Punjab-Haryana High Court
Ravinder Nath Kaushal Son Of Shri Ram ... vs State Of Haryana And Others on 9 May, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 16157 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 16157 of 2010
Date of Decision: 09.05.2012
Ravinder Nath Kaushal son of Shri Ram Dutt Kaushal
.....PETITIONER
VERSUS
State of Haryana and others
.....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
PRESENT:Mr. J.S.Maanipur, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana,
for respondents No. 1 and 2.
Mr. Anil Shukla, Advocate,
for respondent No. 5.
AUGUSTINE GEORGE MASIH, J.
Petitioner has approached this Court praying for a writ of mandamus directing the official respondents to consider and promote the petitioner as Labour Officer-cum-Conciliation Officer against the vacancies which became available under the quota of Labour CWP No. 16157 of 2010 2 Inspectors especially the one which became available on 01.10.2009 on super-annuation of Sh. B.S.Yadav, Labour Officer-cum- Conciliation Officer or with effect from the date when respondents No. 3 and 4 were promoted in the Ministerial quota i.e. 22.04.2010 Counsel for the petitioner contends that with an intention to help respondent No. 5-Sh. D.D.Atri, who belongs to the Labour Inspector cadre and is senior to the petitioner, respondents have, despite the recommendation of the name of the petitioner by the Departmental Promotion Committee (hereinafter referred to as 'DPC') held on 05.07.2010 for promotion to the post of Labour Officer-cum- Conciliation Officer, not given effect to the same as on the said date. Respondent No. 5 was not eligible for consideration for promotion as he did not possess the required experience after having acquired the qualification for the post. Instead of giving effect to the DPC recommendation, a fresh DPC meeting was held on 29.09.2010 where the name of respondent No. 5 stands recommended as in the meantime, he had acquired the prescribed experience of three years after attaining the requisite qualifications and being senior to the petitioner. This, the counsel contends, is violative of the principle of equality enshrined under Article 14 of the Constitution of India as promotion to the post of Labour Officer-cum-Conciliation Officer has been intentionally delayed with a mala-fide intention to help respondent No. 5 and to not grant promotion to the petitioner. He further submits that respondent No. 5, during the pendency of the CWP No. 16157 of 2010 3 present writ petition, stands promoted to the post of Labour Officer- cum-Conciliation Officer vide order dated 06.11.2010 which cannot sustain and, therefore, prays for quashing of the said order and promoting the petitioner to the post of Labour Officer-cum- Conciliation Officer or in the alternative, he submits that the petitioner be promoted from the date respondent No. 5 has been promoted and he be ranked senior to him. He places reliance upon a judgment of the Supreme Court in the case of Shailendra Daria and others vs. S.P.Dubey and others, 2001 (3) SCT 1, to contend that the essential qualification for promotion has to be taken into consideration at the time of consideration or when the DPC is held and a person, who becomes eligible subsequently, if he is not found eligible earlier for promotion, would not be entitled to consideration and the eligible person, at the time of holding of the first DPC, would have a prior right of promotion. He, accordingly, prays that the present writ petition deserves to be allowed.
On the other hand, counsel for the respondents although do not dispute the fact that at the time when DPC dated 05.07.2010 was held, respondent No. 5 was not eligible for promotion as he lacked requisite experience but a person, who is eligible for promotion and whose senior has yet not been promoted, cannot pray for a direction to fill up the post as the decision to fill up a vacancy or not vests with the employer for any good reason, be it administrative, financial or based upon some policy. A further contention has been CWP No. 16157 of 2010 4 raised that respondent No. 5 had filed a suit for permanent injunction and consequential relief for mandatory injunction, wherein the trial Court, vide order dated 15.06.2010, was pleased to issue a temporary injunction to the respondents to consider the claim of the plaintiff (respondent No. 5 herein) for promotion and his juniors shall not be promoted unless he is found unfit for promotion on any ground. The case when came up for further consideration on 02.08.2010, a further direction was issued by the trial Court to consider the name of respondent No. 5 for promotion. As per the directions issued by the trial Court, names of the petitioner and respondent No. 5 were considered by the DPC in its meeting held on 29.09.2010 and as respondent No. 5 had fulfilled, by that time, the prescribed experience, his name for promotion was considered and recommended, which was accepted by the competent authority. An order dated 16.11.2010 promoting him to the post of Labour Officer- cum-Conciliation Officer was passed (Annexure R-1). Accordingly, it has been prayed that the present writ petition does not have any merits and deserves to be dismissed.
I have heard counsel for the parties and have gone through the records of the case.
Petitioner was appointed as a Labour Inspector by direct recruitment against an ex-serviceman quota and he joined on 19.11.1992. The services of the petitioner and the private respondents are governed by the Haryana Labour Department CWP No. 16157 of 2010 5 (Group-B) Service Rules, 1987 (hereinafter referred to as '1987 Rules').
Rule 7 of the 1987 Rules provides qualifications which reads as follows:-
"7. Qualifications.- No person shall be appointed to any post in the Service, unless he is in possession of qualifications and experience specified in column 3 of Appendix B to these rules in the case of direct recruitment and transfer or deputation and those specified in column 4 of the aforesaid Appendix in the case of appointment by promotion.
Provided that in the case of direct recruitment, the qualifications regarding experience shall be relaxable to the extent of 50% at the discretion of the Commission or any other recruiting authority in case sufficient number of candidates belonging to Scheduled Castes, Backward Classes, Ex-servicemen and Physically Handicapped candidates, possessing the requisite experience, are not available to fill up the vacancies reserved for them, after recording reasons for so doing in writing."
As per the above Rule, the qualifications and experience, as provided in Appendix-B, Column 4 in the relevant portion thereof CWP No. 16157 of 2010 6 read as follows:-
"APPENDIX B Serial Number Designation of posts Academic Academic qualifications and qualification and experience, if any for experience, if any, for direct recruitment or appointment by transfer or deputation promotion
1. 2. 3. 4.
1 to 3 XXX XXX XXX
4. Labour Officer-cum- (1) Graduate from a (1) Graduate from Conciliation Officer recognized university recognized university.
with Economics or
(2) Degree or Diploma
Public Administration
in Social Work or
or Commerce or
Labour Welfare or its
Sociology or
equivalent from any
Psychology or Law
recognized university
Degree with Labour
or institution.
Laws as one of the
subject. (3) Three years
experience as
(2) Degree or Diploma
Superintendent or
in Social Labour Work
Head Assistant or
or welfare or its
Legal Assistant or
equivalent from any
Labour Inspector.
recognized university
or institution. (4)Adequate
knowledge of Hindi.
(3) Adequate
knowledge of Hindi.
5 to 8 XXX XXX XXX
Note:-For all appointments requisite experience shall be counted after attainment of qualifications/training."
A perusal of the above would show that as per Note to Appendix B, requisite experience shall be counted after attaining the qualifications/training for appointment, meaning thereby that mere possession of qualifications would not confer a right of promotion unless the requisite experience, as prescribed under the Rules, has CWP No. 16157 of 2010 7 been attained after obtaining such qualifications.
Rule 9 of these Rules provide the method of recruitment and the relevant Rule would be Rule 9 (1) (d), (2) and (3), which reads as follows:-
"9. METHOD OF RECRUITMENT.- (1) Recruitment to the Service shall be made:-
xxx xxx xxx
xxx xxx xxx
(d) in case of Labour Officer-cum-Conciliation Officer,-
(i) 50% by direct recruitment; and
(ii) 40% by promotion from amongst the Labour
Inspectors and 10% by promotion from amongst Superintendents or Head Assistants or Legal Assistants; or
(iii) by transfer or deputation of an officer/official already in the service of any State Government or the Government of India;
xxx xxx xxx xxx
xxx xxx xxx xxx
(2) All promotions unless otherwise provided, shall be made on seniority-cum-merit basis and seniority alone shall not given any right to such promotions.
(3) For all promotions which are to be made from more than one cadre their inter se seniority for the purpose of promotion shall be determined CWP No. 16157 of 2010 8 by the date of continuous appointment in the respective cadres."
As is apparent from the above Rule, 50% of the posts are to be filled up by direct recruitment, 40% are to be filled up by promotion amongst the Labour Inspectors and remaining 10% by promotion amongst the Superintendents or Head Assistants or Legal Assistants. Another source for filling up the post has been provided under the Rules i.e. by transfer or deputation, with which there is no concern in the present case.
With this background, I now proceed to consider the claim, which has been made by the petitioner through the present writ petition. It is not in dispute that in the feeder cadre i.e. the Labour Inspector, petitioner is junior to respondent No. 5 as respondent No. 5 was appointed prior to the petitioner. However, as per the above Rule, seniority alone does not give a person any right to promotion unless he is eligible under the statutory Rules for promotion. Petitioner possesses LL.B. degree as he had passed the same in the year 1986 i.e. even prior to his appointment to the post of Labour Inspector in the year 1992. Respondent No. 5 acquired the qualifications of Post Graduate Diploma in Industrial Relations and Personnel Management on 20.07.2007. As per the statutory Rules, respondent No. 5 could not have been considered for promotion to the post of Labour Officer-cum-Conciliation Officer prior to 20.07.2010 as he was required to have three years experience as Labour Inspector for becoming eligible for promotion. CWP No. 16157 of 2010 9
The first DPC meeting was held on 05.07.2010, on which date respondent No. 5 lacked the requisite experience of three years after acquiring the essential academic qualifications. The DPC had been served with the order dated 15.06.2010 passed by the Civil Judge (Sr. Division), Faridabad in a suit for permanent injunction with consequential relief of mandatory injunction instituted by respondent No. 5 directing the respondents that if any promotion is made on the post of Labour Officer-cum-Conciliation Officer, case of respondent No. 5 shall be considered and his juniors shall not be promoted unless he is found unfit for promotion on any ground. The DPC, accordingly, considered the claim of the petitioner as also respondent No. 5 and found that respondent No. 5 did not possess the requisite statutory experience after attaining the academic qualification for promotion and petitioner being fully eligible, his name was recommended for promotion. Before the recommendation made by the DPC could be accepted by the Government, the case again came up before the trial Court on 02.08.2010 when the counsel for the plaintiff stated that the respondents had already constituted a DPC and are bent upon passing order without considering the name of respondent No. 5 for promotion. The Court, in those circumstances, directed that if a case is made out when the Committee again sits for deciding on the point of promotion, the name of the petitioner (respondent No. 5 herein) be considered. As per directions of the trial Court, name of respondent No. 5 along with CWP No. 16157 of 2010 10 petitioner was again considered by the DPC in its meeting held on 29.09.2010 where the DPC, as respondent No. 5 had meanwhile acquired the prescribed experience of three years and was also senior to the petitioner as Labour Inspector, recommended the name of respondent No. 5 for promotion. Government accepted the said recommendation and promoted respondent No. 5 vide order dated 16.11.2010 to the post of Labour Officer-cum-Conciliation Officer.
It would not be out of way to mention here that the post falling to the quota of Labour Inspector became available on 01.10.2009 on retirement of Sh. B.S.Yadav, Labour Officer-cum- Conciliation Officer on super-annuation, who belonged to the Labour Inspector cadre. No effort was made to fill up the post from the Labour Inspector cadre when the vacancy became available, on which date also, petitioner was eligible for promotion. The post falling in the quota of Ministerial cadre fell vacant on 31.03.2010 on retirement of Sh. Sukhdev Singh, who was promoted from the ministerial cadre. A DPC meeting was immediately fixed up and the case of both the categories i.e. Labour Inspector Cadre and Ministerial Cadre was considered in the DPC meeting held on 05.07.2010. It is in this meeting that the recommendations were made for promotion to the post of Labour Officer-cum-Conciliation Officer by the DPC for both the categories, in which petitioner was found eligible whereas respondent No. 5 Sh. D.D.Atri was found ineligible. The recommendations qua the Ministerial Cadre employees were accepted by the respondents and promotions made CWP No. 16157 of 2010 11 whereas recommendation qua the petitioner was kept in abeyance.
Reply filed by the respondents did not give any reason for not accepting the recommendation made by the DPC with regard to the Labour Inspector quota and accordingly, vide order dated 19.04.2012, when the case came up for hearing, this Court had directed the production of the compete records relating to the holding of the DPC, its recommendations and ultimate promotion of respondent No. 5. The said record was produced in Court on 23.04.2012.
I have gone through the records of the case and a perusal of the same would show that the DPC, in its meeting held on 05.07.2010, had taken into consideration the order dated 15.06.2010 passed by the Civil Judge (Sr. Division) Faridabad and had complied with the same by considering the claim of the petitioner for promotion to the post of Labour Officer-cum-Conciliation Officer. On consideration, the Committee found that Sh. D.D.Atri (respondent No. 5) had not completed three years period after having qualified the examination of Post Graduate Diploma in Industrial Relations and Personnel Management as per the 1987 Rules. Therefore, the Committee did not find him fit for the post of Labour Officer-cum- Conciliation Officer. The Committee found the petitioner fit for promotion and accordingly, made recommendations. It is at this stage that the wife of respondent No. 5 made a undated representation to the Chief Parliamentary Secretary, Labour and CWP No. 16157 of 2010 12 Employment Department, Haryana, stating therein that her husband's case be considered for promotion sympathetically. It is on the basis of this representation of the wife of respondent No. 5 that the matter was re-considered and thereafter, another DPC was convened on 29.09.2010, by which time, respondent No. 5 had acquired the qualifications for promotion as he had attained the requisite experience wherein name of Sh. D.D.Atri-respondent No. 5 was recommended for promotion he being the senior amongst the officers belonging to the Labour Inspector Cadre who were considered for promotion. This recommendation made by the DPC was accepted by the competent authority leading to promotion of respondent No. 5 vide order dated 16.11.2010.
A perusal of the record and the pleadings would clearly depict that there is no reason mentioned as to why the recommendation made by the DPC, which held its meeting on 05.07.2010, was not accepted when the DPC had, in compliance with the order passed by the Civil Judge (Sr. Division) Faridabad, considered the case of respondent No. 5 along with that of the petitioner and found him ineligible and not fit for promotion as he did not fulfil the requisite qualifications as per the statutory Rules. The recommendation made by the same DPC with regard to the Ministerial Cadre was accepted despite the vacancy falling in the Ministerial Cadre becoming available only on 01.04.2010 whereas the vacancy in the Labour Inspector Cadre became available much prior i.e. on 01.10.2009.
CWP No. 16157 of 2010 13
There can be no dispute with regard to the stand of the respondents that mere availability of a vacancy would not confer a right upon an employee for consideration for promotion nor is the competent authority bound to fill up the said post but if such a decision to fill up a post is taken and in pursuance thereto, a DPC meeting is held, the recommendations, so made by the DPC, cannot be brushed aside at the whims and fancies of the appointing authorities unless there is some illegality or irregularity committed by the Committee while making such recommendations. The day when the appointing authority takes a decision to fill up the vacancy, all eligible employees, as per the statutory Rules on the said date, are conferred with the right for consideration to the post for promotion. If none is found to be suitable or fit for promotion despite they being eligible, the competent authority can, under those circumstances, convene a fresh DPC meeting or can enlarge the scope and extend the date of eligibility for consideration. However, if the DPC makes recommendations for filling up the post, the same cannot be brushed aside or swept under the carpet without being any illegality or irregularity committed in the process of consideration of eligible candidates.
Present is a case where it is not disputed that the petitioner possesses the qualifications for promotion to the post of Labour Officer-cum-Conciliation Officer when the decision to fill up the post was taken as also on the date the DPC was held i.e. CWP No. 16157 of 2010 14 05.07.2010. No person senior to him as a Labour Inspector on the said date was eligible for promotion including Sh. D.D.Atri- respondent No. 5. No illegality or irregularity has been pointed out by the respondents in their reply filed in Court nor is the same available on the official records which would reflect or indicate any fault in the recommendations made by the DPC. Rather no reasons have been mentioned therein as to why the DPC recommendations have not been accepted qua the Labour Inspector Cadre when the recommendations qua the Ministerial Cadre stood accepted, approved and given effect to. Under these circumstances, holding of the fresh DPC meeting on 29.09.2010 is wholly arbitrary and without any basis. The contention of the petitioner appears to be correct that the recommendations dated 05.07.2010 of the DPC meeting were not accepted only to help respondent No. 5. If this action of the respondents is approved by this Court, it would give unfettered, unregulated and uncontrolled arbitrary powers to the competent authority to stall all/any recommendation of the DPC which otherwise is in accordance with law. This cannot be permitted as all actions taken by the authorities, while exercising powers under the Statute, must conform to the basic requirement of reasonableness, just and fairness, which is a trait of equality as enshrined under Articles 14 and 16 of the Constitution of India and ensure adherence thereto through its acts, decisions and conduct.
In view of the above, promotion of respondent No. 5 to the post of Labour Officer-cum-Conciliation Officer vide order dated CWP No. 16157 of 2010 15 16.11.2010 cannot sustain in law and, therefore, deserves to be and is set aside.
It has been brought to the notice of the Court by the counsel for the respondent-State that a vacant post of Labour Officer-cum-Conciliation Officer is available, against which respondent No. 5 can be adjusted. That is for the respondents to consider and decide. However, if the said exercise is resorted to and performed by the respondents, the interest of justice would be served by directing the respondents to promote the petitioner to the post of Labour Officer-cum-Conciliation Officer on the post and with effect from the date on which respondent No. 5 was promoted i.e. 16.11.2010. Petitioner shall rank senior to respondent No. 5 and shall also be entitled to all consequential benefits which may accrue to him as a result of his promotion from the said date.
Needful be done within a period of one month from the date of receipt of certified copy of this order.
Present writ petition is allowed in above terms.
Records, as retained earlier vide order dated 23.04.2012, be handed over to Mr. Harish Rathee, learned Senior Deputy Advocate General, Haryana, forthwith.
(AUGUSTINE GEORGE MASIH)
May 09, 2012 JUDGE
pj
CWP No. 16157 of 2010 16
CWP No. 16157 of 2010 17