IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. CWP No. 19660 of 2006 Date of Decision: 10.2.2009 Banke Bihari ---Petitioner Vs. State of Punjab and others ---Respondents 2. CWP No. 14991 of 2008 Banke Bihari ---Petitioner Vs. State of Punjab and others ---Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. H.S. Sethi, Advocate for the petitioner. Mr. B.S. Chahal, DAG, Punjab. Ms. Meena Bansal, Advocate for Mr. Sandeep Khunger, Advocate for respondent no.2. *** PERMOD KOHLI.J (ORAL) Both these petitions have been filed by the same petitioner and the relief claimed is inter-related. Hence, these petitions have been taken up together for disposal. Petitioner was initially appointed as Draftsman on 7.5.1980 and thereafter promoted to the post of Head Draftsman on 20.9.1998. Next promotion in the hierarchy of service is to the post of Assistant Town Planner under Punjab Municipal Council Services (Recruitment and Conditions of Service) Rules, 1978. The post of Assistant Town Planner is to be filled up by direct recruitment as also promotion from the feeding channels. 50% of the vacancies are to be filled up by direct recruitment and CWP No. 19660 of 2006 -2- the balance 50% by promotion from three channels on seniority-cum-merit basis. One post of the Assistant Town Planner in the pay scale of Rs.7880-15,560/- was created on 27.2.2001 and the petitioner was given the current duty charge of the said post on the same date. On the basis of some representation the current duty charge was withdrawn w.e.f 3.5.2001 vide order dated 29.4.2001. The order of withdrawal was challenged by the petitioner in CWP No. 680 of 2001. This Court vide its interim order dated 11.5.2001 stayed the order withdrawing the current duty charge. The writ petition was admitted to hearing and the interim order was continued. Said writ petition is pending. While performing his duties as Assistant Town Planner petitioner was served a charge sheet on 2.5.2003 which was replied by him on 8.6.2003. It is alleged that no enquiry has been conducted till date. In the meantime, Manohar Singh Bhatti, respondent no.2 in CWP No. 19660 of 2006 was promoted as Assistant Town Planner vide order dated 29.11.2006 with Endst. Dated 5.12.2006. The promotion of the respondent no.2 is under challenge in CWP No. 19660 of 2006. The official respondents contested the claim of the petitioner for promotion on the ground that the charge sheet for major penalty is pending against him besides criminal proceedings for which FIR No. 17/17/ASR stands registered on 8.4.2003 for offences under Section 420/120-B IPC read with Section 13(2) of Prevention of Corruption Act. It is accordingly stated that the petitioner was ineligible in terms of the Govt. Instructions dated 22.7.1996. The respondents, however, specifically stated that on conclusion of the disciplinary proceedings and the criminal case, the petitioner shall be considered for promotion in accordance with law. During the pendency of CWP No. 19660 of 2006 -3- the aforesaid writ petition the petitioner was discharged from the criminal case. On the basis of the termination of the criminal proceedings the charge sheet against the petitioner was also withdrawn and accordingly the respondents promoted the petitioner vide order dated 5.12.2007. This fact was noticed by this Court in its order dated 6.12.2007 which reads as under:- “ Grievance of the petitioner is that his junior has been promoted on 29.11.2006. Learned counsel for the State says that now the petitioner has also been promoted and his grievance about his junior having been promoted from an earlier date will be considered within one month from today. List again on 10.1.2008.” In terms of the aforesaid order the only question, which was required to be considered by the respondents was the date of promotion. While the aforesaid writ petition CWP No. 19660 of 2006 was pending and the petitioner was promoted, the respondents passed another order dated 14.8.2007 with Endst. Dated 21.8.2007 whereby the promotion granted to the petitioner vide order dated 5.12.2007 has been withdrawn. This order has been made subject matter of challenge in CWP No. 14991 of 2008. From the aforesaid order it appears that the earlier promotion granted to the petitioner has been withdrawn on the grounds that his promotion was made against the vacant post of Building Inspector, whereas all the posts of Assistant Town Planners for the feeding channel of Head Draftsman were already filled. It is accordingly stipulated that the promotion of the petitioner was against the rules. Same is being withdrawn CWP No. 19660 of 2006 -4- after issuing show cause notice to him. I have heard learned counsel for the parties at length. Mr. Sethi, learned counsel for the petitioner has raised two questions. (1) That at the time of passing of impugned order dated 14.8.2008 a post of Assistant Town Planner meant for the feeding channel of Head Draftsman was available. (2) The promotion made vide order dated 5.9.2007 was on regular substantive basis against an available vacancy of Assistant Town Planner. It could not have been withdrawn even if, it was meant for another feeding channel i.e. Building Inspector, the same being in relaxation of the rules. Reference is made to the reply to the show cause notice. Petitioner has placed on record copy of the show cause notice dated 15.4.2008 issued under Endst. Dated 22.4.2008 (Annexure P-5). This show cause notice contained the same grounds, which are incorporated in the impugned order. Petitioner's reply to the show cause notice dated 9.5.2008 is on record as Annexure P-6. Petitioner specifically pleaded that a post of Assistant Town Planner for the feeding channel of Head Draftsman was created on 28.2.2001 and petitioner was given current duty charge of the same which charge he continued to hold till date of his regular promotion on 5.12.2007 and thus the impugned order has been passed on wrong premises. In the reply filed in the second writ petition it has been admitted that the disciplinary proceedings stand terminated as the petitioner has been exonerated by the Enquiry Officer. Though, it is reiterated that the petitioner was promoted on 5.12.2007 against the quota meant for the Building Inspector. During the pendency of this petition, it was brought to the notice of this Court that one post of Assistant Town Planner is lying CWP No. 19660 of 2006 -5- vacant in the department for the quota of Head Draftsman. Accordingly, on 14.12.2008 learned counsel for respondent-State was directed to seek instructions whether the Govt. intends to fill up the post. In compliance to the aforesaid order an affidavit of Mr. M.P. Arora, PCS, Additional Secretary to Govt. has been filed. The relevant extract from the affidavit reads as under:- “ That the matter has been considered by the Govt. and it has been decided to fill up the two vacant posts of promotional quota of Assistant Town Planner from the feeder cadre employees of the Municipal Corporation i.e. On post from Head Draftsman and the other from Building Inspector (Technical) in due course.” From the above affidavit, it is crystal clear that one vacancy of Assistant Town Planner for the feeding channel of Head Draftsman is lying vacant. The State has further expressed its intention to fill up the vacancy in due course. It is sorry state of affairs . On the one hand a clear vacancy is available in the feeding channel of Head Draftsman to which the petitioner belongs. On the other hand, petitioner's regular promotion has been withdrawn on the ground that no vacancy is available in the category to which the petitioner belongs. It is admitted case that the petitioner is the senior most Head Draftsman. His promotion vide order dated 5.12.2007 was on regular substantive basis, though on probation for one year. His promotion has been withdrawn only on the solitary ground of non- availability of vacancy for the relevant feeding channel. Since a clear vacancy is available and the petitioner on consideration by the competent authority was promoted on regular basis. The withdrawal of the order of promotion is unwarranted. Even if, it is assumed that at the time of granting CWP No. 19660 of 2006 -6- promotion to the petitioner on 5.12.2007 there was no vacancy of Assistant Town Planner for the feeding channel of Head Draftsman but the State decided to promote him. It is deemed to be in relaxation of the quota. It is necessary to examine the relevant recruitment rules. Same are noticed hereunder:- “ 5. Method of recruitment:- (1) Recruitment to the posts in a Service at the time of its initial constitutions shall be made by the appointing authority by absorption of persons already in the service of a Municipal Corporation in a corresponding post at the time of the constitution of the service, provided they are found fit by an authority appointed by the Government in this behalf for becoming members of the service after taking into consideration their qualifications and service record. (2) After filling in the vacancies under sub-rule (1), the remaining vacancies and the vacancies which may occur thereafter shall be filled up in the following manner:- (i) Fifty per cent by direct recruitment; and (ii) Fifty per cent by promotion on seniority-cum-merit basis. Provided that if no suitable candidate is available for appointment by direct recruitment or by promotion, the vacancy may be filled up by transfer or on deputation. Provided further that if no qualifications have been specified in Appendix 'B' for the purpose of filling up the same by promotion, the posts in that service shall be filled up by direct recruitment. (Provided further that the vacancies of Assistant Corporation Engineer shall be filled up in accordance with the following roster. CWP No. 19660 of 2006 -7- ____________________________________________________________ Source of Recruitment of Proportion Allotment to each source in a lot forty vacancies. ____________________________________________________________1 1. Direct appointment 20 4 4 4 4 4 2. Promotion from sectional 10 2 2 2 2 2 Officers. 3. Promotion from Head 4 1 0 1 1 1 Draftsman or Draftsman. 4. Promotion from Sectional 6 1 2 1 1 1 officers, Head Draftsman or Draftsman with B.E. Or A.M.I.E Degree of a Recognized University. ____________________________________________________________ Note:- If no suitable candidate is available from source no.4 vacancies shall be filled up by direct recruitment.)” Rule 21. Power to relax:- Where the Government is satisfied that it is necessary or expedient to do so, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules, except the educational qualifications and experience, with respect to any class or category of persons.” Rule 5 deals with the method of recruitment and its sources have been prescribed as noticed herein above. Rule 21 deals with the powers to relax and clearly provides for relaxation except the educational qualifications and experience. Its natural corollary is that the relaxation in respect of quota is permissible. Even though, promotion of the petitioner vide order dated 5.12.2007 does not indicate that it is in relaxation of the quota rule but it is deemed to have CWP No. 19660 of 2006 -8- been based in relaxation of the quota. A Constitution Bench of this Court in AIR (1990) SCC 1607 has laid down the following proposition:- “(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.” Even if, it is assumed that the petitioner's promotion on 5.12.2007 was in violation of the quota, however, at the time of passing of the impugned order of withdrawing the substantive promotion a vacancy belonging to the category to which the petitioner belongs had become available which fact is clearly admitted in the affidavit dated 10.2.2009 filed in response to the Court's directions. A similar issue had also came up for consideration before Hon'ble the Supreme Court in Ram Sarup Vs. State of Haryana and others (1979) 1 SCC 168, wherein it was observed as under:- “ The question then arises as to what was the effect of breach of clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of Labour Laws in any one of the three capacities mentioned in clause (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. The appellant worked as CWP No. 19660 of 2006 -9- Labour-cum-Concilliation Officer from January 1, 1968 and that being a post higher than that of Labour Inspector or Deputy Chief Inspector of shops or Wage Inspector, the experience gained by him in the working of Labour Laws in the post of Labour-cum-Conciliation Officer must be regarded as sufficient to constitute fulfilment of the requirement of five years' experience provided in clause (1) of Rule 4. The appointment of the appellant to the post of Labour-cum-Conciliation officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour- cum-Conciliation Officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical officer. The order of reversion passed against the appellant, was, therefore, clearly illegal and it must be set aside.” Even on facts the specific averment in the writ petition that post of Assistant Town Planner was created on 27.2.2001 which was occupied by the petitioner on current duty charge has not been denied. Petitioner continued to hold that post. This is also an indicator that the said post was meant for the category of Head Draftsman to which the petitioner belongs. Vide the impugned order only the petitioner's regular promotion has been withdrawn but he continued to hold the current duty charge, which was held by him since 2001 and is protected by interim order passed in CWP No. 6810 of 2001 pending till date. In view of the fact that petitioner was regularly promoted vide order dated 5.12.2007 he was eligible and qualified in all respects. Promotion has been solely withdrawn for non-availability CWP No. 19660 of 2006 -10- of the vacancy in the category and not on any other count. In view of these circumstances, instead of issuing a direction for consideration of the petitioner for promotion, the petitioners regular promotion made vide order dated 5.12.2007 has to be protected. In the totality of these circumstances, this petition is allowed. Impugned order dated 14.8.2008 (Annexure P-7) passed in CWP No. 14991 of 2008 is hereby quashed and the order of substantive promotion dated 5.12.2007 is hereby restored with all consequential benefits. No order as to costs. (PERMOD KOHLI) JUDGE 10.2.2009 lucky Whether to be referred to the Reporter? Yes.