Civil Writ Petition No.1402 of 2009 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 13, 2011 Manoj Kumar & others ...Petitioners Versus State of Haryana & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.R.K.Malik, Senior Advocate with Mr.Kohal Sharma, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for the State. ***** RANJIT SINGH, J. The petitioners have filed this writ petition praying for writ of mandamus to command the respondents to consider their case for promotion to the post of DPE from the date their juniors were promoted by considering them eligible for the said promotion. The basis of this claim arises on account of the facts pleaded that the petitioners as well as the private respondents were selected together as PTIs in the same selection. Subordinate Service Selection Board had determined the merit at the time of selection. In the merit position, the petitioners were at Sr.No.41, 145, 161 and Civil Writ Petition No.1402 of 2009 : 2 : 162 respectively. The respondents, who have been promoted, were shown in the merit list No.85 and 185. It is, thus, claimed that one of the petitioner was senior to both the respondents, whereas remaining petitioners were senior to respondent No.4. As per the rule, 50% posts of DPEs are to be filled up by direct recruitment, whereas 50% are to be filled up by way of promotion. The qualifications for promotion to the post of DPE are as under:- “i) D.P.Ed. from a recognized University. ii) Knowledge of Hindi upto Matric standard. iii) Three years experience on the post of PTI.” The petitioners have averred that they have passed the Matric examination with Hindi and have more than three years experience as PTI as they were appointed on 25.9.2004. As per the petitioners, they are possessing the qualification of M.A. Physical Education or M.P.Ed. Instead of D.P.Ed. The petitioners would also aver that this degree, as per expert reports/certificates is a higher qualification than that of D.P.Ed. in the same line. Their grievance is that respondent Nos.3 and 4, who are junior to the petitioners, were promoted as DPEs on 7.4.2008 without considering the claim of the petitioners, who were senior. They have accordingly approached this court through the present writ petition seeking direction for their promotion to the post of DPE. During the pendency of the writ petition, the respondents have promoted respondent No.4. This was revealed from the short reply filed in response to notice issued to the respondents. The reply would show that the promotions of the petitioners were duly considered by the department and the case of the petitioners was Civil Writ Petition No.1402 of 2009 : 3 : sent before the departmental promotion committee for verification of degree/diploma, on the basis of which petitioner No.4, i.e., Meenakshi PTI was found to be eligible for promotion to the post of DPE Master and was accordingly promoted through a communication dated 16.10.2010. Copy of the promotion order has also been placed on record. As per reply, petitioner Nos.1, 2 and 3 were not found eligible for promotion to the post of DPE Master and accordingly their case was rejected on the ground that they were having inadequate qualification. When the case came up for hearing before the court on 20.8.2010, the counsel for the petitioners had pointed out that petitioner No.4 Meenakshi has passed the Bachelor of Sports and Humanities from Ch.Charan Singh Haryana Agriculture University, Hisar and M.A. in Physical Education from the same University. Manoj Kumar (petitioner No.1) was having a qualification of Bachelor of Sports and Humanities from the same University and had acquired the degree of M.A. in Physical Education from the said University. Similar were the qualifications of petitioner No.2. Finding this to be a anomalous, the court observed that if petitioner No.4 has been held eligible and granted promotion, it was not understood as to how the claim of petitioner Nos.1 and 2 had been declined. On request made by the State counsel, the case was adjourned to enable the counsel to have instructions as to how the petitioners, who had possessed the same qualification from the same University were ignored. After seeking three opportunities, the State counsel has come up with the stand that the petitioners have been promoted w.e.f. 16.1.2010. Copy Civil Writ Petition No.1402 of 2009 : 4 : of this order has also been placed on record and was handed over to the counsel for the petitioners. Mr.Malik, learned senior counsel for the petitioners at that stage made a grievance that the petitioners were entitled to promotion w.e.f. 7.4.2008, which was the date on which their juniors/ respondent Nos.3 and 4 were promoted to the post of DPE. Again the process of seeking time to have instructions followed. Even today, Mr.Rathee has made a request for adjournment to have proper instructions in this regard. Considering that the matter has remained pending for considerable period, the case is taken up for hearing and disposal. Mr.Malik has made reference to the averments made in para No.3 of the writ petition to show the position of the petitioners in the merit, prepared by the Subordinate Service Selection Board. He has also shown the seniority list of respondent Nos.3 and 4. Concededly, petitioner No.1 is senior to both the respondents, whereas petitioner Nos.2, 3 and 4 would be senior to respondent No.4. If respondent No.4 has been promoted w.e.f. 7.4.2008, it would defy logic as to how the petitioners can be denied the same relief. Mr.Rathee has made an attempt to justify this unjustifiable cause. While responding to the submission made by the counsel for the petitioners on the basis of Rule 11 of the Haryana State Education School Cadre (Group-C) Services Rules, 1998 that seniority inter se of the members of the service is required to be determined by length of continuous service on the post in the service, the State counsel pleads for ignoring the proviso. Mr.Malik has highlighted the proviso, which clearly says that in case a member Civil Writ Petition No.1402 of 2009 : 5 : appointed by direct recruitment, the order of merit determined by the Commission or any other recruiting authority as the case may be, shall not be disturbed in fixing the seniority. Mr.Rathee made a futile attempt to show that the length of service will govern the seniority. In my view, it would not be possible to ignore the proviso. The rule has to read as a whole. It would be futile to pursue this line of argument, that the merit as determined by the Selection Authority can be tampered with or disturbed on the basis of length of service if the appointment is in the same selection. That being the position, the seniority has to remain as per the merit determined by the Selection Board. This perhaps is being pleaded to justify this unreasonable advantage advanced to respondent Nos.3 and 4. An attempt made to seek adjournment on the ground that the seniority has so far not been finalised would further strengthen this view. Whatever be the case, the seniority in the cadre cannot be finalised by ignoring the rule position. As per the rule, merit prepared by the Selection Board has to govern fixing of seniority. The petitioners have concededly been promoted. The submission that their degree was considered equivalent to M.A. on the date of their promotion is yet an another attempt to defend a wrong cause. Mr.Malik is fully justified in pointing out that this was the degree on the basis of which their appointment was made. How can then objection now be made to such degree to promote the petitioners from the date as is done. It would be too late in a day for the respondents to consider the authenticity of the degree once the respondents have been duly selected on the basis of that degree and have a continued in the service. Is it only being raised to deny the Civil Writ Petition No.1402 of 2009 : 6 : due right of promotion to the seniors that one defence or the other is being projected. The pleas raised on behalf of the State, therefore, are rejected being bereft of merits. The writ petition is accordingly allowed. The direction is hereby issued to the respondents to promote the petitioners from the date their juniors/respondent Nos.3 and 4 were promoted. They will be entitled to all the consequential benefits, in addition to cost, which is assessed at Rs.15,000/- due to the unreasonable stand of the respondents. July 13, 2011 ( RANJIT SINGH ) ramesh JUDGE