Civil Writ Petition No.6620 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.6620 of 1991 Date of Decision:22.03.2011 Miss Vijay Mehta and others ......Petitioners Versus The Punjab State Warehousing Corporation and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.R.K.Malik, Senior Advocate, with Mr.Vishal Malik, Advocate, for the petitioners. Mr.K.S.Sibia, Advocate, for respondent No.1. Pandit Vinod Sharma, Advocate, for respondent Nos.2 to 6. **** M EHINDER S INGH S ULLAR , J.(oral) The contour of the facts, which requires to be noticed for the limited purpose of deciding the sole controversy, involved in the instant writ petition and emanating from the record, is that the petitioners are the regular employees and were working as Senior Accounts Clerks at the relevant time, with the Punjab State Warehousing Corporation(respondent No.1)(for brevity “the respondent- Corporation”). The seniority-list of the Accounts Clerks was circulated and the seniority positions of the petitioners and private respondents is depicted in the extract of seniority-list(Annexure P-1). The petitioners were shown at serial Nos.10, 11, 14, 17 and 18, while the names of private respondents were mentioned at serial Nos.43 to 46 and 74 respectively. There were three channels of promotion from the posts of Senior Accounts Clerks i.e., Godown Assistant, Assistant and Accounts Assistant, in the pay scale of Rs.1500-2640. Civil Writ Petition No.6620 of 1991 2 2. The petitioners claimed that in the month of May 1981, the lower posts of Godown Assistant Grade-II were created by the respondent-Corporation and options were invited from every eligible Accounts Clerk, by way of letter dated 12.05.1981(Annexure P-2). The petitioners did not opt for the said posts, but requested that they may be granted the selection grade of Accounts Clerk, which was equivalent to the pay scale of Godown Assistant Grade-II, by means of letter dated 29.05.1981(Annexure P-3). The pay scale for the posts of Godown Assistant Grade-II was equivalent to the pay scale of selection grade of Senior Accounts Clerk and the petitioners were entitled to it as per the Government instructions, after completion of five years of their satisfactory service. It was claimed that as the petitioners were granted the selection grade, which was equivalent to the scale of Godown Assistant Grade-II, therefore, they did not opt for promotion to the said posts. 3. The case of the petitioners further proceeds that after the up- gradation of the posts of Godown Assistant Grade-II to the posts of Godown Assistant Grade-I in the year 1985, the respondent-Corporation again invited options from the eligible candidates by way of letter dated 03.03.1988(Annexure P-4). The petitioners again submitted their options to the effect that they may not be in a position to perform the duties and responsibilities for the posts of Godown Assistant, but they requested that their claim for promotion be considered for the posts of Accounts Assistant/Assistant, vide option letters(Annexures P-5 to P-7). 4. Again, apprehending that the respondent-Corporation may not promote their juniors to the posts of Accounts Assistant/Assistant, they filed a representation on 12.02.1990(Annexure P-8) requesting the respondent- Corporation that their claim be also considered for the posts of Accounts Assistant/Assistant, irrespective of their refusal of promotion to the posts of Godown Assistant Grade-II. The respondent-Corporation without considering and ignoring the claim(Annexure P-8) of the petitioners, was stated to have illegally Civil Writ Petition No.6620 of 1991 3 promoted the private respondents to the posts of Accounts Assistant, who were junior to them vide impugned promotional orders dated 27.02.1990 and 28.06.1990(Annexures P-9 and P-10), on account of an earlier resolution dated 30.05.1972(Annexure P-15) of the Board, wherein it was decided that if an employee does not accept the offer of promotion for two times, then he will not be entitled to be considered for promotion. The resolution(Annexure P-15) was claimed to be not applicable to the case of promotion of the petitioners. The representations(Annexures P-11 to P-14) were not considered and their claim of promotion has illegally been ignored by the respondent-Corporation in this regard. 5. The petitioners did not feel satisfied and preferred the instant writ petition, challenging the impugned promotional orders(Annexures P-9 and P-10), invoking the provisions of Articles 226/227 of the Constitution of India. 6. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioners that their alleged refusal in the year, 1981(Annexure P-3) for promotion to the lower posts of Godown Assistant Grade- II, has got nothing to do to debar them from the promotion to the higher posts of Accounts Assistant/Assistant at the relevant time of promotion. It was alleged that they gave their consent for promotion to the posts of Accounts Assistant/Assistant, after the up-gradation of the posts of Godown Assistant Grade-I in the year 1985. The private respondents, who were junior to the petitioners, were stated to have been illegally promoted on the posts of Accounts Assistant by the respondent-Corporation. On the basis of aforesaid allegations, the petitioners sought the quashment of impugned promotional orders(Annexures P-9 and P-10), in the manner indicated here-in-above. 7. The respondents contested the claim of the petitioners. Respondent No.1 filed its written statement, while private respondent Nos.2 to 6 filed their separate joint written statement, inter alia, pleading certain preliminary objections of, maintainability of the writ petition, cause of action, locus standi of the Civil Writ Petition No.6620 of 1991 4 petitioners and the objection of delay and laches. 8. The case set-up by the respondents in brief, insofar as relevant, was that since the petitioners have refused to accept the promotion of Godown Assistant Grade-II, so they are not entitled to be considered for promotion, in view of the resolution(Annexure P-15) of the Board. Respondent Nos.2 to 6 have been rightly promoted under the rules, regulations and service conditions, by way of impugned promotional orders(Annexures P-9 and P-10) and they have already successfully completed their period of probation. They have been made permanent on the promoted posts. The remaining allegations of promotional eligibility of the petitioners, their positions in the seniority-list(Annexure P-1) and the fact that they have been ignored on account of their refusal of promotion to the posts of Godown Assistant Grade-II, have been admitted. Sequelly, respondent Nos.2 to 6 have toed the lines of the pleadings contained in the written statement of respondent No.1. However, the respondents have stoutly denied the claim of promotion of the petitioners, as reiterated in the writ petition and prayed for its dismissal. 9. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the present writ petition deserves to be accepted in this respect. 10. At the very outset, learned counsel for the petitioners has stated at the bar that in pursuance of the order dated 08.08.1991 of this Court, the respondent- Corporation has promoted the petitioners on the posts of Accounts Assistant/Assistant with effect from 05.12.1996. This factual matrix has been acknowledged by the learned counsel for the respondents. 11. Thus, the instant controversy boils down to a very narrow compass of their entitlement of such promotion with effect from the date, when their juniors were promoted till 05.12.1996, when the petitioners were actually promoted as Accounts Assistant/Assistant. Civil Writ Petition No.6620 of 1991 5 12. As is evident from the record that as per seniority-list(Annexure P-1), admittedly the petitioners were senior to the private respondents. They were working as Senior Accounts Clerks at the relevant time. There were following three channels of promotion from the posts of Senior Accounts Clerk to the higher posts:- Senior Accounts Clerk (Rs.1200-2100) -I---------------------------------I----------------------------------I Godown Assistant Assistant Accounts Assistant (Rs.1500-2640) (Rs.1500-2640) (Rs.1500-2640) 13. It is not a matter of dispute that when the lower posts of Godown Assistant Grade-II were created by the respondent-Corporation in the month of May 1981, options were invited from every eligible Accounts Clerk, vide letter (Annexure P-2). All the petitioners gave in writing that the post of Godown Assistant Grade-II is a field job and does not suit to the ladies and they did not opt to be promoted on those posts. But they requested that they may be granted selection grade of Accounts Clerk vide similar letter(Annexure P-3). The petitioners claimed that in the year 1985, the post of Godown Assistant Grade-II was upgraded to the post of Godown Assistant Grade-I and again options were called by the respondent-Corporation by means of letter(Annexure P-4). In pursuance thereof, the petitioners exercised their options and maintained that instead of promoting them as Godown Assistant Grade-I, which is one of the channel of promotion, at the same time, they requested the respondent-Corporation to promote them as Accounts Assistant/Assistant, the other two channels of promotion from the posts of Senior Accounts Clerks, by way of option letters (Annexures P-5 to P-7). The other similar options were stated to have been exercised by the remaining petitioners as well. 14. Such, thus, being the position on record, now the core question that arises for determination in the instant writ petition is, as to whether the valuable Civil Writ Petition No.6620 of 1991 6 right of the petitioners for promotion to the posts of Accounts Assistant/Assistant can be denied to them in this regard or not? 15. Having regard to the rival contentions of the learned counsel for the parties, to me, the obvious answer is in negative and the petitioners were entitled to be considered for promotion to the higher posts of Accounts Assistant/Assistant in this regard. 16. What is not disputed here is that the petitioners were senior to the promoted private respondents, as per seniority-list(Annexure P-1). They fulfill all the requisite qualification and were eligible to be considered for the promotion of the higher posts. As indicated earlier, the claim of the petitioners was negatived by the respondent-Corporation, mainly on the ground that since they have refused the promotion of Godown Assistant Grade-II, therefore, their names cannot be considered for promotion to the remaining posts of Accounts Assistant/Assistant, in view of resolution(Annexure P-15) of the Board. 17. Here, to my mind, the respondent-Corporation has slipped into legal error in this relevant connection. The petitioners did not, at any point of time, refuse to consider their names for the promotional higher posts of Accounts Assistant or Assistant, to which the private respondents were promoted by the respondent-Corporation, by virtue of impugned promotional orders(Annexures P-9 and P-10). Therefore, the mere alleged refusal of the petitioners by way of letter (Annexure P-3) for promotion to the lower posts of Godown Assistant Grade-II or Godown Assistant Grade-I by means of letter(Annexure P-5), would not, in any way, debar them from claiming their promotion to the higher posts of Accounts Assistant/Assistant, which are altogether the different posts, than that of refused posts. 18. Meaning thereby, the condition of resolution(Annexure P-15) to debar the petitioners from promotion on account of their twice refusal on the same posts, would not at all be applicable in these circumstances, as they have never Civil Writ Petition No.6620 of 1991 7 refused their promotion to the posts of Accounts Assistant/Assistant at any point of time. Therefore, the contention of the learned counsel that the petitioners are entitled to be considered for promotion to the posts of Accounts Assistant/Assistant, has considerable force. On the other hand, the contrary arguments of the learned counsel for the respondents “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances, as the right to be considered for promotion is an important condition of service and legitimate right of an employee. The refusal to promote the petitioners to the lower posts of Godown Assistant Grade-II or Grade-I, would be no impediment to prevent them to the higher posts of Accounts Assistant/Assistant in the instant case. Therefore, the same cannot be denied to them, without any cogent reasons, particularly in case of promotion on the basis of seniority-cum-merit in this context. 19. In this manner, it is held that the petitioners, who were senior to the private respondents, were eligible and entitled to be considered for promotion to the posts of Accounts Assistant/Assistant, but the respondent-Corporation has illegally ignored their claim of promotion on the basis of non-existent ground and has illegally promoted respondent Nos.2 to 6 by way of impugned promotional orders(Annexures P-9 and P-10). The mistake appears to have been partly corrected by it when the petitioners were promoted on the higher promotional posts on 05.12.1996. 20. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 21. In the light of aforesaid reasons, the writ petition is hereby accepted. The respondent-Corporation is directed to consider the case of the petitioners to the higher posts of Accounts Assistant/Assistant with effect from the date their juniors(private respondent Nos.2 to 6) were promoted through the medium of impugned promotional orders(Annexures P-9 and P-10) and to release all the consequential service benefits arising therefrom, in the obtaining circumstances of Civil Writ Petition No.6620 of 1991 8 the case. Needless to mention here that the natural consequences would follow accordingly. March 22, 2011 (MEHINDER SINGH SULLAR) seema JUDGE