Civil Writ Petition No.4159 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4159 of 2006 Date of decision: March 19, 2008 Suresh Kumar Sharma and others … Petitioners Versus State of Punjab and others … Respondents CORAM: HON’BLE MR. JUSTICE ASHUTOSH MOHUNTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None. KANWALJIT SINGH AHLUWALIA, J. Suresh Kumar Sharma, Tarlok Singh, Kulbhushan Goyal and Vijay Kumar Sethi had sought a writ in the nature of mandamus for implementation of order dated 2nd June, 2004 (Annexure P-7), wherein it was held that promotions are liable to be made on the basis of seniority in the cadre and not on the basis of the date of passing of the eligibility examination, and directions be given to promote senior most clerks amongst the eligible employees to the post of Accountant (Grade-II) in various Municipal Councils under the control of Department of Local Government, Punjab. Further direction was sought that authorities should promote the petitioners as Accountants with effect from the date, the persons junior to the petitioners were promoted with all consequential benefits in pursuance of order dated 20th August, 2002 (Annexure P-3) passed by the Principal Secretary, Local Government, Punjab (respondent No.1). Vide order (Annexure P-3), Government had considered the case Civil Writ Petition No.4159 of 2006 2 regarding promotion of clerk to the post of Accountant (Grade-II) in various Municipal Councils and held that the senior most eligible employees on the date of consideration for promotion, subject to their qualifying the test as prescribed, in case they have not suffered any other disqualification, should be treated senior most for the purposes of promoting them to the next higher post in the prescribed line of promotion. It was further held that any promotion order in violation of rules should be reviewed by giving show cause notices to the concerned. On 20th June, 2006, this Court issued notice of motion. Thereafter, Additional Secretary to Government of Punjab, Department of Local Government filed a written statement on behalf of respondent Nos. 1 and 2. From the written statement, para 1 and 2 of the preliminary objections are reproduced below: “1. That the post of Accountant in the Punjab Municipal Council Services was constituted by the Government, in exercise of the powers conferred under Section 38 of the Punjab Municipal Act, 1911. To regulate and control the recruitment and other allied conditions of service of all the constituted services including that of Accountant, the Government notified the Punjab Municipal Services (recruitment and condition of service) Rules 1975, (hereinafter referred as “Service Rules”). As per these Service Rules, an employee, who has passed diploma in Municipal Accountancy examination in Grade-B, was declared eligible for promotion and appointment as Accountant. The Service Rules, however, did not provide in specific in respect of fixation of interse eligibility of such employees. In these circumstances, Department of Local Government had been following the policy/ criteria applicable in Department of Finance (Treasury and Accounts) as per which interse seniority of eligible employees was fixed on the basis of date of passing of Accountancy Examination and promotions throughout were made accordingly and this process was never questioned by any of the employee. Civil Writ Petition No.4159 of 2006 3 2. That the present petitioners filed a representation dated 20.08.02 before the Secretary, Department of Local Government interalia praying that the interse claim of employees who have become eligible for consideration for promotion and appointment as Accountant, may be determined on the basis of their length of service and not as per the date of passing of the Punjab Municipal Accountancy examination. This appeal was accepted on 20.08.02 thereby the claim of the petitioner employee was accepted. At this stage, the Department recast the list of all the employees who had passed the Municipal Accountancy examination thereby considering that the orders dated 20.08.02 are to be given effect retrospectively. The list so prepared was circulated amongst all concerned employees. Large number of employees registered their objections interalia praying therein that the order dated 20.08.02, Annexure P/3 cannot be given effect retrospectively. On fair examination of these objections, it was observed that the objections are tenable because the retrospective implementation of order dated 20.08.02, Annexure P/3 would result into unmanageable practical difficulties because number of employees after their promotion as Accountant have been further promoted as Executive Officer and recall/ withdrawal of all such orders of promotion will result into administrative chaos and will also give rise to litigation. Above all, the previous policy of fixation of interse claim of eligible employees on the basis of the date of passing the Municipal Accountancy Examination was not violative of any statutory law or rules and also its legality was never questioned any time here to before. In these circumstances, bonafide decision was taken to clarify that the policy approved in the order dated 20.08.02, Annexure P/3 shall take effect prospectively. Thus, the orders dated 20.08.02, Annexure P/3 is legal, just, fair and Civil Writ Petition No.4159 of 2006 4 equitable, therefore, the writ petition being devoid of any merit is liable to be dismissed.” In response to the reply filed by respondent Nos. 1 and 2, the matter was taken up for arguments and order dated July 27, 2007 passed by this Court reveals that it was stated on the part of the petitioners that they will be satisfied in case promotion is granted to them without any retrospective benefit. The order dated July 27, 2007 is reproduced below: “Learned counsel for the State seeks time to take instructions whether Order, Annexure P-7, has been implemented, in view of statement made on behalf of the petitioners that they are satisfied if now they get promotion without any retrospective benefits. List again on 14.9.2007.” On February 5, 2008 counsel for the State sought time to seek instructions with regard to number of posts of Accountants lying vacant in the Local Bodies Department of State of Punjab. Today, the matter was taken up for hearing. There is no dispute that respondents have admitted that the petitioners are entitled to promotion on the basis of their length of service and the passing of Punjab Municipal Accountancy Examination was only to be construed as eligibility for the promotion. Since, the petitioners themselves have given up their claim of retrospective promotion, therefore, the employees junior to the petitioners, who already stand promoted, need not be disturbed. Therefore, from the date when the counsel for the petitioner had made a statement, i.e. on July 27, 2007, petitioners will be entitled to promotion against the vacancies, which accrued for promotion and will be granted promotion taking into consideration the length of service and seniority as a Civil Writ Petition No.4159 of 2006 5 criteria among the persons available, who have passed the Punjab Municipal Accountancy Examination. With these observations, present writ petition is allowed without any order as to costs. [Kanwaljit Singh Ahluwalia] Judge [Ashutosh Mohunta] Judge March 19, 2008. rps