CIVIL WRIT PETITION NO.8813 OF 1993 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 31, 2009 T.R.Makan .....Petitioner VERSUS State of Haryana and another ....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. Kasturi Lal, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. (ORAL) The petitioner, who has retired as Head Clerk, seeks direction for his appointment from a retrospective date with effect from the date his junior was so promoted to the post of Head Clerk. The facts, in brief, are that the petitioner was appointed as a Clerk on 26.5.1951 in P.W.D. Irrigation Department. He was promoted as Sub Divisional Clerk on 26.8.1958 and was confirmed as such w.e.f. 1.11.1966. The petitioner, thus, was senior to Raj Krishan Sharma, which is also evident from the seniority list CIVIL WRIT PETITION NO.8813 OF 1993 :{ 2 }: published in the year 1978, Annexure P-1. The petitioner was thereafter promoted as Accounts Clerk with effect from 18.2.1960 and confirmed with effect from 7.7.1978. However, in the year 1966, the services of the petitioner as Accounts Clerk were transferred to the Beas Satluj Link Project, which, at that time was under the control of the Irrigation Department of the State of Punjab. Subsequently, the control of the said project was brought under the control of Beas Construction Board, an autonomous body under the Government of India. After creation of State of Haryana, the services of the petitioner were finally allocated to the State with effect from 1.11.1966. Thus, he became employee of Irrigation Branch, Public Works Department in the State of Haryana. While working as an Accounts Clerk in the office of Beas Satluj Link Project and before he was allocated to the State of Haryana, the petitioner was promoted as Divisional Accountant by the Accountant General, Punjab. After being transferred to State of Haryana, the petitioner made a representation for his transfer to his parent State of Haryana. He was accordingly posted as Divisional Accountant in Public Health Division, Jhajjar, under the Accountant General, Haryana in April 1979. In June 1983, the petitioner was transferred to S.Y.L. Division, Ambala as Divisional Accountant under Accountant General, Haryana. Thus, the petitioner had worked in foreign service for a considerable period, though he continued to be an employee of Irrigation Department of the State of Haryana. Since the petitioner was an employee of P.W.D. Irrigation, Department of State of Haryana, he continued to hold the lien in his parent service and was, thus, entitled to be considered for promotion to various posts in his parent cadre. It is on this basis, the petitioner CIVIL WRIT PETITION NO.8813 OF 1993 :{ 3 }: has now made a claim in the present writ petition that he should be considered and promoted as Head clerk from the date his junior Raj Krishan Sharma was so promoted. It is averred that Raj Krishan Sharma was promoted as Head Constable with effect from 5.11.1976, when the petitioner was not considered. The petitioner came to know of this fact, when the seniority list of Head Clerks was circulated. He then noticed that his name did not figure therein. The petitioner accordingly filed a representation on 20.3.1986 for inclusion of his name in the seniority list. In response to his representation, the petitioner was informed that his retrospective promotion as Head Clerk will depend upon the enquiry being conducted by the State Vigilance Bureau against him. The petitioner filed yet another representation that order of his promotion dated 7.12.1978 or order cancelling the same dated 24.4.1979 were never communicated to him and, thus, he can not be deprived of his promotion and seniority over Raj Krishan Sharma. The petitioner was also ultimately promoted as Head Clerk with effect from 1.7.1988 and, thus, he claims promotion from the date his junior was so promoted to the post of Head Clerk. The submission of learned counsel for the petitioner is that promotion of person junior to the petitioner, without considering his claim, is illegal and arbitrary, hence would lead to mis-carriage of justice. The writ petition was admitted on 26.7.1993. The petitioner had already retired on 28.2.1990 on attaining the age of superannuation. He has made a claim for promotion as Head Clerk from retrospective date, when his junior was so promoted. Otherwise, the pension and other pensionary benefits of the petitioner have CIVIL WRIT PETITION NO.8813 OF 1993 :{ 4 }: since been released. Written statement has been filed on behalf of respondent Nos.1 and 2. It is pleaded that the writ is bad for non-joinder of necessary party as Raj Krishan Sharma has not been impleaded as party respondent. Plea of limitation is also raised as the petitioner had filed this writ petition in the year 1993 having retired on 28.2.1990. So far as merits are concerned, it is pleaded that while considering the case of eligible persons for promotion, the petitioner was also considered in the year 1978. Rather, he was found suitable and promotion order issued. The petitioner, however, did not join the promotional post. In the promotional order, it was stated that if he failed to join the duties as Head Clerk, he would have to forego promotion forever. It is, thus, stated that the petitioner failed to join the promotional post and hence, he can not know make a claim for promotion from retrospective date. Otherwise, the petitioner has subsequently been promoted. Copy of the promotion order has also been placed on record as Annexure R-1. The primary contention of learned counsel for the petitioner is that the promotion order, Annexure R-1, was never communicated to him, asking him to join and as such, he can not be put to prejudice on this account. It is for the petitioner to establish that this order of promotion was not communicated to him and as such, he could not join. In this regard, the petitioner would refer to an averment made in the petition that he never came to know of the order of his promotion. A perusal of Annexure R-1 would show that copy thereof is addressed to Accountant General, Haryana. This order, thus, was bound to be communicated to the petitioner. The CIVIL WRIT PETITION NO.8813 OF 1993 :{ 5 }: respondent-State had performed its part in sending the copy of the order of promotion to the office where the petitioner was serving. The petitioner has not impleaded Accountant General, Haryana, as a party respondent. If the Accountant General had been impleaded as a party, then the response could have come on record to show if this order was received in the office or not. There is no material to show that this copy was not received in the office of Accountant General. Non receipt of this promotion order by the petitioner, thus, is not established. The respondents can show the order, copy of which was endorsed to Accountant General. It was for the petitioner to implead the proper parties whereas he has even not made Raj Krishan Sharma as a party. He was promoted in the year 1976, which is the basis for the petitioner to seek this retrospective promotion. The petitioner had a right for consideration for promotion, when he became due and when his junior was promoted. The right of consideration was duly given to the petitioner and he was found fit for promotion. The promotion order was forwarded to the office where the petitioner at that time was serving. It is for the petitioner to establish that he could not join on the promoted post because he did not receive the order. The petitioner has not been able to establish that this order was not received by him. The State can not be made to answer or establish the non-receipt as the order was sent to the office, where the petitioner was serving. In the absence of Accountant General, Haryana, the issue can not, thus, be adjudicated. The petitioner otherwise has been promoted. He apparently could not avail the benefit of his promotion, which was CIVIL WRIT PETITION NO.8813 OF 1993 :{ 6 }: ordered. Still, his claim was considered and he has been promoted as such. In this background, the petitioner's case for retrospective promotion is not made out. The writ petition is accordingly dismissed. August 28,2009 ( RANJIT SINGH ) khurmi JUDGE