CIVIL WRIT PETITION NO.12699 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 30, 2009 Prem Singh Malik .....Petitioner VERSUS State of Haryana and others ....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. N. K. Malhotra, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner seeks direction for the respondents to promote him on the post of Pharmacist by quashing order Annexure P-11 dated 14.9.2006 vide which representation filed by the petitioner, ordered to be decided pursuant to the order passed by this Court, has been declined. The petitioner, who is presently working as a Lab Technician since 22.4.1977, did his diploma in Pharmacy from a recognized University. He is having a matriculation educational qualification with Science and Hindi as subjects. On 6.11.1990, some CIVIL WRIT PETITION NO.12699 OF 2008 :{ 2 }: instructions were issued for making appointments to the posts of Pharmacist from amongst the department employees. It was provided therein that 25% posts of Pharmacist would be filled up from the departmental employees on the basis of seniority cum fitness through promotion whereas 75% of the posts were to be filled up directly. On 10.4.1996, respondent No.3, who was working as a Lab. Technician as well as Multipurpose Health Worker, was adjusted as Pharmacist in the pay scale of Rs.1400-2600/-. Some other employees were also statedly so adjusted. The petitioner submitted an application on 24.6.1998 for his promotion/adjustment as Pharmacist in view of such order having been passed in respect of some other employees as afore-mentioned. Thereafter he appears to have remained silent. On 8.6.2006, six posts of Pharmacist were advertised. Three posts were meant for general category, one for B.C-B, one for B.C-A (ESM) and one post was for ESM (SC). The essential qualification was matriculation with Science and Hindi and diploma in Pharmacy from the recognized Institution. The petitioner applied for being appointed as a Pharmacist in response to this advertisement on 20.6.2006. He was not issued roll number. The petitioner accordingly represented. He also filed Civil Writ Petition No.13649 of 2006,which was disposed of on 29.8.2006 with a direction to the respondents to take a final decision on the said representation within three months from the date a certified copy of the order was so supplied. The petitioner forwarded his representation, which was rejected on 14.9.2006.The petitioner terms this to be illegal. The petitioner has accordingly filed this writ petition in July 2008. CIVIL WRIT PETITION NO.12699 OF 2008 :{ 3 }: Written statement is filed. It is pointed out that order dated 14.9.2006, subject matter of challenge in the writ petition, is passed pursuant to the direction issued by this Court in Civil Writ Petition No.13649 of 2006. It is pointed out that Director, Health Services, Haryana, Panchkula, and Director, P.G.I.M.S., Rohtak, are both separate cadre/Department. They are governed by separate service rules for recruitment and promotion. It is pointed out that the petitioner had joined as Laboratory Assistant on 22.4.1977 on adhoc basis. He was appointed on regular basis on 5.1.1978. It is stated that the petitioner has undergone a diploma in pharmacy, permission for which was granted to him on the condition that his training period will be treated as duty on full pay and allowances but he will not claim any promotion or higher pay or any special pay for undergoing this training and that he will execute a bond for a period of 5 years with Medical College, Rohtak. It is accordingly pleaded that the petitioner can not claim promotion for having acquired diploma in Pharmacy. It is then pointed out that service rules of Haryana Medical Education Department, Technical Staff, made effective from 22.6.1999 are applicable to the petitioner and as per these rules, the post of pharmacist is required to be filled by direct recruitment and not by promotion. Even in the posts advertised in the year 2006, the age prescribed was 17 to 40 years. The application filed by the petitioner showed that he was 53 years old, on the closing date of receipt of the application and, thus, was over age. Accordingly, it is stated that the claim of the petitioner was rejected. Similar grounds are disclosed in order Annexure P-11 while rejecting the representation filed by the petitioner, which was required to be decided in terms of the order CIVIL WRIT PETITION NO.12699 OF 2008 :{ 4 }: passed by this Court. Learned counsel for the petitioner submits that the petitioner had submitted his representation for promotion/adjustment on 24.6.1998, when the Rules framed in the year 1999 had not come into existence. He accordingly pleads that his case for promotion could have been considered like some other employees who were either so promoted or adjusted. The counsel for the petitioner did not deny When asked, if he had consented to the terms contained in Annexure R-1 whereby ex-post-facto sanction was accorded for his deputation training for two years on the conditions contained therein. One of the conditions was that he will not claim any promotion or higher pay. This condition was agreed to by the petitioner in the year 1989. Still, he made a representation for his adjustment/promotion in the year 1998. Having done so, he did not take any action till the posts were advertised in June 2006. Thereafter, the petitioner is supposed to have acted to file a representation. By then, the Rules had come into being, which were framed in the year 1999 and the post of Pharmacist, as per these Rules, is required to be filled up by direct recruitment and not by promotion. Simply because the petitioner had filed a representation in the year 1998, that too in the background of undertaking given by him, would not lead to create any indefeasible right in the petitioner for consideration or grant of promotion. The petitioner otherwise can only claim right of consideration for promotion and can not seek direction for his promotion. Now as per the Rule position, the appointment to the post of Pharmacist is to be made by direct recruitment and this rule is not under challenge in any manner. The silence on the part of the CIVIL WRIT PETITION NO.12699 OF 2008 :{ 5 }: petitioner from the year 1998 to 2006 has remained unexplained. So too the delay on his part in challenging the order dated 14.9.2006 passed pursuant to the direction given by this Court, till he filed the present writ petition in July 2008. The reference made by counsel for the petitioner to the case of Raj Singh Vs. State of Haryana, 2003 (1) RSJ 751, to urge that vacancies which had occurred prior to the amendment of the Rules, would continued to be governed by the old Rules and not by the amended Rules and that the petitioner would be required to be considered for promotion against such post would also not help as the petitioner has not shown any material on record that there was any post of Pharmacist lying vacant prior to the date the rules were amended. This judgment would also not help the cause of the petitioner in view of the undertaking, which he had given. The petitioner could have been considered for direct appointment to the post for which he had applied if he was eligible for such consideration. The petitioner was over age, being 53 years old and, thus, could not be considered for direct appointment as Pharmacist as well. The Rules which were introduced in the year 1999, have not taken away any right of the petitioner for promotion as he did not have any such right. Accordingly, the ratio of law laid down in the case of Raj Singh (supra) would not be applicable to the facts of the present case. There is no merit in the writ petition. The same is accordingly dismissed. July 30,2009 ( RANJIT SINGH ) khurmi JUDGE