Civil Writ Petition No. 14416 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 14416 of 2009 Date of decision:-01.09.2011 Bahadur Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. H.K. Aurora, Advocate for the petitioner. Mr. Praveen Chander Goyal, Addl.A.G. Punjab. Mr. Madan Pal, Advocate for respondent No.5. RITU BAHRI J. The petitioner is seeking quashing of order dated 05.8.2009 (Annexure P-1) vide which he has been reverted from the post of Senior Lecturer (Pharmacy) to Lecturer. The petitioner was appointed as Lecturer in Pharmacy vide order dated 05.11.1994. Respondent Nos.3 and 4 were appointed as Lecturer in Pharmacy in 1993. Respondent No.5 was appointed alongwith the petitioner on 05.11.1994. The seniority list dated 23.11.2001 is Annexure P-2. There are four posts of Senior Lecturer (Pharmacy) in different polytechnic Colleges in the Department of Technical Education and Training in the State of Punjab. Vide Government letter dated 10.4.1992 (Annexure P-3) the qualification and mode of recruitment of the said posts was as under :- Civil Writ Petition No. 14416 of 2009 -2- “Senior Lecturer (Pharmacy) 1. (i) M. Pharma in Pharmaceutical Chemistry/ Pharmaceutics/ Pharmaconosy/Pharmacology. (ii) 5 years professional and or teaching experience after acquiring the minimum qualifications out of which two years must be in teaching not below the post of Lecturer. (iii) Knowledge of Punjabi up to matric or its equivalents standards. Mode of Recruitment : i) By promotion from amongst the Lecturers. Provided that the post of Senior Lecturer shall be selection post and promotion to the post shall be made on the basis of merit, seniority and experience. No one shall have any claim whatsoever to such promotion matter of right merely on the basis of seniority. ii) By direct recruitment, if suitable candidate is not available departmentally. iii) By transfer, if a suitable candidate is not available by the aforementioned two methods. C) Age : No person shall be recruited to the service to direct appointment if he is less than 21 years or is more than 35 years of age on the last day fixed by the commission for the receipt of the applications for the post. Vide letter dated 30.8.2000 (Annexure P-4) three Senior Lecturers (Pharmacy) were promoted as Head of the Department. Four posts became vacant for appointment as Senior Lecturers (Pharmacy). In the meantime, the Government of Punjab notified new Rules namely “The Department of Technical Education and Industrial Training (Technical Education Wing) Group A Service Rules, 2001 (in short, the Rules 2001). As per these rules 25% of Senior Lecturers (Pharmacy) were to be filled Civil Writ Petition No. 14416 of 2009 -3- up by direct recruitment and 75% posts by way of promotion. A Departmental Promotion Committee (DPC) was held in the month of November 2003. Out of four posts one post was reserved for Scheduled Caste, two posts were to be filled up from amongst the General Category and one post by way of direct recruitment. On the recommendation of the DPC vide order dated 19.12.2003 (Annexure P-5) the petitioner was promoted as Senior Lecturer Pharmacy alongwith respondent No.3 Bahadur Singh belonging to General Category and respondent No.4-Kamaljit Singh belonging to Scheduled Caste. The bench marks obtained by the petitioner-respondent Nos.3 to 5 and that of Harvinder Singh are as under :- “Name Bench marks Shri Bahadur Singh (respondent No.3) (General Category) 13 Shri Kamaljit Singh (respondent No.4) (S.C) 13 Shri Harvinder Singh (at Serial No.7 of the seniority list) (G.C.) 11 Smt. Vibha Sharma (respondent No.5) (G.C.) 12 Sh. Bahadur Singh (petitioner) (SC) 15” Smt. Vibha Sharma filed a writ petition No.567 of 2004 alleging that the petitioner could not be given the benefit of reservation as Shri Kamaljit Singh-respondent No.4 belonging to reserved category, has been promoted and the reservation was complete with his promotion. This writ petition was allowed vide judgment of the Single Bench dated 5.11.2008. Petitioner challenged the said judgment by filing LPA No.58 of 2009. The Department promoted Smt. Vibha Sharma in compliance of the judgment of this Court dated 5.11.2008 on 06.2.2009 as Senior Lecturer (Pharmacy). Petitioner was reverted vide order dated 18.2.2009 to the post of Lecturer. The reversion order was cancelled Civil Writ Petition No. 14416 of 2009 -4- pursuant to the order passed by this Court on 1.4.2009 (Annexure P-9) whereby petitioner was directed to continue on post on the ground that a vacancy for direct recruit was available and the process of direct recruitment has not been initiated. Vide order dated 6.7.2009 (Annexure P-10) the LPA was disposed of by setting aside the reversion order dated 18.2.2009 reverting the petitioner to the post of Lecturer to enable the Department to consider the case of promotion of Vibha Sharma and petitioner Bahadur Singh and pass an appropriate order. Vide order dated 05.8.2009 (Annexure P-1). The Department again reverted the petitioner from the post of Senior Lecturer (Pharmacy) to the post of Lecturer. Mr. H.P. Aurora, counsel for the petitioner has challenged this order on three grounds :- “1) All the four posts which were to be filled by the DPC in November 2003 were available on 30.8.2000 when three Senior Lecturers (Pharmacy) were promoted as Head of the Department. On this date the new Rules of 2001 had not been notified. These four posts had to be filled vide Government instructions dated 10.4.1992 (Annexure P-3) which were prevalent on 30.8.2000 when the vacancies became available. 2) As per the instructions dated 10.4.1992 (Annexure P- 3) the mode of recruitment of Senior Lecturers was by way of selection on the basis of merit, seniority and experience. No one can claim a right of promotion merely on the basis of seniority. 3) As per 2001 Rules promotion to the post of Senior Lecturer (Pharmacy) was to be made as per following conditions :- “At least five years experience as Lecturer Engineering in the appropriate branch except for Mechanical Engineering branch in which promotion will be made from amongst the Lecturers in Mechanical Engineering and Civil Writ Petition No. 14416 of 2009 -5- Workshop Superintendents on the basis of their merit-cum-seniority to be determined from the date of appointment provided that in case of Workshop Superintendents, the incumbent fulfills the qualifications of Lecturer for direct recruitment.” The order dated 05.8.2009 has been passed on the basis of seniority-cum-merit. The petitioner-Bahadur Singh (S.C.) as per the seniority was junior most but had a bench mark of 15 which entitled him to be promoted over and above Smt. Vibha Sharma (G.C.)-respondent No.k5 who had a bench mark of 12. He has placed reliance on the judgment of the Supreme Court in The Central Council for Research in Ayurveda and Siddha versus Dr. K. Santhakumari AIR 2001 Supreme Court 2306 to contend that when the Rules provide that the selection post required to be filled on the principal of merit-cum- seniority, seniority alone is not the criteria for candidate to claim promotion. Mr. Madan Pal, counsel for respondent No.5 has argued that while disposing of LPA No.58 of 2009 filed by the petitioner liberty was given to the State to re-examine the claim of the appellant viz-a-viz Vibha Sharma in consonance with 2001 Rules. It does not lie in the mouth of the petitioner to say that the new Rules are not applicable and the old instructions dated 10.4.1992 (Annexure P-3) will be followed to fill up three posts of Senior Lecturer (Pharmacy). He has referred to the order dated 5.8.2009 (Annexure P-1) whereby the instructions were issued by the Department on 30.8.2001 whereby the promotion to fill up the post in Group-A a minimum bench mark with at least 12 marks has been prescribed. There would be no supersession apart from meeting the above bench mark. By following these instructions Smt. Vibha Sharma-respondent No.5 in the General Category with 12 marks has been given preference of promotion over and above the petitioner who was at No.5 and Civil Writ Petition No. 14416 of 2009 -6- below to Smt. Vibha Sharma with 15 marks. The petitioner by securing higher bench mark could not claim the promotion over and above his senior Smt. Vibha Sharma. Mr. Praveen Chander Goyal, Addl.A.G. Punjab does not dispute the factual position and argued that once the new Rules of 2001 notified the vacancies which remains available after 30.8.2000 were to be filled by 2007 Rules which provide that 25% posts to be filled by direct recruitment and 75% posts by way of promotion. The Department has four vacancies and therefore one was reserved for direct recruitment and three were to be filled by way of promotion. As per the State Government instructions dated 06.9.2001 (Annexure P-12) for promotion following in Group-A a minimum bench mark of at least 12 marks were necessary. After meeting the bench mark there was no provision for supersession. Smt. Vibha Sharma has rightly been promoted by giving preference over petitioner as she had secured the necessary bench mark of 12, which petitioner being junior had no preferential right to supersede Smt. Vibha Sharma even though he had acquired 15 bench marks. I have heard learned counsel for the parties and have gone through the case file carefully. It is not disputed that on 30.8.2000 four posts became available for promotion to the posts of Senior Lecturer (Pharmacy). The new Rules of 2001 were notified on 13.4.2001. The first question to be settled as whether the four vacancies which were filled up after new Rules were notified would be governed by instructions dated 10.4.1992 (Annexure P-3). In the facts of the present case after the new Rules were notified the DPC could not fill up these posts as there was some litigation regarding seniority pending in the Courts. Thereafter, the Government took a decision to fill up these posts on 25.11.2003. As per the notified Rules 25% vacancies to be filled up by direct recruitment and 75% by Civil Writ Petition No. 14416 of 2009 -7- way of promotion. The post of Senior Lecturer falls in Apendix 'B' at serial No.8. The qualification and experience for appointment by way of promotion is prescribed as under :- “At least five years experience as Lecturer Non-Engineering Programmes in the appropriate branch of Technology.” In Appendix 'A' there are three categories of Senior Lecturers non- engineering at serial No.7 as under :- PUNJAB GOVT. GAZ., APRIL 13, 2001 (CHTR 23, 1923 SAKA) APPENDIX 'A' [See rules 1(3), 4 and 6] Sr. No. Designation of the Post Number of Posts Scale of Pay Permanent Temporary Total 7 Senior Lecturers, Non- Engineering 3 - 3 10025-15100 i) Modern Office Practice ii) Library Science iii) Pharmacy For promotion to the post of Senior Lecturers as per Appendix 'B' only five years experience has been prescribed. The Rule also prescribed that the inter se seniority of Lecturers in the respective branches will be followed. On the other hand at serial No.7 in Appendix 'B' for promotion to the post of Senior Lecturer Non-Engineering the qualification for promotion is five years experience on the post of Lecturers on the basis of their merit-cum-seniority. This condition is absent in the conditions of qualification for promotion in the case of Senior Lecturer Non-Engineering. The Senior Lecturer (Pharmacy) falls in the Senior Lecturer of Non-Engineering as per Appendix 'A' the argument of the counsel for the petitioner that for promotion to the post of Senior Lecturer (Pharmacy) the rule is merit-cum-seniority is liable to be rejected. Even though in the order dated 05.8.2009 (Annexure P-1) this Rule has been quoted. It is apparently a Civil Writ Petition No. 14416 of 2009 -8- mistake on the part of DPC who have considered the promotion of Senior Lecturer (Pharmacy) by applying the above mentioned wrong rule. However, the instructions issued on 6.9.2001/ 30.8.2000 as mentioned in the order that a minimum bench mark of 12 is required for promotion and there would be no supersession with higher bench marks. These instructions have been correctly followed and giving the benefit of seniority and having reached the minimum bench mark of 12 Smt. Vibha Sharma has been rightly promoted as Senior Lecturer (Pharmacy) vide order dated 5.8.2009. Petitioner could not be promoted ignoring the seniority as Smt. Vibha Sharma had the required bench mark of 12. This is the mandate of the Rule of promotion as prescribed in Appendix 'B' of 2001 Rules. As far as the applicability of the new Rules for filling up the posts which became available on 30.8.2000 reference is being made to the Supreme Court judgment in State of Punjab and others versus Arun Kumar Aggarwal and others 2007(3) SCT 136. In this case the question whether the new Rules of 2004 would be applicable to fill up the posts, which became available when the 1941 Rules were valid has been repelled. The Supreme Court came to the conclusion after examining the facts of that case that Government had by conscious decision deferred the holding of DPCs before 2002 Rules came into force. A conscious decision was taken by the Government to constitute DPC in March 2001, April 2001 and November 2001, on 9th January 2002 and 29th May 2002. On all these dates no DPC could be conducted. The Government was conscious in its mind for implementing the new Rules of 2004. When the new Rules of 2004 were notified there was no occasion to filling up the posts under 1941 Rules. The 1941 Rules had been repelled alongwith the relevant instructions when the new Rules of 2004 were notified. Keeping in view the above facts that the Government had taken a conscious decision not to fill up the Civil Writ Petition No. 14416 of 2009 -9- vacancy under that Rules and had valid reasons for doing so. The decision of the Government to fill up the vacancy under the new Rules was upheld by the Supreme Court. The normal rule that old vacancy shall be filled up by that Rule has not been followed by accepting the conscious decision of the Government. In the facts of the present case there was a seniority dispute pending relating to the feeder cadre of Lecturer, which was finalized in November 2001. The Government took conscious decision to fill up the vacancies in 2003 as per the Rules notified on 13.4.2001. While disposing of the LPA a conscious decision has been taken and has not been opposed by counsel for the petitioner that liberty had been granted to the Department to re-examine the issue of promotion in view of 2001 Rules. Therefore, the order dated 5.8.2009 (Annexure P-1) does not suffer from any illegality The writ petition is dismissed. 01.09.2011 ( RITU BAHRI ) Vijay Asija JUDGE