1 266 6 IN THE HIGH CHANDIGARH r CWP No14309 of2010 DateofDecision1152011 Dr DarshanSingh ePetitioner Versus StateofPunjab and others CORAMe HONBLE MRJUSTICE PERMOD KOHLI m Presentl Mr RajivAtma Ram Sr Advocatewith Mr Nikhil ChopraAdvocatefor the 0 0 Mr ChetanMittal Addl AG Punjab C5 Mr Rlll Raina Advocatewith Mr Vivek ShannaAdvocateor no2 888 Z PERMOD KOHLIJ ORALI Petitioneris of theorderdated1422009 passedby the Govt of Animal Fisheries and Dairy 1 1 Punjab n62 as the Director Animal charge of D 1 1 theDirector Animal A rtherdirectionis sought in thenature W2 P 1 of Mandamusfor of the on to thepostof Director Animal ln view of his seniority andeligibilityfor the 7 post Brieffactsleading to thefilingofthis petition are beingnoticed Petitioner was as Director by direct recruitment on selectionby the PSC in the year 1990 whereas 1 e no2 was as DeputyDirector vide order dated 2A998 An FIR NoA19 was against the on f l Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 267 4 CWP No4309 of2010 2 25121996 andhe was placedunder While thepetitioner was facingtrial hewas to beconsideredalongwithprivate for promotion to thepostof Joint Director A DC was held on 7122000 for considerationfor In view of the of the 1 criminal considerationwas keptin a sealedcover Petitionercame to be from the criminalcharge vide 0 dated2422002 He madea for opening of sealedcover 0 and to giveeffect to the recommendationsof the DC Receivingno 0 filed CWP No 13120 of 2005 This petition was C5 of vide orderdated2382005 with a directionto the I Stateto take a final decision on the submittedby the Z by passing a order On considerationof the pursuantto the directionsof the Court passed orderdated3082005 P4 the holding Z thatpetitioner was on technicalgrounds andit hasbeendecidedto f reexamlne thecase through a reglar inquirybyissuinga sheetunder Rule 80f the PunjabCivil Services Punishment8 aV2 Z Rules 1970 for treating the period as 1W dutyperiodandpromotion to the postof Joint Director was also flled A separate sheet of the even datewas also issued of the action of the petitioner flled CWP No 15064 of 2005 This 1 petitionwas allowedvide dated2472006 and a directionwas issued to the to open the sealedcover to determinewhetherthe has been found suitablefor to the post of Joint DirectorAnimal It was furtherdirectedthat in case the DPC had concluded that the hadfulfllled the benchmark Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 268 1 V 1 j1 CWPNo143090f2010 3 the shallgiveeffectto the same by the in the of reramedseniorityThis was bytheState beforethe HonbleSupreme Court and the of Division Bench was Duringthe ofthe SLP beforetheHonble Supreme Court against the were concludedand was awardedCensure On thatbasistheS1P flledbythe State withdrawn In the meantimeone DrBaljitSinghSidhu who was r was the postof Director Animal HusbandryPunjabretiredfrom the 0 0 Wee 152009 till furtherorders The postbut he was giv extenslOll 9 orderof extension to Drl3aljitSinghSidhuwas bythe in CWP No 5962 of2009titledas Dr DarshanSinghVs Stateof Z 8 others Under the interim directions by the Court extension granted to Dr Baljit Sidhuwas cancelledvide orderdated 3072009 Annexure and bya separateorderof the same date the C1 Z additionalchargeof thepostof Director Animal was givento ClO the who had been as Joint Director in the meantime no2 vide orderdated1512010 I81T W alongwith Z wef 72000 tl It is not in thatas Joint Director was senior the of the aforesaidpetition a than no2 for according consideration for to DPC was held on thepost of Director DPC no2 Accepting order dated1422009 in thispetition has recommendations an beenpassedwhereby no2 was as Director It seems thata review DC were alsohe1don 2152010 The Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 269 1 a 41 j CWP No4309 of2010 m4e by this Court vide order dated 2972010 holdingthat review DC held on 2152010 are not under and so is the with the order of Thus the was granted libertyto the DC and the of no therein as Director Animal Duringthe of this writ petitionthis court passed an interimorder dated 1 1152010 with the consent of the parties that a freshDC to flll up the of the Director shall be held for considerationof the eligible 0 vacancy 0 offlcers in the zone of considerationas on 152008 and 3172009 The C5 review DPC referredto in theflnal orderdated1972010 was held in view ofthe aboveinterim directions Z Petitioner has the no2 as C Director on the that the criteria for 1S ln contraventionto thestatutoryrules the Z It is contendedbyMr RajivAtma Ram learnedSeniorAdvocate thatthe rulesprovide as thesolecriteriafor rlo to thepostof Director whereas have the criteriaof a Z Il It is common case of the that the conditionsofthe service are bystatutoryrulesnamelyPunjabAnimal ServiceRules 1996 Thoughthe have also relied e thePunjabCivil Services GeneralandConditionsof Service Rules 1994 Witha view to the contentionsof the partiesit is to considertherelevantstatutoryrules the tothepostofDirector V Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 270 1 W m 1 rP 1t CWP No14309of2010 5 1 Shorttitle Commencementand Theserules maybe calledthePunjab Animal Class Service Rules 1996 2 Theyshallbedeemedto havecome intoforceon and witheffectfrom 15 1990 3 Theyshallapplyto theposts in Appendix A to theserules 2 DeflnitionslIn theserules unlessthecontext otherwise requies 1 Ct E9 Service means thePunjabAnimal ClassI Service 0 0 5e Methodof educational t5 and to theserviceshall be madein themanner specifled in Appendix B Z Provided that if no suitable candidate 1S availablefor C to a post in theServiceby thensucha postshallbe filled in bydirect lZ Providedfurtherthat if no suitablecandidateis availableor appointment to a post in theServiceby or bydirectrecruitment thensucha post shallbe fllled in bytransferof a personholdingsimilaror 6 1 identicalpostundertheStateGovt or Govt ofIndia 1 7 ofthe PunjabCivil Services General and Common Conditions of ServicelRules 1994el respectof the matters which are not provided in these rulesthe membersof the Serviceshall be by the of the PunjabCivil Services 1 and Common Conditionsof Service Rules 1994 as amended fromtime to time 33 1 Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 271 r 1 r 11 CWP No4309 of2010 5m 1 Short title Commencementand Theserules may be calledthePunjabAnimal Class Service Rules 1996 2 They shallbedeemedto havecome intoforceon and witheffectfrom 15 1990 3 Theyshallapplyto theposts in to theserules 2 In theserules unlessthecontext otherwise requle w l EI Service means thePunjab Animal HusbandryClassI Service 0 0 5 Method of educational 0 and to theserviceshall be madein themanner X in B Z availablefor Providedthat if no suitable candidate 1S be C to a postin theServiceby thensucha postshall filledin bydirect 0 furtherthat if no suitablecandidateis availableor 1 Z in theServiceby or bydirectrecruitment to a 00 thensucha shallbefilled in bytransferof a personholdingsimilaror 7 Z identicalpost undertheStateGovt or Govt ofIndia fl ofthe PunjabCivil Services yeneraland 7 CommonConditions of Rules 1994eeInrespectof the matters which are not in these rulesthe membersof the e4 Serviceshall be bythe of the PunjabCivil Services General andCommon Conditionsof Service9Rules 1994 as amended fromtime to time 33 Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 272 1 0 S t Si CWP No14309 of2010 m6 APPENDIX Bl See IAdministrative Cadre SreNoe ofPoste Bydirect Bypromotionl Direct Bypromotionl appointment Placement ointm Placement ment 1 Director AnimalNil 100 percentby il MS From amongst promotiOtl Degree from the Joint a Directors of University or Administrative Institutionin Cadrewhohave any of the an expenence f branchesof of working as Animal such for a mlnimum 0 and periodof three1 0 Veterinary years Sciencesand iil Should 1 5 have at least ten years expenence 111 a Z positionof teaching research administratio 0 n or planningof live stock develop men Z Relevant extract from nj Civil Services General C Con ConditionsofServices Rules 1994 are hereunder 2 44 1 Shorttitle commencement and These rulesmay be called the PunjabCivil Services General and Common 7 Conditionsof Service9 Rules 1994 2 Theyshallcomeintoforceat once 3 Theyshallapplyto all thepostsin ClassI Class II and ClassIII servicesin connectionwiththeaffairsofthe StateofPunjab 2 In theserules unlessthecontext otherwise requires g Service means any Class I service Class II service or ClassIII serviceconstitutedin connectionwith the affairsofthe Stateof Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 273 Ivl 1 J 1 4 CWP No4309 of2010 7 1 h Service Rules meansthe service rules made under Article 309 of the Constitutionof India the recruitmentand conditionsof serviceotherthan the generaland commonconditionsof service of persons to any service or postin connectionwith the affairsofthe StateofPunjab m 6 Qualiflcations etce to the of these C 0 rules the number and characterof posts methodof recruitmentand 0 educational and for to a postor posts X C in a Serviceandthe examinationif any shallbe suchas may X bespecified in theServiceRulesmadefor thatservice Z Originalrules were amendedvide NotificationsNo GSR 2001 and NoGSl1171ConstIA3091d 12001 Vide these notifications followingamendmentshave been C3 Z introduced The 18 December 2001 QO ae 2 In the of the PunjabCivil Services General Z andCommonConditionsof Service Rules 1994 for theflguresignand tl words ClassI ClassII andClassIII thesignandwords GroupA Group B andGroupC shallbesubstituted The 18 December 2001 4 io Theyshall be d6emedto have into force on and come witheffectfrom the 6 day 2001 33 theamendment was madeon 1812001 however by virtueof subrule l ii ofthe amendedrules the amendmenthas been made we the6 dayof 2001 The relevant clausegiving to the rulesreadsas underl Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 274 0 11 CWP No4309 of2010 The original Rule 18 of theserules was vide 3rd Amendment to therulesbyNo GSR 1171ConstIA3091 2001 ii Theyshallbedeemedto havecome into forceon and witheffectfromthe6 day 2001 1111 AmendedRule 18readsas under 44 18 Promotionto Group A andGroupB services For to thepostas Head wouldbedecided on thebasisofmeritcunseniority as perthe 1 instructionsissuedbytheGovt fromtime to time The 0 benchmarkfor for suchpostwouldbe VeryGood The offlcerwho is graded as would 0 theofficergraded as VeryGood 0 b Fol to postfallingin GroupA otherthan C Head theminimumbenchmarkwill be Very Good asper theinstructionsissuedbytheGovt from time to time Thereshallbeno on thebasisofmerit Z c For to postfallingin GroupB theminimum benchmarkwill be Good andthereshallbe no on thebasisofmerit Rule20 readsas underl 44 200Over efTecteThe of theserulesshall Z haveeffect to thecontrarycontainedin any rules for thetime in forcefor therecruitmentandconditionsof C servlce for to publicservice andpostsin connectionwith the wa Z affairsofthe state 93 Il It is 1aw that when a service is constitutedand establishedby any rules the conditionsof servlce of the membersthereofare and by such rulesframed under proviso to Article 309 of the C of India In theinstant case speciflc rules havebeen framed thePunjabAnimal HusbandrClass Service Rules1996 afterreferredto as the 1996 Rules9By vinue of sub rule io ofRule l these rules have beengiven effect from Rule 50ftheserulesdealswith the method Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 275 1 4 CWP Nol4309 of2010 9 educational and By virtue of these rules to any cadreof serviceis to bemadein themanner specified in B Sub rule io of Rule 5 clearlyprohibits to the serviceunlessa candidatepossessesthe and lIl 5 accordancewith B Sub rule of RulePtOvidesthat the by to the serviceis to be madeon thebasis of m but no personcan claim on the basis of 0 alone Thus thecriteria is Rule 7 0 of the aforesaidrule attracts the of the PunjabCivil Services 0 General c Common Conditionsof Service Rules 1994 herein after referredto as the 1994 Rules in respectof the matters which are not 2 provided in these lles and to that extent the membersof the r service are to be bythe1994Rules On the basisof the ofthe aforesaidrules referredto Z hereinaboveit is argued on behalf of the that the 10 who is seniorto the no2 is entitledto be Oll rm thebasis of laid down criteriaunder the servicerules ie seniorityln Z meritIt is contendedthatthe lSsenior to no2 andthusthe denial to him on theground of so calledmeritis in contraventionto themandateofthe subrule 39of Rule5 which rendersthe considerationby the DPC and 4mm order ofpromotion of no2 as illegalinvalidandnoneest in the oflaw To supporthis contentionMr RajivAtma Ram learnedsenior advocateappearingforthe has referredto a of this Court as 2010 11SCT 337 titled as Dr Ravi Dutt Mehra Vse State ofPunjaband otherseIn this case the to thepostof Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 276 1 70 CWP No14309 of2010 10 Doctor Offlcer was made by a senlor Ayurvedic Medical Officer and thejuniorinvoking Clause of Rule 18 of 1994 Rulesand govt instructionsdated692001 Clause of Rule 18ofthe 1994 Ruleslaysdownthecriteriafor in respectto postsotherthanHead of the for which minimum benchmark will be VeryGood as per instructionsissuedbythe Govt from time to 1 1r time It is also thatthereshallbe no on thebasisof 0 rnerit The writ petitioner in the aforesaidwrit petition had secured 11 0 marks whereasthe in the said case had securedminimum C5 12 benchmarks in tennsof Govt Instructionsdated682001 andthusignoring theseniority of thewrit thereinhisjunlor was Z This court while the held tht in presence C of the specific service rules framedunder provisoto Article 309 Govt Instructionscannot be givenany and the statutoryrules will 3 Z prevailSince thestatutoryrulesdid not any benchmarkandthe QO onlycriteriawas ofthe private a thereinwas set aside However theposition in thepresentcase seems to be Z different In the presentcase theGovt Instructionsdated692001 have 0m been in the form of statutoryrules vide GSR No17 dated 18122001 by Rule 18 of the 1994 rules The fact thatGovt Instructionsdated692001 were in theform of statutoryrulesis C evidentfromtheamendedstatutoryRule 18 Even when the 111 caseof Dr Ravi Dutt Mehrawas deliveredthisamendmenthad come into but not brought to the notice of the Court Here there is an conflict betweenRule 5 read with Appendix B of the 1996Rules and 1994Rules ofDirector Animal is by Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 277 i CWP No14309 of2010 11 from the feeding channel ie the Joint Director who has expenence of workingas such for a minlmum periodof 3 years Some argument1S soughtto be raised by Mr RN Raina learned counsel for no2 in regard to the of the however this question is irrelevantlll this petition as the clam of the petitioner hasnot been for want of but on the 1 ground of lessermeritthan no2 For this purpose 0 0 amendedRule 18 hasbeenpressed into servlce bythe offlcial as also the 0 private Thus the controversyin thepresentpetitionwould C5 remalll confined to the of criteria by the DC for promotion to thepostof Director ie whetherrule of or Z would apply Mr Raina has also arguedthat r no2 hasflled a separate writ petition the ofthe on thedatewhenthevacancy ofDirectorbecameavailable Z Since thiscontroversy is beyond thescopeofthis writ petition andis not in issue thesame is not dilatedupon or dwelledin this case I ClO would conflne the onlyto the question whether meritcumm an Z seniority or is the criteriafor to the fl postofDirector Mr AtmaRams rthercontentionis thatservicerulesof 1996 would have over the 1994Rules To his contention m he has referredto Rule 60f 1994 ruleswhich inter alia Iaysdown that subject to theprovisions of 1994Rules the numberand characterof course methodof recruitmentand educational and for the postor post in a serviceshallbe asmay be specified in the service rules madefor that service In sum andsubstancethe contentionis that Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 278 1 1 e 4 CWP No14309 of2010 m12 even the1994 Rulesgive effect to theservicelrecruitment rules andsincesubrule ofRule 50fthe 1996Rulesprovides to the Class4poston theprinciple of aid of any otherrule or govtinstructionsincluding the1994Rules is in law to either nullil the mandateof sub rule of Rule 50f 1996rulesorm vanance thereo m the contentionof the counsel Mr 0 ChetalMittallearnedAddl AG Punjabhas defendedthe action of the 0 0 in the no2 byrefening to amended t5 rule 18 ofthe 1994 Rules It is admittedposition thatoriginal Rule 18 was substitutedby2001 amendmentand the presentRule 18 Z withthe to the postof Head of the It is deals 0 thatthepostof Director is a postof the Headof the lll the Animal of the Stateof Punjab Rule 18 Z clearlyand laysdown thecriteriafor to thepostof Headof ie It ilrther thatthe C0 benchmark for for suchpostwould be VeryGood nunimum Z and theofflcer who is as would theofficer Lla as VeryGood His is that Rule 18 beinga specialrule whichdealswith the ofHead ofthe to any service it wouldhave an overidingeffectupon Rule 5 of 1996Rules Thus the whichrequires bythis eV Courtis whether Rule 18 of 1994 rules as amendedvide amendment notiflcation dated18122001 would prevailln so farthe of Director who is a Headof or the mandateof Rule 5 3 of 1996 ruleswouldremainin forcedespite theamendment Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 279 4 CWP No4309 of2010 m13 The controversy can be and resolved by of the two sets of rules No doubt the specific servicelrecruitment rulesprimarily andprincipally govemand the servlce conditionsof the membersof service however if the rule itself provides a window for of anyotherrule or law suchotherrule or law hasalsoits to theextent so pennitted bysuchwindow or 1 if any otherlaw or rule containeda clauseor for anyotherruleor law to theextent ofeffect theotherruleor 0 0 law would prevail It is in this legalscenano the two rules are to be t5 examined Rule 7 of the Animal Rules itself directs the application of 1994 Rules in respectof such matters as are not Z provided in the1996Rules Thus when 1996Rules were framedtherule making was consciousof the existenceof the 1994 Rules which may have the effect of even exclusionof speciflc servlce rules Though 1994 Rules are common to all the servlces but contain some special Z prOVlSlOnsbyvirtue of Rule 70f 1996 Rules Thesecommonservice rules f havebeen applied to theextent thereis no provision in the1996 7 Z Rules It is that1996Rulesdo not contain any specificprovision for thepostof Head of It is equallyadmittedpositionthat the Headof as alsothepostof Joint Director are ClassI postswith new nomenclature as ClassA byvirtue of 2001 amendmentto thecommon service rules In absenceof any specificprovision in therecruitmentrules 1ee Animal Rules the 1994 Rules would prevailby virtueof Rule 7 referredto hereinabove Apartfrom aboveRule 60f the 1994 Rules on which much hasbeenlaidbyMr Atma Ram thatthemethodof Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 280 S CWP No14309 of2010 14 recruitmentand etc as underthespecific service rules are subject to the of general and commonconditionsof servlce Rules 1994 The opening sentence ofRule 6 thusreads subject to the oftheserules Theserviceruleswill governtherecruitment etc Thuswherethereis anyvarianceor conflict betweenthespecific rules of a service and the general and common conditionsof servicerules in 1 regardto the method of recruitment educational and C conditionsof service would etc the generaland COmmon 0 0 prevailThis position is hlrther byvirtueof Rule 20 of the t5 generaland commonconditionsof serviceruleswhich givesoveriding effectto thecommon conditionsof servicerulesover all otherrulesto the Z extent thereis any contraryprovision containedthereinfor the recruitment andconditionsof servlce for to publicserviceand in connectionwith theaffairsof the State The noneabstente clause111 Z Rule 20is sufficientenough to ignoreany ruleto theextent of with thegeneral andcommon conditionsofservicerules 10 Mr MittalleamedAddl AG Punjabhas also referredto a 7 Z Division Bench of this Court as 200321SCT 113 In Om this case also theHonble DivisionBenchwas dealing with the to thepostof Chief Town Planner which is a postof theHeadof the The issue was identicalasin thepresentcasewhetherthe 1972rules for the Town PlanningServicewhich providefor 4eme on would prevail or amendedRule 18 which deals with thepostof Head of would prevailThe Honble Division Benchheld that Rule 18 of the generaland common ofservicewouldprevail over theservicerulesbyvirtue ofRule Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 281 CWP No14309 of2010 15e 20 ofthe 1994Rules From the minutesof theDPC held on 19112009 it appears that four eligiblecandidatesincluding the and no2 were consideredfor The mlnimum benchmarkon thebasisof the Govt Instructionswere 15 as officersonlywith VeryGood rating could be considered Record of flve years was considered m Petitioner hadone three VeryGood andone Good ratinglll 0 5 years the date of considerationwhereasthe no C43 had three one VeryGood andone Good ratingin C5 five yearsandhe secured17 benchmarksand ln vlew oftheamendedRule 18 of thegeneral andcommon conditionsof servlce rules no2 Z hasovertakenthe in the1iorityof the over andabove no Thegrading awardedto the candidatesis not disputedBoth Z the andprivate wereheldeligiblebytheCommittee It is on account of the highermerit of no2 that he hasbeen as Director Headofthe 7 Z In view of the abovelegalandfactualpositionI do not find Qe anymerit in this petitionwhich is dismissedhowever with no orderas to costs 4 PERMOD KOHLII IJ JUDGE 1105020110 lucky Whetherto be Yes Il 1 Il Rawat Seema 2014.05.24 16: 49 Scanned True Copy of Original PHHC, Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document