CIVIL WRIT PETITION NO.14170 OF 2009 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 29, 2010 Rann Singh .....Petitioner VERSUS State of Haryana and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Dhiraj Chawla, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Aggrieved against the action of the respondents to withdraw the promotion granted to the petitioner, he has filed the present writ petition to challenge the order dated 8.9.2009 (Annexure P-9) in this regard. The petitioner belongs to a Saini caste and was appointed as Clerk under Ex-gratia Scheme on 6.10.1987. Being CIVIL WRIT PETITION NO.14170 OF 2009 (O&M) :{ 2 }: from backward class, the petitioner is entitled to be considered for promotion on a roster point reserved for backward classes. As per letter issued by the respondent Department on 6.1.1998, it was clarified that 10th roster point with the respondent- Department was reserved for promotion quota for B.C candidate. As revealed in the petition, the respondent had earlier, while filing response in another writ petition, had assured this Court that the post of Assistant in the promotion quota i.e. the 10th point in the roster belongs to backward class and whenever the respondents would decide to fill the same, it will be given to eligible and suitable backward class candidate. The State Government had decided to discontinue the reservation policy for B.C candidates but still, through its letter dated 26.2.1999, it was clarified that short fall of backward classes existing prior to 15.11.1997 would be given to eligible persons from the backward class. The Chief Secretary also issued instructions on 25.2.2000 addressed to all the Head of Departments that the roster point vacancy existing prior to 15.11.1997 can be filled up retrospectively by promoting the backward class candidates in respect of such vacancies. On the basis of such policy instructions, the petitioner was promoted as a Assistant on 18.1.2000. Though the petitioner was promoted, but he filed a representation on 9.11.2000, objecting to a proforma promotion given to one Balak Ram vide order dated 18.1.2000. This representation was considered and respondent No.2 came to conclude that Balak Ram was not entitled to be appointed as a Clerk and as such, could not have been given proforma promotion as Assistant against the CIVIL WRIT PETITION NO.14170 OF 2009 (O&M) :{ 3 }: reserved vacancy meant for backward class category. The petitioner being the next man in the seniority list, thus, deserved to be promoted on roster point No.10 caused by the retirement of one Kishori Lal on 30.6.1995. After examining the relevant Rules and record, respondent No.2 ordered retrospective promotion of the petitioner w.e.f. 1.7.1995 against roster point No.10 meant for backward class category vide order dated 3.9.2001. This position continued for nearly 8 years, when suddenly on 22.4.2009, the petitioner was issued a show cause notice for withdrawing the promotion granted to him as Assistant against the roster point w.e.f. 1.7.1995. It was now proposed to promote the petitioner w.e.f. 26.8.2003 on the ground that the State Government had discontinued the reservation policy in promotion to the backward classes w.e.f. 16.11.1997 and, thus, the retrospective promotion w.e.f. 1.7.1995 as ordered on 3.9.2001 was bad in the eyes of law. The objection-cum-reply filed by the petitioner was rejected on 8.9.2009 and the impugned order withdrawing the promotion passed. The petitioner has, thus, filed the present writ petition. In the reply filed, it is stated that quota of B.C Category in promotion was abolished on the basis of judgment given by the Apex Court. While explaining the factual position, it is stated that a post of Assistant fell vacant in the Jail Department on 1.7.1995 due to retirement of Kishori Lal. On a representation filed by the petitioner, he was promoted as Assistant, when B.C Quota for promotion was not in existence without considering the claim of other eligible candidates. It is also disclosed that Balak Ram Saini belonging to B.C category was senior to the petitioner as Clerk and was required CIVIL WRIT PETITION NO.14170 OF 2009 (O&M) :{ 4 }: to be promoted as Assistant, if the B.C quota was to be filled up on 1.7.1995. Reference is then made to the representation filed by the petitioner for promotion against B.C quota and it is stated that he was promoted on roster point 10 irregularly. Stand is that roster point 10 had already been abolished and was filled up by general category candidate since 2.12.1998. It is also stated that the petitioner was given back date promotion arbitrarily and when it came to the notice of the respondents, the matter was examined and the promotion withdrawn after serving show cause notice to the petitioner. The factual position is not much in dispute. It is not disputed that the 10th point in the roster point for promotion to the post of Assistant was available to be filled from eligible and suitable backward class candidates. It is also not in dispute that benefit of reservation in promotion to backward class employees was discontinued w.e.f. 16.11.1997. There is also no dispute that the instructions were issued on 20.7.1995, which was followed by clarificatory letter dated 6.1.1998 that the vacant post for promotion quota at roster point 10 will be filled in from amongst the B.C candidates. The respondent-Government had in fact given this undertaking before this Court in response to a writ petition filed by one Ranbir Singh belonging to backward class category that the post of Assistant at 10th roster point would be offered to backward class whenever it was decided to fill the same and the writ petition was disposed of as infructuous. Fact is that Balak Ram was working as Warder as Central Jail, Ambala and was promoted as Clerk in the Head Office. As per the petitioner, this was in violation of the Recruitment Rules. CIVIL WRIT PETITION NO.14170 OF 2009 (O&M) :{ 5 }: For promotion/appointment for the post of Clerk in the Head Office, it was essential for incumbent to be a Restorer and to have atleast five years service or it could be filled by way of transfer of Clerks in the Jail Offices. Balak Ram was neither a Restorer nor working as a Clerk in Jail Office. His promotion as Clerk was, thus, against the rules. Not only that, he was further promoted as Assistant against roster point No.10, which fell vacant on retirement of Kishori Lal. Balak Ram was then promoted as Sub Jail Superintendent w.e.f. 1.10.1997 and further promoted as Assistant Superintendent Jail but was given proforma promotion as Assistant against roster point No.10 on 18.1.2000. The petitioner accordingly represented against the same for granting proforma promotion to Balak Ram. He also objected to Balak Ram being promoted as a Clerk and Assistant, he being not eligible for such an appointment/promotion. On the basis of representation, the respondents decided that Balak Ram was not entitled to be appointed as a Clerk and as such, could not be given promotion as Assistant. Accordingly, the next person in seniority was required to be promoted as Assistant on roster Point 10. It is in this background that the petitioner was promoted w.e.f. 1.7.1995, which has now been withdrawn. The reason to withdraw the promotion on the ground that reservation policy was discontinued w.e.f. 16.11.1997, as per counsel for the petitioner, would also not make any difference because as per policy instructions (Annexure P-4), the shortfall of backward class category existing upto 15.11.1997 is to be taken into consideration for promoting eligible backward class candidates. There being shortfall, the promotion of the petitioner was legal and CIVIL WRIT PETITION NO.14170 OF 2009 (O&M) :{ 6 }: valid and hence, could not have been withdrawn on the ground as stated in the show cause notice. Seen from the other angle, the case of the petitioner is that Balak Ram was not eligible for promotion as Assistant and had wrongly been promoted as Assistant, for which the petitioner was entitled to be promoted and hence, on this count also the promotion granted to the petitioner could not be withdrawn. In response to a query by Court, the petitioner has placed on record the material to show that Balak Ram was given proforma promotion as Assistant against Roster Point No.10 on the retirement of Kishori Lal. In this regard, Annexure P-10, which is a order dated 18.1.2000, has been placed on record alongwith the additional affidavit. That being the position, the claim made by the petitioner would stand substantiated. The counsel for the petitioner is justified in submitting that Balak Ram was not eligible for promotion/appointment as Clerk/Assistant and on that count also the petitioner would be entitled to be promoted against roster point No.10 as per his seniority. The reason that reservation for backward classes was withdrawn would also not mean much as the vacancies existing prior to 15.11.1997 were to be filled up as per the roster point and on that ground also the petitioner would be eligible for such promotion, Balak Ram having been promoted as Sub Jail Superintendent and had only been given proforma promotion as Assistant. Roster Point 10 meant for B.C category, thus, was rightly given to the petitioner and the action of the respondents in withdrawing this promotion on the ground as mentioned in the show cause notice is not legally sound and, thus, can not be sustained. CIVIL WRIT PETITION NO.14170 OF 2009 (O&M) :{ 7 }: The writ petition is, therefore, allowed and the impugned order withdrawing the promotion of the petitioner is set-aside. July 29,2010 ( RANJIT SINGH ) khurmi JUDGE