Punjab-Haryana High Court
Joga Singh And Others vs Punjab State And Others on 27 May, 2009
CWP No. 14072 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 14072 of 2006
Date of decision 27 .4.2009
Joga Singh and others ... Petitioners
Versus
Punjab State and others ... Respondents.
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
Present: Mr. R.S. Bajaj ,Advocate for the petitioner
Ms. Sudeepti Sharma, DAG Punjab.
1. Whether Reporters of local papers may be allowed to see the judgement ?
2. To be referred to the Reporter or not ?
3. Whether the judgement should be reported in the Digest ?
M.M.KUMAR, J.
The instant petition filed under Article 226 of the Constitution prays for declaring Clause 3 of Appendix B of Punjab Industries Non Technical (Group A) Service Rules, 2005 (for brevity '2005 Rules') (P.2) as ultra vires on the ground that Clause 3 provides for filling up the post of Deputy Directors/General Managers by promotion without providing for proportionate quota to the post of Project Managers. A further prayer for issuance of direction to the respondents to provide for proportionate quota to the cadre of Project Managers after de-clubbing the post of Assistant Directors etc. from the cadre of Functional Managers has also been made. Still further in the alternative directions have been sought to fix the inter-se seniority of Functional Managers and Project Managers for the purpose of further promotion to the posts of Deputy Director/ General Managers.
Brief facts necessary for the disposal of the controversy raised may first be noticed. Joga Singh, petitioner no.1 and Amarjit Singh, CWP No. 14072 of 2006 2 petitioner No.2 joined the service as Project Managers in the respondent department on 29.5.1991. Gursharan Singh, petitioner no.3 also joined as such on 5.6.1991. The petitioners have claimed that their service record is satisfactory and there is nothing adverse therein. There is another cadre known as Functional Managers. The total cadre strength of Project Managers is 36 and that of Functional Managers is 44. It is undisputed that pay scale of both the posts are the same i.e. Rs.2000-3500. The post of Assistant Director/ Assistant Controller Store, Assistant Director (Data), Research Officer, Store Inspection officer and Functional Managers are governed by the statutory rules known as Punjab Industries Non Technical (Group B) Service Rules, 2007 whereas the post of Project Managers is governed by Punjab Industries Service (Class II) Rules, 1992.
For promotion to the post of Deputy Director (Head Office) and General Manager a provision has been made in the Punjab Industries Non Technical (Group A) Service Rules, 2005. According to Appendix B, the post of Deputy Directors of Industries or General Manager or District Industries Centre or Deputy Director (Data) are to be filled up to the erxtent of 65 %from the cadre of Assistant Director, Assistant Director (Data), Assistant Controller of Stores, Store Inspection Officers, Research Officer and Functional Managers who are members of the Punjab Industries Service ( Class II) and who have an experience of working as such on either of these posts for a minimum period of eight years. The petitioners' cadre of Project Managers belonging to Punjab Industries Technical (Group B ) Service who have experience of minimum of eight years are allocated 35 % quota for promotion to the aforesaid post.
The grievance made by the petitioners is that there was no CWP No. 14072 of 2006 3 justification for clubbing the post of Assistant Director/ Assistant Director (Data), Assistant Controller of Stores, Store Inspection Officers and Research Officer with Functional Managers. By clubbing the aforesaid posts with the Functional Managers the quota of Functional Managers alongwith others has been raised to 65% for promotion to the post of Deputy Director (HO) and General Manager whereas the quota of the petitioners has been kept at 35%. According to the petitioners the excessive quota given to Functional Managers is wholly illegal and is aimed at granting benefit to the Functional Managers alone. The basis of the aforesaid grievance is that from the year 1992 onwards till date not even a single candidate belonging to the posts of Project Managers has been appointed to the post of Assistant Director/ Assistant Controller of Stores, Store Inspection Officers or Research Officer. In other words the department is posting Functional Managers on the aforesaid posts and infact is giving direct benefit of swollen quota of 65% Functional Managers . It has also been asserted that even the Project Managers like the petitioners are asked to discharge the duties of the post of Assistant Director/ Assistant controller of Stores, Store Inspection Officers, Research Officer and they are never absorbed in that cadre as a result their quota continue to freeze at 35% whereas the quota of Functional Managers has been raised to 65% by appointing and absorbing them on those posts . In order to substantiate their claim, the petitioners have pointed out that large number of persons who are appointed as Functional Managers much after the appointment of the petitioners have been promoted as Deputy Director (HO) or General Manager. The names of the following persons alongwith their date of appointment/ promotion as Functional Manager and date of promotion as General Manager has been CWP No. 14072 of 2006 4 given in the following table:
S.N Name of officer Date of Date of promotion as
o. appointment/pro General Manager
motion as
Functional
Manager
1 Sarabjit Singh 15.8.1991 03/05/02
2 Jaspal Singh 21.8.1991 27.7.2001
3 Ram Singh 20.8.1991 03/05/02
4 Bhinder Singh 30.7.1991 05/08/04
5 Dalbir Singh 21.1.1992 19.8.2004
6 Mahesh Khanna 14.1.1992 Name already cleared in DPC
7 Roop Lal Bagga 13.8.1991 -do-
8 Ram Krishan 17.3.1994 Name proposed in DPC
9 Amarjit Singh Tandi 17.3.1994 -do-
10 Daljit Singh 17.3.1994 -do-
11 Surinder Singh 19.3.1994 -do-
12 Pritam Singh 07/02/96 -do-
It is in this background that constitutional validity of Clause 3 of appendix B of 2005 rules has been challenged.
In the written statement filed on behalf of respondent nos. 1 to 3 the stand taken is that after legal notice, the department had asked information from the petitioners which has not been received. The respondent has also justified the equation of the post of Store Inspection Officer with that of Assistant Director/ Assistant Controller of Stores, Store Inspection Officers, Research Officer. It has also been claimed that while framing 2005 Rules the same pattern has been adopted for promotion to the post of Deputy Director (Group A) and feeder cadre for the said post has been carved out by including the post of Store Inspection Officer, Assistant Director (Data) Assistant controller of Stores, Store Inspection Officers, Research Officer and Functional Managers.. It is stated that Government of India introduced the District Industries Centres Scheme in all the States and under the said scheme Government of Punjab in CWP No. 14072 of 2006 5 consultation with the Finance Department modified the organisational structure of the District Industries Centres. In addition to the other staff for each District Industries Center posts of Project Managers were created. (R.2). In the said order it was clearly laid down that against the newly created posts of General Managers/ Functional Managers and Project Managers, the officers of the same rank duly qualified and eligible for the grade in accordance with the seniority to be adjusted/ appointed under the staffing pattern till the issue of notification regarding service rules. Accordingly Punjab Industries (State Services Class 1) Draft Rules, 1988 were framed according to which the posts of Deputy Director and General Manager was required to be filled up by promotion from amongst Assistant Directors/ Assistant Controller of Stores, Store Inspection Officer, Functional Managers and Project Managers having combined experience of 8 years as such and 65 % of posts were to be filled up from amongst the Assistant Directors/ Assistant Controller of Stores, Store Inspection Officer and Functional Managers. The rest of 35% posts were to be filled up by Project Managers and Store Inspection Officers. Thereafter department framed separate Rules known as Punjab Industries Technical (Group B) Service Rules, 2004 and the post of Project Manager has been included in the said rules and the posts of Assistant Directors/ Assistant Controller of Stores, Store Inspection Officer, Functional Managers etc. are included in the Punjab Industries Non Technical (Group B )Rules, 2006 which have been approved whereas the post of Project Manager has been included in the Punjab Industries Technical (Group B) Rules, 2004. Therefore these posts are manned by different set of rules. On merits, in reply to para 4 it is submitted that as per notification 20.3.1990,Functional Managers are not CWP No. 14072 of 2006 6 eligible to be posted as Project Manager although Project Manager will be eligible to be posted as Functional Manager and for the purposes of promotion, the Functional and Project Managers are considered equally for promotion of Deputy Director/ General Manager in the ratio of 65 :35. Earlier the scale of Project Manager was higher than that of the Functional Manager but by the notification dated 20.3.1990 the scale of Project Manager was down graded to bring at par with the post of Functional Manager for creating promotion avenue to the post of Deputy Director General Manager. In reply to para 7 it is submitted that the incumbent to the post of Functional Managers, Assistant Directors/ Assistant Controller of Stores and Store Inspection Officer are interchangeable and are treated equally for the purposes of further promotion as Deputy Directors/ General Managers and ratio of 65 : 35 has been rightly fixed keeping in view the number of posts of Functional Managers Assistant Directors/ Assistant Controller of Stores, Store Inspection Officer vis-a-vis Project Managers which are 60 and 36 respectively. The plea that no incumbent as Deputy Director/ General Manager since 1992 has been promoted from amongst the Project Managers has been denied and therefore no injustice was caused to the Project Manager rather the promotions were made strictly in accordance with the Rules.
Mr. R.S. Bajaj, learned counsel for the petitioner has vehemently argued that the quota for the Functional Managers has been inflated whereas there are only 44 posts of Functional Managers as against 36 posts of Project Managers. According to the learned counsel the cadre comprised of 44 posts have been given 65 % quota and the petitioners who have 36 posts have been given only 35% quota. It has been emphasized that CWP No. 14072 of 2006 7 22 posts of Assistant Director (Data), Assistant controller of Stores, Store Inspection Officers, Research Officer have unnecessarily been tagged with the post of Functional Managers which is arbitrary. Learned counsel has also pointed out that since 1992 no person has been appointed to the post of Assistant Director, Assistant Director (Data), Assistant controller of Stores, Store Inspection Officers, Research Officer providing quota for them is absolutely arbitrary and infact that quota is being consumed by the Functional Managers.
Having heard the learned counsel for the parties and perusing the record it would first be necessary to read clause 3 of Appendix B of Rule 5 of 2005 Rules which reads thus:
" 5. Method of appointment, experience and qualifications.
(1)Appointment to the service shall be made by the Government in the manner as specified in Appendix B:
Provided that if no suitable person is available for appointment by promotion and by direct appointment, then appointment to the service shall be made by transfer of a person holding a similar or an identical post under a State Government or Government of India.
(2)No person shall be appointed to a post in the Service unless he possesses the qualifications and experience as specified against that post in Appendix "B".
(3)Appointment to the Service by promotion shall be made on seniority-cum- merit basis, but no person shall have any right to claim promotion on the basis of seniority alone."
Appendix "B"
CWP No. 14072 of 2006 8
S.No Designation of Percentage for Method of
the post appointment by appointment-
qualifications and
Promotion Direct
experience for
appointment
appointment by
Promotion Direct
Appointment
1,2 xx xx xx
Dy. Directors of Hundred - (i) 65% from amongst
Industries or Gen. percent the Assistant Directors,
Manager, District Asstt. Director (Data),
Industries Center Asstt. Controller of
or Dy. Director Stores, Store Inspection
(Data) Officers, Research
Officer and Functional
Managers, who are
members of the Punjab
Industries Service (class
II) and who have an
experience of working
as such on either of
these posts for a
minimum period of
eight years and
ii) 35% from amongst
the Project Managers of
Punjab Industries Tech.
(Group B) Service and
who have an exp. Of
working as such for a
minimum period of
3 eight years.
A perusal of the aforesaid rules show that for promotion to the post of Deputy Directors of Industries or General Manager, District Industries Centre or Deputy Director (Data) 65 % quota has been allocated to Assistant Directors, Assistant Director (Data), Assistant Controller of Stores, Store Inspection Officers, Research Officer and Functional Managers and 35 % of the posts have been allocated to Project Managers. In both the cases experience of eight years of working on their respective posts is required. It has also come on record that there are total 44 posts in the cadre of Functional Managers whereas the cadre of Assistant Directors, Assistant Director (Data), Assistant Controller of Stores, Store Inspection Officers, Research Officer and Functional Managers has comprised of 22 CWP No. 14072 of 2006 9 posts. The cadre of Project Managers comprised of 36 posts. The Rules have thus fixed proportionate quota for promotion to the post of Deputy Director of Industries or General Manager, District Industries Center or Deputy Director (Data). Against total number of 66 (60 ?) posts of Assistant Directors, Assistant Director (Data), Assistant Controller of Stores, Store Inspection Officers, Research Officer and Functional Managers 65 % quota has been fixed whereas against 36 posts of Project Managers, the quota of 35% has been fixed. Accordingly I find nothing unfair, arbitrary, illegal in the aforesaid allocation of quota. Infact the allocation of quota has been absolutely rationale and would answer the prescription of Articles 14 and 16(1) of the Constitution.
The argument of the learned counsel is that Functional Managers are sometimes asked to discharge the duties of Assistant Director or of any other similar post and no person has been appointed as Assistant Director, Assistant Director (Data), Assistant Controller of Stores, Store Inspection Officers and Research Officer would itself render the rule unconstitutional. For answering the requirement of Articles 14 and 16(1) of the Constitution it has to be shown that those who are given the benefits are arbitrarily picked up by keeping the members of the other cadres out of the beneficiary class. There is no such feature in the rules which may be termed as violative of Articles 14 and 16 of the Constitution. I am not persuaded to take the view that posts in the cadre of Assistant Directors, Assistant Director (Data), Assistant Controller of Stores, Store Inspection Officers, Research Officers/ Project Managers having not been filled up by independent incumbents and therefore the rule prescribing quota is unconstitutional. It does not mean that for all times to come the cadre is CWP No. 14072 of 2006 10 going to be blank although this fact has been denied in the written statement. For that reason alone, it cannot be concluded that the rule suffers from the vice of arbitrariness or ultravires Articles 14 and 16(1) of the constitution. In any case, the petitioners have been allocated adequate quota to give them representation in the promotion cadre of Deputy Directors of Industries or General Manager, District Industries Centre or Deputy Director (Data). They cannot make a grievance that more quota be allocated to them or they would also be entitled to work and absorb on the post of Assistant Director/ Assistant Director (Data), Assistant Controller of Stores, Store Inspection Officer, Research Officer. Therefore, this Court does not find any merit in the contention raised.
For the reasons afore mentioned, this petition fails and the same is accordingly dismissed.
(M.M.Kumar)) 27.4.2009 Judge okg