Punjab-Haryana High Court
Harpal Singh vs State Of Punjab & Others --Respondents on 8 January, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No.9380 of 2011 (O&M)
Date of Decision: 08.1.2013.
Harpal Singh --Petitioner
Versus
State of Punjab & others --Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Mr. Gurminder Singh, Advocate for the petitioner.
Ms. Sudeepti Sharma, D.A.G., Punjab.
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TEJINDER SINGH DHINDSA.J The petitioner questions the validity of the order dated 19.4.2011 (Annexure P-12) passed by the Principal Secretary to Govt., Department of Research & Medical Education, Punjab, whereby the promotion granted to the petitioner on 27.11.2007 to the post of Assistant Professor (since re-designated as Associate Professor) has been cancelled and the petitioner has been reverted to the post of Lecturer.
Brief facts of the case are that the petitioner, who holds the qualification of Master of Pharmacy joined as Demonstrator in the Department of Pharmacy, Govt. Medical College, Patiala on 29.5.1995. Prior thereto the petitioner served as Lecturer in G.H.G Khalsa College of Pharmacy Gurusar Sadhar Ludhiana from 3.1.1991 to 30.11.1991. The petitioner, thereafter served as Lecturer from 1.12.1991 to 30.11.1992 at Adesh College of Pharmacy, Muktsar. The petitioner also served on the post of Lecturer at Guru Kashi College, Patiala from 2.12.1992 to 1.5.1995. While working on the post of Demonstrator the petitioner was promoted to the post of Lecturer vide order dated 17.7.2006 on the basis of the CWP No.9380 of 2011 (O&M) -2- recommendations of a Departmental Promotion Committee. In the year 2007 applications were invited through proper channel for considering the eligible candidates for promotion to the vacant post of Assistant Professor in Pharmacy. It has been pleaded that the petitioner being fully eligible in terms of possessing the requisite qualifications as also experience submitted his application on 19.3.2007. Proceedings of the duly constituted Departmental Promotion Committee were held on 12.6.2007 chaired by respondent no.1. In pursuance to the recommendations of such Departmental Promotion Committee the petitioner as also one Dr. Raman Sharma were appointed as Assistant Professor in the subject of Pharmacy vide order dated 27.11.2007 (Annexure P-7). A perusal of such order dated 27.11.2007 would reveal that the petitioner had been promoted as Assistant Professor (re-designated as Associate Professor) against the vacant post of direct quota on ad hoc basis while Dr. Raman Sharma was promoted against the vacant post of promotion quota.
Aggrieved of his wrongful placement as also of the fact that Dr. Raman Sharma did not even possess the requisite qualifications for being considered to be promoted to the post of Associate Professor the petitioner filed CWP No. 16145 of 2009 titled as Harpal Singh Vs. State of Punjab & others praying for issuance of a writ in the nature of Quo Warranto against the appointment of Dr. Raman Sharma as Associate Professor, who was impleaded as party-respondent no.4 in the aforementioned writ petition. The State Govt. filed a reply taking a stand that the matter was under re- consideration and it had been found that Dr. Raman Sharma, respondent no.4 therein did not fulfill the eligibility criteria as regards the qualifications in terms of the Punjab Medical Education Service (Class-I) Rules, 1978 and CWP No.9380 of 2011 (O&M) -3- the Punjab Medical Education Service (Class-I) 1st Amendment Rules, 1985 and that the matter was being referred to a review D.P.C for taking an appropriate decision. Accordingly, CWP No. 16145 of 2009 came to be disposed of in terms of order dated 4.1.2011 with a direction to the respondents to complete the process of re-consideration at the hands of the review D.P.C and for the appropriate orders to be passed within a period of one month. The order dated 4.1.2011 passed by a Co-ordinate Bench of this Court in CWP No. 16145 of 2009 was in the following terms:-
" Reply filed on behalf of respondents no.1 & 2 has been taken on record. Copies furnished to other sides.
The petitioner has challenged the appointment of respondent no.4 to the post of Assistant Professor (Re- Designated as Associate Professor) on the ground that the said respondent was not eligible at the time of promotion.
In the reply filed, it has been specifically stated that the issue has been re-considered and on scrutiny, it has been found that respondent no.4 did not fulfill the eligibility criteria pertaining to the qualification as per the Punjab Medical Education Services (Class-I) Rules, 1978 and the Punjab Medical Education Services (Class-I) (First Amendment) Rules, 1985.
The sum and substance of the reply is that the respondent no.4 was ineligible at the time of promotion. It is, however, stated by the respondents that in view of the Punjab Govt. Instructions Manual Vol. III in the event an employee is found to be ineligible, the matter has to be referred to the review D.P.C. It is stated that the matter is referred to the review D.P.C for taking appropriate decision.
In view of the above circumstances, this petition is disposed of with a direction to the respondents to complete the process of re-consideration by the review D.P.C, within a period of two months and on consideration by the review CWP No.9380 of 2011 (O&M) -4- D.P.C, the appropriate order may be passed within a period of one month thereafter.
Sd/-(Permod Kohli) Judge."
In pursuance to the order dated 4.1.2011 passed by this Court the meeting of the review D.P.C was held on 18.3.2011. Prior to convening of the meeting the petitioner as also Dr. Raman Sharma were afforded an opportunity of personal hearing and it is in pursuance to the recommendations of such review D.P.C meeting held on 18.3.2011 that the impugned order dated 19.4.2011 (Annexure P-12) has been passed withdrawing the order of promotion of the petitioner to the post of Associate Professor and reverting him to the post of Lecturer.
Learned counsel for the petitioner would refer to the statutory provisions namely the Punjab Medical Education Service (Class-I) Rules, 1978 as amended up to the year 1985, wherein qualifications for purposes of appointment to different posts including that of an Assistant Professor (re- designated as Associate Professor) have been provided in Appendix 'C' to the rules. The relevant extract of Appendix 'C' reads in the following terms:-
Assistant Professor Ph.D. (Pharmacy) in any of the Should have teaching of Pharmacy allied subject of Pharmacy or experience as Lecturer in M.Pharmacy Pharmacy for a minimum period of three years OR Should have teaching experience as Lecturer in Pharmacy for a period of five years.
Note:- Preference will be given to the candidates having qualification of Ph.D."
Counsel would, accordingly, argue that the petitioner possesses the requisite qualification of M. Pharmacy and also had the requisite CWP No.9380 of 2011 (O&M) -5- teaching experience as Lecturer in Pharmacy for a period of five years in terms of taking into account his entire experience on the post of Lecturer both in private colleges as also on the post of Lecturer in the Govt. Medical College, Patiala. It has been argued that the impugned order, wherein it has been held that the petitioner does not possess the requisite experience is on the face of it erroneous as the petitioner possessed the experience of five years on the post of Lecturer even on the date of submission of his application i.e. 19.3.2007. It has been further argued that the petitioner had been considered eligible in the meeting of the D.P.C held on 12.6.2007 and accordingly, he had been promoted to the post of Assistant/Associate Professor. The review D.P.C had been convened only in pursuance to the petitioner having raised a challenge to the promotion of an ineligible candidate i.e. Dr. Raman Sharma and as such there was no occasion for holding the promotion of the petitioner to be bad on the ground of ineligibility as regards experience. Learned counsel would further argue that the impugned order suffers from a total non-application of mind and is perverse.
Reply has been filed on behalf of the State, wherein the impugned order is sought to be justified on the ground that both the petitioner as also Dr. Raman Sharma were ineligible to be considered for promotion for the post of Assistant Professor (re-designated as Associate Professor) in Pharmacy at the time of meeting of the D.P.C held on 17.6.2007 and accordingly, the matter was re-considered at the hands of the review D.P.C, wherein a decision has been taken holding both the petitioner as also Dr. Raman Sharma to be ineligible for the post of Associate Professor and accordingly their orders of promotion have been cancelled.CWP No.9380 of 2011 (O&M) -6-
Learned State counsel would argue that as regards experience of working on the post of Lecturer in Pharmacy is concerned, the petitioner had worked for a period in excess of four years in private colleges prior to his appointment in the Punjab Medical Education Service and such experience would not count while determining eligibility for consideration for the post of Associate Professor under the statutory rules.
Learned counsel for the parties have been heard at length and the pleadings on record have been perused.
The statutory provision laying down the eligibility for purposes of promotion to the post of Assistant/Associate Professor in Pharmacy is couched in categoric terms. A candidate to be eligible for consideration for the post of Associate Professor in Pharmacy must possess the qualification of Ph.D, Pharmacy in any of the allied subject of the Pharmacy coupled with a teaching experience as Lecturer in Pharmacy for a minimum period of three years or must possess the qualification of M. Pharmacy and should have a teaching experience as Lecturer in Pharmacy for a period of five years. A close scrutiny of the impugned order dated 19.4.2011 (Annexure P-12) would reveal that the basis of cancellation of the orders of promotion of the petitioner to the post of Associate Professor in pursuance to the D.P.C meeting dated 12.6.2007 is that he did not fulfill the requisite experience in terms of the statutory rules. The relevant extract of Appendix 'C' to the 1978 Rules as amended till 1985 do not create any distinction between teaching experience on the post of Lecturer in Pharmacy, be it in a private college or under the Punjab State Medical Education Service. The principles relating to interpretation of statutes are well settled inasmuch as where the language of the statutory provision is clear and unambiguous then CWP No.9380 of 2011 (O&M) -7- the Courts would not proceed to add or subtract words or read something into the provision which is not there. The stand of the State Govt. in not counting the teaching experience of the petitioner on the post of Lecturer, Pharmacy in a private college would amount to reading something alien into the rules. The same would not be permissible in law.
Ostensibly the impugned order dated 19.4.2011 (Annexure P-
12) has been sought to be improved upon in terms of taking a stand in the written statement filed on behalf of respondents no.1 and 2 in the nature of an affidavit dated 25.11.2011 of the Joint Director, Research & Medical Education, Punjab stating that the petitioner while working in the private colleges on the post of Lecturer did not possess the requisite qualification of M. Pharmacy and accordingly such experience would not be admissible while determining the eligibility for consideration for purposes of promotion to the post of Associate Professor. Such reasoning/basis does not form part and parcel of the impugned order. The validity of the impugned order in the instant writ petition would require adjudication in terms of the reasons mentioned in the order and it would not be open for the State Govt. to supplement and justify the same in terms of furnishing fresh reasons as sought to be done in the reply filed on behalf of respondents no.1 and 2. Such proposition in law was crystalized by their lordships of the Hon'ble Supreme Court in a Constitution Bench judgement titled as Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others reported as (1978) 1 SCC 405 and it had been held in the following terms:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so CWP No.9380 of 2011 (O&M) -8- mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
The impugned order is completely bereft as regards any reasoning on the basis of which the experience of the petitioner on the post of Lecturer, Pharmacy in the private colleges has not been counted towards determining his eligibility for consideration of promotion to the post of Associate Professor, Pharmacy. The pleadings on record would clearly reveal that as on the date of his initial promotion to the post of Associate Professor the petitioner possessed the requisite qualifications of M. Pharmacy as also had teaching experience of more than five years on the post of Lecturer, Pharmacy. The impugned order, accordingly, is held to be bad in law.
It would require notice that this Court while issuing notice of motion on 25.5.2011 had stayed the operation of the impugned order dated 19.4.2011 (Annexure P-12). In other words, the petitioner has continued on the post of Assistant Professor/Associate Professor w.e.f. 27.11.2007 till date. As such, till date the petitioner is possessed of a teaching experience CWP No.9380 of 2011 (O&M) -9- in excess of five years even on the promoted post/higher post i.e. Associate Professor, Pharmacy.
For the reasons recorded above, the present writ petition is allowed. The impugned order dated 19.4.2011 (Annexure P-12) qua the petitioner is set aside and it is held that the petitioner was rightfully promoted to the post of Assistant Professor (since re-designated as Associate Professor) on 27.11.2007. Consequently, the reversion of the petitioner to the post of Lecturer is also held to be bad in law.
Petition allowed.
(TEJINDER SINGH DHINDSA) JUDGE 08.1.2013.
lucky Whether to be reported? Yes.