CWP No. 8057 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 8057 of 1994 Date of decision 6 .5.2009 Balbir Singh and another ... Petitioners Versus State of Punjab and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: Mr. D.S.Brar ,Advocate for the petitioners Ms.Sudeepti Sharma, DAG Punjab Mr. Raman Mahajan, Advocate for respondent no.3 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The short issue raised in this petition filed under Article 226 of the Constitution is whether promotion of respondent no.3 to the post of Superintendent Grade II from the post of Sr. Scale Stenographer vide order dated 2.6.1994 was in accordance with Punjab Civil Services (Promotion of Stenographers and Stenotypists) Rules, 1961 (for brevity 'the Rules'). Brief facts necessary for disposal of the controversy raised are that petitioner no. 1 was appointed as Clerk on 7.8.1964 whereas petitioner no.2 has joined as such on 14.5.1964. They were further promoted as Assistant on 20.11.1971 and 13.9.1971 respectively. Thereafter, petitioner no.2 was promoted as superintendent Grade II on 2.6.1994 ( P.3). Shri Ved Parkash, respondent no. 3 had joined as a Clerk on 6.6.1967 and was promoted as Senior Scale Stenographer on 9.6.1971. In accordance with the Rules an incumbent on the post of Senior Scale Stenographer/Steno-typist becomes eligible for consideration for promotion to the higher post on clerical side if he fulfills the requirement of Rule 3 of CWP No. 8057 of 1994 2 the Rules. According to Rule 3 of the Rules in offices where the scale of pay of stenographers is equivalent to that of assistant, the senior scale stenographer could become eligible for promotion to the higher post on clerical side subject to the condition that he qualify the departmental test for the post of Assistant and had worked as Assistant for a period of two years on an existing vacancy or by sharing the work of an Assistant. The petitioners have challenged the promotion of respondent no.3 on the short ground that he did not qualify the departmental test for the post of Assistant and therefore he could not have been considered for promotion to the post of Superintendent Grade II. The stand of the official respondents in their written statement is that the respondent no.3 was not required to pass the test as he was already working as Senior Scale Stenographer w.e.f. 9.6.1971 whereas Assistant Grade Examination Rules, 1984 came into force w.e.f. 12.4.1984 (for brevity Assistant Grade Rules). It has been pointed out that respondent no. 3 was given the work of an Assistant on 12.6.1980 and he worked as an Assistant alongwith his work of stenographer for more than two years from 12.6.1980 to 17.11.1982. It is claimed that neither the Assistant Grade Examination Rules had come into force nor any such test was held. For the purpose of further promotion from clerical side a list of eligible candidates is prepared which includes the names of Assistant, Stenographer and Sr. Scale Stenographer. In para 5 of the written statement it has been claimed that inter-se seniority list of Ministerial Establishment of department of Agriculture Punjab as on 1.9.1979 was published and circulated, which was drawn on the basis of date of continuous appointment as Assistant as well as Stenographer. According to the averments made in para 5, respondent CWP No. 8057 of 1994 3 no.3 was promoted as Superintendent Grade II according to inter-se seniority as Assistant vis.a.vis Senior Scale Stenographers which is determined for further promotion from the date of their continuous appointment as provided in Rule 3(2) of the Rules. The aforesaid seniority was never challenged by the petitioners where respondent no. 3 on the basis of continuous appointment has been shown senior to them. A replication has been filed to the written statement where the factum of promotion on the basis of inter-se seniority of Assistants and Senior Scale Stenographer has been denied and it has been reiterated that respondent no. 3 was not eligible on the material date. However, this stand has not been substantiated. A separate written statement by respondent no.3 has been filed which is also supplemented by additional affidavit filed in the Court, a copy whereof has been furnished to the counsel for the petitioners. According to the affidavit, respondent no. 3 retired from service on 30.9.2007 on attaining the age of superannuation by claiming that he was promoted as Senior Scale Stenographer on 9.6.1971 whereas petitioners were promoted as Senior Assistants much later. As the pay scale of both the posts were similar, respondent no. 3 in order to become eligible for promotion to the higher post in clerical cadre acquired eligibility in terms of Rule 3(2) of the Rules by sharing the work of the post of Assistant for a period of two years. It has also been pointed out that neither the petitioners had passed the Assistant Grade Examination nor respondent no.3 had qualified the same. Having heard the learned counsel for the parties at a considerable length I am of the considered view that this petition is devoid CWP No. 8057 of 1994 4 of merit and is thus liable to be dismissed. It has come on record that after the respondent no. 3 acquired eligibility in terms of Rule 3(1) of the Rules a joint seniority list of Senior Scale Stenographers vis-a-vis Assistants in terms of Rule 3(2) of the Rules was prepared for the purposes of further promotion to the post of Superintendent Grade II which was circulated. In the aforesaid list, respondent no.3 was shown senior to the petitioners. Respondent no. 3 was to rank senior on the basis of continuous length of service as provided by Rule 3(2) of the Rules. Rule 3 reads thus: “ 3. Promotion of Stenographers in offices where their scale of pay is identical to that of Assistant. (1) In offices where the scale of pay of stenographers is identical to that of Assistants, the stenographers shall before becoming eligible for promotion to a higher post on the clerical side, have to:- (i) Qualifying in the departmental test prescribed for the test of Assistant and (i) work of Assistant for a period of two years on some existing vacancy or by sharing the work of an Assistant: (a) No stenographer shall be allowed to take the test unless he has put in one year's service as stenographer. (b) Nothing in this sub rule shall be deemed to required the Stenographer, who stand exempted from passing the test by virtue of the instructions already issued by the Government from time to time to pass the Assistant's test prescribed in the sub rule. (c) no Stenographer will be put to work as an Assistant for CWP No. 8057 of 1994 5 required period of two years unless he has qualified in the test. Explanation:-1. The period during which a stenographer has before the date of issue of these rules, performed the duties of Assistant whether in addition to his own duties or otherwise will be taken into consideration counting the period of his training as Assistant. Explanation:-2. Where there is no available vacancy of the post of Assistant for imparting training to the Stenographer he shall be given at least one third of the work of some Assistant in addition to his own duties. The Assistant who is thus relieved of some of his work will in turn help the Stenographers in his routine duties. (2) The seniority of the Stenographers, who successfully complete the period of two years' training specified in sub rule (1), vis-a-vis Assistants, shall be determined by the dates of their continuous appointment against the post of Stenographer or Assistant, as the case may be and if the dates of their appointment be the same, the one drawing higher pay shall be senior to the other and if the rates of pay drawn by them be also the same the older shall be senior to the younger.” A perusal of the aforesaid Rules show that Senior Scale Stenographers who acquired the eligibility by completing period of two years training after sharing the work of the post of Assistant are given seniority by the dates of their continuous appointment vis-a-vis Assistants. CWP No. 8057 of 1994 6 The only other requirement was that their pay scale has to be similar which fact is undisputed. It was on the aforesaid basis that seniority list was circulated on 1.9.1979 and the petitioners never disputed their position in the seniority list. The aforesaid seniority list is prepared in pursuance of the mandate of Rule 3(1) and (2) which includes the name of Senior Assistants and Senior Scale Stenographers who acquired eligibility in terms of Rule 3 (1) of the Rules. The object of preparation of the aforesaid seniority list is to consider the cases of such Senior Scale Stenographers/Senior Assistants for further promotion to the post of Superintendent Grade II which is a higher post on clerical side. Once the petitioners did not dispute the seniority list there could not have been any dispute raised in the year 1994 on the basis that respondent no. 3 did not fulfill the eligibility criterion for consideration for promotion to the higher post on clerical side as he did not pass the departmental examination prescribed for the post of Assistant. The name of respondent no.3 remained on the seniority list for about five years before he was given promotion as Superintendent Grade II vide impugned order on 2.6.1994. There is not even a whisper in the petition which could show that the petitioners had challenged the seniority list in 1994. A Constitution Bench of 5 Judges of Hon'ble the Supreme Court in the case of Rabindra Nath Bose and others v. Union of India and others (1970) 1 SCC 84 has held that if there is inordinate delay in challenging seniority list then such a delay itself would be fatal to the maintainability of the writ petition. In the present case, the seniority list has not even been challenged for five years. Therefore, it has to be assumed that the seniority list as circulated on 1.9.1979 showing respondent no. 3 as senior to the petitioners was correct and promotion of respondent no. 3 on that basis has been legally CWP No. 8057 of 1994 7 made. There is thus no merit in the petition and the same is liable to be dismissed. The argument that the petitioners should have passed departmental examination prescribed for the post of Assistant would not require any serious consideration because no such examination was held and the Assistant Grade Rules came into force when the petitioners had already acquired eligibility as his name stood included in the joint seniority list. The requirement of putting Assistant Grade Examination was also not fulfilled by the petitioners and as such they could also not be promoted. The fact remains the petitioners and respondents were considered eligible in 1979 and their names continued on the joint seniority list from which they were promoted. Moreover, the petitioners and respondents have retired. It would not make any significant differences financially. For the reasons mentioned above, this petition fails and the same is accordingly dismissed. (M.M.Kumar) 6.5.2009 Judge okg