IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.9289 of 1987 (O&M) Date of decision: 23.09.2011 Shyam Lal, Bhakra Main Line Circle, Patiala, (Patiala), and others ....Petitioners versus State of Punjab, through Secretary Irrigation, Punjab, Chandigarh and another. ....Respondents II. Civil Writ Petition No.13010 of 1989 (O&M) Dharam Pal, Sub Divisional Clerk, Thien Dam Township Circle Shahpur Kandi Township, Gurdaspur, and another ....Petitioners versus State of Punjab, through Secretary Irrigation, Punjab, Chandigarh and another. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Pawan Kumar, Senior Advocate, with Mr. Anshuman Mandhar, Advocate, for the petitioners in CWP No.9289 of 1987. Mr. S.S. Rana, Advocate, and Mr. Sarvesh Kumar Gupta, Advocate, for the petitioners in CWP No.13010 of 1989. Mr. Navdeep Sukhna, DAG, Punjab. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- Civil Writ Petition No.9289 of 1987 (O&M) - 2 - K.Kannan, J. 1. The petitioners in the both the writ petitions were Sub Divisional Clerks (SDCs) working in the office of the Chief Executive, Public Works Department (Irrigation Branch), State of Punjab. They were holding the respective posts after having qualified in Sub Divisional Clerks' Exam and securing a promotion from the Assistants Clerks in the manner required under the Punjab Public Works Department (Irrigation Branch), Circles' Clerical State Service, Class-III, Rules, 1955. As per the relevant rules, the next promotion posts were Account Clerks and still higher posts were Deputy Superintendent and Superintendent. 2. The Government framed new Rules for the Punjab State Assistant Grade Examination Rules, 1984 on 11.04.1984, providing for the Assistant Grade Examination for appointment to the posts in civil service under the State of Punjab designated as Assistants. This includes such posts higher in rank to the posts of Clerks, who were in the same or in identical pay scales and carried responsibilities similar to or identical of those posts of Assistants or whatever designation they were called. The grievance of the petitioners, who belonged to the class of SDCs, was that even when there were vacancies before the coming into force of 1984 Rules, they had not been given the promotion, but they were all required to pass the examination to be promoted to the Assistant's posts. Several of the juniors, who had passed the examination under the 1984 Rules were Civil Writ Petition No.9289 of 1987 (O&M) - 3 - promoted which, according to the petitioners, was grossly discriminatory and arbitrary, since the petitioners, who had already passed the Sub Divisional Clerks' examination under 1955 Rules, could not have been compelled to take the examination under the 1984 Rules also. 3. The State would contest the petitioners' claim by contending that the post of Sub Divisional Clerks and the Sub Divisional Clerks' examination stood redundant as was recognized by this Court in the writ petition No.1874 of 1981. The case was instituted at the instance of Sub Divisional Clerks, who challenged the requirement of having to take the Assistant examination for promotion. This Court took note of the fact that under the Punjab Civil Services Rules (Revised Scales of Pay) Rules 1979, which were brought about on the recommendation of 2nd Pay Commission, the Government took a decision for reorganizing the various departments of the Punjab Government and it was decided in principle that earlier gradation of the offices A, B and C should be completely abolished and there should be only two gradations namely, A and B. Consequently, the various posts, which were earlier designated in Irrigation Department as Assistant-Clerks, Sub Divisional Clerks and Accounts Clerks, stood abolished and instead, the existing cadre of Clerks as on 01.01.1978 was divided in the ratio of 50:50 by re-designating them as Clerks and senior Clerks in the scales of pay 400-600 and 510-800 respectively. The post of Civil Writ Petition No.9289 of 1987 (O&M) - 4 - Sub Divisional Clerks and Accounts Clerks in pre-revised scales of pay of 110-250 were encadred with the posts of Clerks and the specialized posts were manned by senior Clerks. As per the revised pay scales Rules 1979, the existing employees were given the option to adopt the new grades or continue in the old grades. The Rules were applicable to all the employees, who were holding the posts mentioned in Schedule-B of the Rules in the Irrigation Department in the hierarchy consisting of Assistant Clerks, who were entitled to be promoted as Sub Divisional Clerks after passing the examination and the further promotion of Accounts Clerks where there was no need for passing any examination for the latter promotion. The examination was only for securing a promotion to Sub Divisional Clerks. Across of board the hierarchy of Assistants Clerks, Sub Divisional Clerks and Accounts Clerks stood clearly abolished in all departments and the new scales that were effected from 01.01.1978 recognized only Clerks in the scale of 400-600 and senior Clerks in the scale of 510-800. When the 1984 Rules required the pass in the Assistant Examination, it was perfectly justified that only such persons, who took the examination, could have been promoted. There were no longer Sub Divisional Clerks amongst the ranks, who could insist that they could be promoted as Assistants or Account Clerks without passing the examination. 4. The petitioners now rest their case on a singular point that there were vacancies in the post of Accounts Clerk/Accountants Civil Writ Petition No.9289 of 1987 (O&M) - 5 - before the 1984 Rules came into effect on 11.04.1984. The petitioners give a complete tabulation containing 19 names, who had retired before the 1984 Rules came into effect. They are the following:- Sr. No. Name of the official Designation Date of retirement 1. Sh. Bimal Sarup Accounts Clerk 31.3.1984 2. Sh. Chander Bhan -do- 31.1.83 3. Sh. Vishnu Dutt -do- 28.2.84 4. Sh. Kishan Chand -do- 31.3.83 5. Sh. Parmatma Singh -do- 30.6.83 6. Sh. Rajinder Kumar -do- 31.3.84 7. Sh. Dwarka Nath -do- 31.1.84 8. Sh. P.R.Vinod -do- 31.7.83 (expired) 9. Sh. Anup Singh -do- 30.11.83 10. Sh. Gurbakash Singh -do- 21.1.84 (expired) 11. Sh. Sarup Singh -do- 1.3.83 (expired) 12. Sh. Om Parkash -do- 6.4.84 13. Sh. Tilak Raj -do- 31.7.83 14. Sh. Pran Nath Kapur Accounts Clerk 28.2.84 15. Sh. Krishan Kumar -do- Expired 16. Sh. Kundan Lal -do- 30.11.83 17. Sh. Gurdas Ram -do- 31.1.84 18. Sh. Bawa Singh -do- 28.2.84 19. Sh. Tilak Raj Sharma -do- 25.10.83 (expired) 5. The petitioners would contend placing reliance in Y.V. Rangaiah and others Versus J. Sreenivasa Rao and others-1983 (1) Services Law Reporter 789, where the Hon'ble Supreme Court, while dealing with the Andhra Pradesh Registration and Subordinate Service Rules, was considering the appointment/promotion to the grade of Sub Registrar. Referring to the requirement of the drawing up a panel on 1st September of every year, the Court ruled that an Civil Writ Petition No.9289 of 1987 (O&M) - 6 - amendment of Rule in 1977 that took away the rights of promotion of Lower Division Clerks could not be applied to fill-up the vacancies which had occurred prior to the amended Rules. They would still be governed by the old Rules and amended Rules would be applicable only to vacancies which arose after the amendment. As a matter of fact, this decision had been cited at the first hearing before the Court and this Court had passed an order that any promotion issued to juniors of the petitioners, who had passed the Assistant Examination of the year, 1984 and who had gained the promotion would occupy the posts subject to the result in the writ petition. While the petitioners cannot contend that even without passing the Assistants' examination, they should be considered for promotion to the Assistant's post on the basis of their pass in the Sub Divisional Clerks examination under 1955 Rules, I would still apply the law laid down by the Hon'ble Supreme Court in Y.V. Rangaiah's case (supra) and reserve those vacancies that had come about prior to 11.04.1984 to be filled from amongst the Sub Divisional Clerks, who had passed the examination under the 1955 Rules. It is not possible to gather details from the writ petitions, the order of seniority amongst the petitioners. If 19 vacancies did exist before 11.04.1984, the senior most amongst the Sub Divisional Clerks, who had passed the examination under the 1955 Rules, were required to be filled-up irrespective of whether they had passed the Assistants' examination of the year 1984 or not. It bears out from Civil Writ Petition No.9289 of 1987 (O&M) - 7 - the pleadings and certain facts brought about from the subsequent documents filed during the pendency of the writ petition, some of the juniors had been promoted by virtue of the fact that they had passed the Assistants' examination. The respondents are directed to enumerate the senior most amongst Sub Divisional Clerks and such of those among the petitioners, who would rank within the first 19 in the order of seniority shall be promoted to occupy the 19 vacant posts that are brought out through the tabulation, referred to above. This promotion shall be treated as effective from the day when any of the juniors had been promoted. They shall also be entitled to all the consequential benefits. 6. Consequently, the petitioners' claim that they could not have been compelled to take the Assistant examination for being promoted under the 1984 Rules and their qualification as having a pass in Sub Divisional Clerks' examination under the 1955 Rules itself as sufficient is rejected. However, the petitioners' contentions are accepted in part to provide for filling-up all vacancies for the 19 posts from amongst the senior most Sub Divisional Clerks. The enumeration of the candidates, who were entitled to such promotion shall be undertaken by the respondents and the employees that fall within the first 19 in the order of seniority shall be fitted in appropriate posts with the respective scales within a period of 12 week from the date of passing of this order with all consequential benefits. Civil Writ Petition No.9289 of 1987 (O&M) - 8 - 7. Both the writ petition are partly allowed to the above extent. (K. KANNAN) JUDGE 23.09.2011 sanjeev