.P.No.1944 of 1990 Chander Mohan Gupta ....Petitioner(s) vs. The Commissioner and Secretary to Government of Haryana, PWD (Irrigation Branch), Chd. and another ....Respondent(s) C.W.P.No.7798 of 1990 Jai Lal Punia ....Petitioner(s) vs. The State of Haryana and others ....Respondent(s) C.W.P.No.2826 of 1990 J.R.Singla and another ....Petitioner(s) vs. The State of Haryana and another ....Respondent(s) *** CORAM:HON'BLE MR.JUSTICE RANJAN GOGOI, ACTING CHIEF JUSTICE HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Manish Soni, Advocate, for the petitioner in CWP No.10931 of 1990. Mr.Naveen Gupta, Advocate and Mr.S.K.Garg Narwana, Advocate, for the petitioner in CWP No.7798 of 1990. C.W.P.No.10931 of 1990 -2- Mr.Anil Rathee, Additional Advocate General, Haryana. *** Ranjan Gogoi, ACJ. (Oral) By this order, we propose to dispose of four writ petitions. For the facility of dictating the order, facts are being taken from C.W.P.No.10931 of 1990. The writ petitioner, who was holding the substantive post of Junior Engineer and working on ad hoc basis as Sub Divisional Engineer, (Class II) has assailed the validity of Rule 9.4 of the Haryana Service of Engineers (Class II) PWD (B&R) Rules, 1965 (hereinafter referred to as the Rules) and the denial of promotion to him to the regular post of Sub Divisional Engineer. At the hearing, learned counsel for the petitioner has submitted that he will not press into challenge the issue with regard to the validity of the Rules but would confine himself only to question of denial of promotion. Ordinarily and in the normal course on the submissions made, the matter ought to have been heard by the learned Single Judge. However, on account of the long pendency of the writ petition and having regard to the fact that the petitioner has retired from service in the meantime, learned counsels have submitted that the writ petition be heard and decided by the Division Bench. We have accordingly proceeded to hear the writ petition and pass final orders thereon. The claim of denial of promotion is founded on the following basis: Under the Rules in force, promotions from the post of Junior C.W.P.No.10931 of 1990 -3- Engineer to Sub Divisional Engineer are required to be made on the basis of a selection which is to be conducted every year. The channel of promotion under the Rule with which the writ petition would be concerned is source No.4 i.e. from the stream of Junior Engineers who have AMIE Degree. No selection was held in the years 1977, 1978 and 1979 and according to the petitioner a Composite Selection was held in the year 1980 for all the vacancies available in the three preceding years and a common select list in respect of all such vacancies was prepared by the Selection Committee. It is not in dispute that the petitioner had acquired the AMIE degree in the year 1978. What he contends is at that point of time, one of the persons selected, namely, Amarjit Singh, (not a party herein) was not eligible for consideration for promotion as the said person had acquired the AMIE Degree in 1979. In the selection held in the year 1980, Amarjit Singh, being senior to the petitioner in service, the case of the said person was duly considered and he was promoted. According to the petitioner, if the selections had been held every year he would have been selected in the year 1978 as the above-said Amarjit Singh would not have been eligible for consideration in the said selection. Learned counsel has pressed into service two judgments of the Hon'ble Apex Court in Union of India and others vs. Vipinchandra Hiralal Shah, (1996) 6 Supreme Court Cases 721 and Union of India and others vs. N.R.Banerjee and others, (1997) 9 Supreme Court Cases 287 to contend that selections are required to be held year-wise and separate select list for each year is required to be prepared even in case where there is a composite selection after a number of years. There can be no dispute on the issue that if selections are not C.W.P.No.10931 of 1990 -4- held every year and if are so held after a lapse of several years, year-wise panels of selected candidates have to be prepared after consideration from the zone of candidates who are eligible for being considered in a particular year. The petitioner was qualified in the year 1978 when Amarjit Singh was not so qualified which is an admitted fact. If that be so, had year-wise panels been prepared by the Selection Committees for each of the years for which selection did not take place, the petitioner certainly would have had an advantage over Amarjit Singh. However, it is on account of the composite selection made in the year 1980 without preparation of year-wise panels that Amarjit Singh, who was not qualified in the year 1978, came to be selected in the selection held in the year 1980 by virtue of his acquiring the AMIE Degree in the year 1979. Viewed from the aforesaid perspective, a legal wrong clearly appears to have been caused to the petitioner. However, the eventual determination by the Court will have to be made on the availability of vacancies in each of the years against which the petitioner could have been promoted. Insofar as the aforesaid aspect of the matter is concerned, while in para 9 of the affidavit of the State it is stated that there were no vacancies upto the year 1979, in para 11 of the affidavit, a contradictory stand has been taken by mentioning that in the year 1978 there were 27 vacancies available from source No.4. Sh.Rathee, learned counsel for the respondent-State, has not been able to reconcile to the aforesaid controversy and has prayed for some time. However, keeping in view the age of the litigation, we are disinclined to adjourn the case. Instead, we are of the view that the same ought to be disposed of with an appropriate direction. We, therefore, direct the State to C.W.P.No.10931 of 1990 -5- find out the year-wise vacancies in each of the years for which selection was not held i.e. 1977, 1978 and 1979 and thereafter, to consider the case of the petitioner for promotion to the post of Sub Divisional Engineer against the vacancies in the year in which he was eligible provided he would have come within the zone of consideration keeping in mind the number of vacancies available for that year. Thereafter, if the petitioner is found eligible for promotion notional promotion be given to him with effect from the date as he may be found entitled for promotion, however, without any monetary benefit. The notional promotion and the scale of pay of the higher post with effect from the date when promotion was due, if the petitioner is found entitled to the same, would be taken into account in computing the retiral benefits of the petitioner. Arrears of pension will be determined and revision of the current pension payable to the petitioner will be made, if required, depending upon the outcome of the exercise to be carried out by the State, which will be completed within a period of three months from date of receipt of this order or a certified copy thereof. The case of the petitioner(s) in C.W.P.Nos.1944 of 1990, 7798 of 1990 and 2826 of 1990 be also considered and decided as per the above directions, taking into consideration their respective claim for promotion to the post of Sub Divisional Engineer against the vacancies in the year in which he/they was/were eligible on passing the AMIE Degree. Disposed of. ( RANJAN GOGOI ) ACTING CHIEF JUSTICE January 18, 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE C.W.P.No.10931 of 1990 -6-