Punjab-Haryana High Court
H.S. Khosa vs The State Of Punjab And Others on 30 November, 2012
Bench: A.K. Sikri, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.1292 of 2001 (O&M)
DATE OF DECISION: November 30, 2012
H.S. Khosa
.....Petitioner
versus
The State of Punjab and others
.....Respondents
CORAM:- HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN, JUDGE
Present: Mr.Rajiv Atma Ram, Senior Advocate with
Mr.Arjan Partap Atma Ram, Advocate for the petitioner
Mr.H.S. Sidhu, Additional Advocate General, Punjab
Mr.H.S. Sethi, Advocate for respondent No.3
..
A.K. SIKRI, C.J.:
In this second round of litigation, we are concerned with the validity and proprietary of the orders dated 4.9.2000 passed by respondent No.1 and it is to be judged as to whether these orders go contrary to the letter and spirit of the law laid down by the Supreme Court in Ajit Singh Janjua & others Vs. State of Punjab, 1996 (2) SCC 215 and Ajit Singh-II vs. State of Punjab, 1999(7) J.T. 153.
Before we take note of the principles of law laid in the aforesaid judgments by the Supreme Court, it will be imperative to note down factual background in which the controversy has arisen.
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The petitioner, herein, is an employee of the Municipal Corporation in the State of Punjab. He was appointed as Assistant Corporation Engineer with effect from 26.11.1984. The respondent No.3, who belongs to Scheduled Caste (SC) Category, also became Assistant Corporation Engineer to which post he was appointed on 12.12.1984. It is, thus, not in dispute that initial appointment of the petitioner as Assistant Corporation Engineer was before that of the respondent No.3 and he was senior to the respondent No.3. The respondent No.3 being an SC, got promotion to the higher post of Corporation Engineer before the petitioner because of availability of roster point meant for SC category candidates. He was promoted to this post on 14.12.1993, whereas the petitioner was promoted as Corporation Engineer, as per his own turn in the General Category, on 10.10.1999. However, since the petitioner was senior to the respondent No.3 as per initial appointment, on promotion of the petitioner to the same post of Corporation Engineer to which respondent No.3 was promoted earlier, on the application of "catch-up rule", the petitioner was again treated as senior to the respondent No.3 as Corporation Engineer. For this reason, when the seniority-list of Corporation Engineers was prepared and circulated, the petitioner's name appeared at Sr. No.10 in the said seniority list, whereas, the respondent No.3 was shown at Sr. No.12, treating him as junior to the petitioner.
Next promotion is to the post of Superintending Engineer. As per extant rules, 7 years' experience as Corporation Engineer is required for promotion to the post of Superintending Engineer. The respondent No.3 was promoted as Superintending Engineer with CWP-1292-2001 - 3 -
effect from 15.11.2000. According to the petitioner, since he was senior to the respondent No.3, he could not have been ignored while promoting the respondent No.3 as Superintending Engineer. He filed writ petition, which was registered as CWP-8100-2000, inter alia, seeking direction to consider his claim for promotion to the post of Superintending Engineer. In this writ petition orders dated July 04, 2000 were passed by the Division Bench of this court, directing the respondents to consider representations of the petitioner which he had given in this behalf. Pursuant to these directions dated July 04, 2000, the official respondents passed orders dated September 04, 2000, rejecting the representation of the petitioner. It is this order which is impugned by filing the instant writ petition.
A perusal of the impugned orders dated 4.9.2000 would reveal that the official respondents have not denied that the petitioner was senior to the respondent No.3 as Corporation Engineer, even when the respondent No.3 was promoted to the said post much earlier against roster point meant for SC candidates. This is the effect of the judgment of the Supreme Court in Ajit Singh Janjua's case (supra) and, therefore, applying the said "catch-up rule", the impugned order admits the legal position that on promotion of the petitioner as Corporation Engineer with effect from 10.10.1999, the petitioner would regain his seniority over respondent No.3 as XEN/Corporation Engineer.
Notwithstanding the same, claim of the petitioner to the post of Superintending Engineer is rejected on two grounds, viz., (i) under the departmental rules an XEN/Corporation Engineer has to acquire an experience of 7 years before he could be considered for CWP-1292-2001 - 4 -
promotion as Corporation Engineer. Since the petitioner was promoted as XEN in October, 1999, he had hardly one year of service as on 15.11.2000 when the respondent No.3 was promoted as Superintending Engineer. Thus, even when senior, the petitioner was not eligible to be considered for promotion to the post of Superintending Engineer; (ii) there were six posts of Superintending Engineer in the department at the relevant time. However, not even one of them was being manned by an officer from amongst the Scheduled Castes. Therefore, the post in question had to be filled up by person belonging to Scheduled Caste category and thus, respondent No.3 was rightly promoted to the said post vide order dated 15.11.2000.
The petitioner challenges the veracity of the aforesaid twin justification given in the aforesaid orders dated 4.9.2000. Insofar as "experience of 7 years" required under the rules is concerned, the petitioner relies upon the judgment in the case of Ajit Singh Janjua itself. Submission of Mr.Rajiv Atma Ram, learned senior counsel for the petitioner, is that once the petitioner is treated as senior to the respondent No.3 on the basis of law laid down in the aforesaid judgment, necessary consequence thereof has to be that for the purpose of "experience" petitioner has to be treated as appointed to the said post of Corporation Engineer on the date when the respondent No.3 was appointed and also even during the intervening period when the petitioner had worked on a lower post. That particular period has to be treated as experience as Corporation Engineer/XEN for promotion to the post of Superintending Engineer. To bolster this submission, observations of the Constitution Bench made in para-68 and 69 in the CWP-1292-2001 - 5 -
case of Ajit Singh-II (supra) are pressed into service which read as under:-
"68. Learned senior counsel Sri K. Parasaran and Sri Raju Ramachandran then adverted to a situation which according to them might create serious problems if a senior general candidate is to be treated as senior at the promotional level if he reaches that level before the roster promotee goes further up. The example given refer to cases where after the roster point promotee (reserved candidate) reaches the promotional level, there is direct recruitment or recruitment by transfer at that promotional level. Counsel submit that, if a senior general candidate is thereafter promoted and placed above the reserved candidate, can he become senior to the direct recruit and transferee? We do not find any anomaly. The direct recruit or transferee who has no grievance against the reserved candidate who was already there can have no grievance against a senior general candidate who has a superior claim, in law, against the reserved candidate.
Even if seniority of roster point promotee does not count, experience of both groups can be considered as part of merit for further promotion :
69. Before we leave point 3, we may refer to another submission made by Sri K. Parasaran, learned senior counsel for the reserved candidates. Learned counsel submitted that even if the seniority of the reserved CWP-1292-2001 - 6 -
candidates had gone up to Level 3 earlier by the roster at two Levels 1 and 2 is not counted, still the "experience" gained by them at Level 3 well before the senior general candidate 'caught up' to that Level, cannot be disregarded for purposes of promotion to Level 4. It is true that the roster point promotee who has reached the promotional level 3 even if he is not entitled to seniority would have gained considerable "experience" at that level. That experience is, no doubt, of considerable relevance in considering his case for further promotion to level 4. But, at the same time, it is to be noted that the general candidates had longer experience at Level 1 and Level 2 and have come up to Level 3 by way of competition among the general candidates at two stages. The said longer "experience" gained by them at the lower levels 1 and 2 and the manner in which they have reached the Level 3 to which the reserved candidate had reached earlier, are also relevant factors. The qualities of the experience of these groups also needs to be kept in view. The above principle would be an equitable balancing of the "experience" of the candidates at various levels. It will be appropriate for the Government of India or the State Government, as the case may be, to formulate guidelines by way of administrative orders or by way of rules in this behalf. Point 3 is disposed of accordingly."
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As is apparent, the Constitution Bench called upon the Government of India or the State Government, as the case may be, to formulate guidelines by way of administrative orders or by way of rules, in this behalf. At the time of arguments, it was stated at the bar by counsel for all the parties that there is neither any amendment in the rules nor any administrative orders are issued to this effect so far. Mr.Rajiv Atma Ram submitted that in such a situation, the Government would be bound by the Circular Letter No.3/26/96- 3P.P.1/10134 dated 13 June, 1996, issued by the Personnel and Administrative Reforms Department which is adopted by the State of Punjab as well. This circular deals with those cases where an employee has not been given promotion due to him to a particular post with effect from the date his junior is given the benefit and, for certain reasons, promotion is given from a subsequent date. It is clarified that in such a situation, when the promotion is given from a back date, the senior would be treated as having 'working experience' from the date he was given promotion. Following portion from the said circular deals with this aspect:-
".....Some cases have come to light where the senior official is not promoted due to some reason and his junior is promoted. Thereafter senior is promoted from the date his junior was promoted. In such a situation, the whole experience of senior official is not working because he is given promotion from the date his junior was promoted which is the earlier date. If the working experience of such senior official is not considered then in many cases CWP-1292-2001 - 8 -
he cannot be given further promotion as the fixed working experience is not complete. But junior official is eligible for promotion due to his complete working experience. If the junior is given promotion then the promotion given to the senior official from the back date will become meaningless and it will be injustice towards him and it is not legally appropriate. The Government has considered this matter and it has been decided that where the senior official is promoted from the date his junior official was promoted viz. the promotion given from back date, in that case the experience of the senior official will be treated as working experience while giving further promotion."
It was, thus, argued that having regard to the dicta laid down in Ajit Singh Janjua's case (supra) coupled with the aforesaid circular, the existence of the petitioner as Corporation Engineer should have been treated with effect from 14.12.1993 when the respondent No.3 was promoted to this post and, therefore, the petitioner could not have been treated as ineligible for the promotion to the post of Superintending Engineer. The learned senior counsel also emphasised that otherwise, treating the petitioner as senior becomes meaningless and moreover, the petitioner could be treated as senior to respondent No.3 only by treating the petitioner as promoted to the post of Corporation Engineer with effect from 14.12.1993. Otherwise, contended the learned senior counsel, there was no way to treat the petitioner as senior to the respondent No.3 even when it was conceded that petitioner was, in fact, senior to the respondent No.3.
CWP-1292-2001 - 9 -
Insofar as second reason given in the impugned order is concerned, the answer of Mr.Rajiv Atma Ram was that as against six posts, only four persons were occupying the position of Superintending Engineer and even when one post was to be treated as falling in SC Category and respondent No.3 was to be accommodated, there was one more post of Superintending Engineer against which petitioner could have been considered.
Refuting the aforesaid submissions, Mr. Sidhu, learned Additional Advocate General, appearing for State of Punjab, argued that no doubt the petitioner became senior to the respondent No.3 with the application of 'catch-up rule' delineated in Ajit Singh Janjua's case (supra) by the Supreme Court, but he still had to fulfil the eligibility conditions for promotion to the post of Superintending Engineer contained in the recruitment rules having statutory force. He submitted that it was totally misconceived on the part of the petitioner to claim as if the petitioner was promoted to the post of Corporation Engineer with effect from 14.12.1993 (i.e. from the date when respondent No.3 was promoted) when the petitioner was actually promoted to this post on 10.10.1999. Further submission was that in paragraphs-68 and 69 of the judgment in Ajit Singh Janjua's case (supra), the Constitution Bench only remarked that there should be a provision made in the rules by issuing administrative orders. However, when there was no such amendment in the rules or administrative order to this effect, the statutory rules, which exist as on date, would prevail. It was, thus, argued that the Ajit Singh Janjua's case (supra) would not come to the rescue of the petitioner.
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Insofar as eligibility for promotion to the post of Superintending Engineer is concerned, Mr.Sidhu also submitted that the Circular dated 13.6.1996 was, ex facie, not applicable as it related to those cases where senior person was wrongly ignored for promotion to the higher post and later on given the promotion from the date his junior was promoted. Those would be the cases where the promotion order itself is retrospective i.e. from the date junior is promoted, though issued later. According to him, that was not the situation in the present case, where the petitioner got the promotion as Corporation Engineer only with effect from 10.10.1999 and not from an earlier date. He referred to the judgment of the Supreme Court in R. Prabha Devi and others vs. Government of India, through Secretary, Ministry of Personnel and Training, Administrative Reforms and others, (1988) 2 Supreme Court Cases 233, wherein the Supreme Court categorically held that even when an employee is senior but does not fulfil the eligibility conditions prescribed for promotion, he would not be entitled to be considered for promotion and junior employee, who fulfils such conditions, can be considered and promoted.
Insofar as second argument, viz., only four persons were working as Superintending Engineer as against six sanctioned posts, it was argued that even when that was the position, the petitioner would not automatically be considered for promotion, inasmuch as, there were many persons senior to the petitioner in General Category. Mr. Sidhu referred to the following averments made in the counter- affidavit, in this behalf:-
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"13. That the contents of this para are admitted to the extent that 4 persons namely Sarv/Shri M.N. Sharma, Ashok Kumar, A.K. Malik and D.P. Jain were working as Superintending Engineers prior to the promotion of respondent No.3. The contents of the rest of the para are incorrect, hence denied. According to the final seniority list of Corporation Engineers there are 10 other officers senior to the petitioner. Thought the respondent No.3 is at Sr.No.12 but he has been promoted as Superintending Engineer against the reserved vacancy of Scheduled Caste."
Mr.Sethi, learned counsel appearing for respondent No.3, argued, in addition, that once it is accepted by the petitioner that no person belonging to SC Category was working as Superintending Engineer and one post of Superintending Engineer was available for this category, the respondent No.3 was rightly promoted to the said post and, thus, the petitioner could not question his appointment at all. Further, he relied on a Division Bench judgment dated October 03, 2000, rendered by this Court in Harmesh Kumar vs. State of Punjab and others, CWP-18483 of 1999, to buttress his submission that as the petitioner did not have requisite 7 years experience, even if senior, he was rightly not considered for the post of Superintending Engineer.
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We have given our thoughtful consideration to the aforesaid submissions of the learned counsel for the parties and have also gone through the record.
We would first like to deal with the promotion of the respondent No.3 to the post of Superintending Engineer. It is the common case of the parties that when the respondent No.3 was promoted as Superintending Engineer with effect from 15.11.2000, there were six posts of Superintending Engineer in the department and not even one of them was being manned by an officer from amongst the SC Category. Thus, one post had to come to the candidate belonging to the SC Category and the respondent No.3 being the senior-most in the category, who had also 7 years experience as XEN, was considered and promoted as Superintending Engineer. The learned senior counsel for the petitioner did not dispute this position that one post of Superintending Engineer was falling within the quota of SC Category, inasmuch as, no officer of this category was promoted earlier in the cadre of six Superintending Engineers. The promotion of the respondent No.3 to this post, therefore, cannot be faulted with.
In this background, only question is as to whether petitioner, being senior to the respondent No.3, should have also been considered for promotion to the post of Superintending Engineer. Answer to this depends on the question as to whether he was eligible to be considered, viz., whether he had the requisite 7 years' experience as XEN.
Factual matrix on this aspect is not in dispute. The turn of the petitioner for promotion to the post of Corporation Engineer CWP-1292-2001 - 13 -
matured only in General Category only in October, 1999, when he was promoted with effect from 10.10.1999. The respondent No.3, as SC candidate, even though junior to him, got promotion against the SC roster point, way back in 1993 i.e. with effect from 14.12.1993, whereas, from 1993 to 1999, the petitioner had worked as Assistant Corporation Engineer. On promotion to the post of Corporation Engineer with effect from 10.10.1999, the petitioner regained his seniority in the cadre of Corporation Engineer as well, having regard to the law laid down by the Supreme Court in the case of Ajit Singh- II (supra). This principle stated in the said case reads as under:-
"The proper balancing of rights :
46. In the light of the above discussion, the proper balancing of the rights, in our view, will be as follows:
The general candidates who are senior at Assistants level (Level 2) and who have reached Superintendent Grade-II (Level 3) before the reserved candidate moved to Level 4 (Supdt. Grade-I), will have to be treated as senior at the level 3 also (Supdt. Grade II) and it is on that basis that promotion to the post of Level 4 must be made, upon first considering the cases of the senior general candidates at Level 3. If the cases of the senior general candidates who have reached Level 3 though at a latter point of time, are not first considered for promotion to Level 4, and if the roster point promotee at Level 3 is treated senior and promoted to level 4, there will be violation of Articles 14 and 16(1) of the Constitution of India. Such a promotion and the seniority at Level 4 has CWP-1292-2001 - 14 -
to be reviewed after the decision of Ajit Singh. But if reserved category candidate is otherwise eligible and posts are available for promotion to Level 4, they cannot be denied right to be considered for promotion to Level 4, merely because erstwhile seniors at the entry levels have not reached Level 3. What we have stated above accords, in fact, with what was actually stated in Ajit Singh, (1996) 2 SCC 715). In that case, N.P. Singh, J. observed (p.731) :
"It also cannot be overlooked that for the first promotion from the basic grade, there was no occasion to examine their merit and suitability for promotion."
47. That, in our view, is the correct approach for balancing the fundamental rights under Article 14 and Article 16(1) on the one hand and the provisions relating to reservation in Article 16(4) and Article 16(4A).
xx xx xx xx Our Conclusions on Points 1 and 2 :
65. We, therefore, hold that the roster point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, - vis-a-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate - he will CWP-1292-2001 - 15 -
have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal and Ajit Singh have been correctly decided and that Jagdishlal is not correctly decided. Points 1 and 2 are decided accordingly.
Point 3 :
66. During the discussion under this "catch-up" point - for purposes of convenience, - we take the example of the cadres in Ajit Singh i.e. there is roster point promotion for reserved candidates for promotion from Level 1 to Level 2 and from Level 2 to Level 3. There is no roster for promotion from Level 3 to Level 4.
Two 'catch up' rules contended for by general candidates:
Now, as stated earlier, the counsel for the general candidates argued for acceptance of two catch-up rules.
(i) Extreme 'catch-up' rule :
So far as the extreme contention of the general candidates that at Level 3, the roster candidate must wait at Level 3 - before being promoted to Level 4 - till the last senior general candidate at Level 1 reached Level 3, - we reject the same in as much as that will not amount to a reasonable balancing of the rights of the candidates in the two groups. Nor do we accept that posts must be CWP-1292-2001 - 16 -
kept vacant and no promotions of the roster candidates be made.
(ii) Other Catch-up rule :
As accepted in Virpal (see 1995 (6) SCC 684 at 702 and Ajit Singh (See 1996(2) SCC at p. 729), we hold that in case any senior general candidate at Level 2 (Assistant) reaches Level 3 (Superintendent Grade II) before the reserved candidate (roster point promotee) at Level 3 goes further up to Level 4 in that case the seniority at Level 3 has to be modified by placing such a general candidate above the roster promotee, reflecting their inter se seniority at Level 2. Further promotion to Level 4 must be on the basis of such a modified seniority at Level 3, namely, that the senior general candidate of Level 2 will remain senior also at Level 3 to the reserved candidate, even if the latter had reached Level 3 earlier and remained there when the senior general candidate reached that Level 3. In cases where the reserved candidate has gone up to Level 4 ignoring the seniority of the senior general candidate at Level 3, seniority at Level 4 has to be refixed (when the senior general candidate is promoted to Level 4) on the basis of when the time of reserved candidate for promotion to Level 4 would have come, if the case of the senior general candidates was considered at Level 3 in due time. To the above extent, we accept the first part of the contention of the learned counsel for the general candidates. Such a procedure in CWP-1292-2001 - 17 -
our view will properly balance the rights of the reserved candidates and the fundamental rights guaranteed under Article 16(1) to the general candidates."
It is on the application of the aforesaid principle laid down by the State of Punjab in the case of Ajit Singh-II (supra) that the petitioner was accorded seniority above the respondent No.3. So far so good. However, the question is as to whether by giving the petitioner seniority, the promotion to the post of XEN is to be treated with effect from 14.12.1993 when the respondent No.3 was promoted to the said post as against actual date of promotion of the petitioner i.e. 10.10.1999 for the purpose of counting 7 years' experience for promotion to the next post i.e. Superintending Engineer. The Supreme Court had noted that such a situation may arise and made following observations in this behalf in paragraphs-68 and 69 in the case of Ajit Singh-II (supra), which the petitioner wants to encash upon:-
"68. Learned senior counsel Sri K. Parasaran and Sri Raju Ramachandran then adverted to a situation which according to them might create serious problems if a senior general candidate is to be treated as senior at the promotional level if he reaches that level before the roster promotee goes further up. The example given refer to cases where after the roster point promotee (reserved candidate) reaches the promotional level, there is direct recruitment or recruitment by transfer at that promotional level. Counsel submit that, if a senior CWP-1292-2001 - 18 -
general candidate is thereafter promoted and placed above the reserved candidate, can he become senior to the direct recruit and transferee? We do not find any anomaly. The direct recruit or transferee who has no grievance against the reserved candidate who was already there can have no grievance against a senior general candidate who has a superior claim, in law, against the reserved candidate.
Even if seniority of roster point promotee does not count, experience of both groups can be considered as part of merit for further promotion :
69. Before we leave point 3, we may refer to another submission made by Sri K. Parasaran, learned senior counsel for the reserved candidates. Learned counsel submitted that even if the seniority of the reserved candidates had gone up to Level 3 earlier by the roster at two Levels 1 and 2 is not counted, still the "experience"
gained by them at Level 3 well before the senior general candidate 'caught up' to that Level, cannot be disregarded for purposes of promotion to Level 4. It is true that the roster point promotee who has reached the promotional level 3 even if he is not entitled to seniority would have gained considerable "experience" at that level. That experience is, no doubt, of considerable relevance in considering his case for further promotion to level 4. But, at the same time, it is to be noted that the CWP-1292-2001 - 19 -
general candidates had longer experience at Level 1 and Level 2 and have come up to Level 3 by way of competition among the general candidates at two stages. The said longer "experience" gained by them at the lower levels 1 and 2 and the manner in which they have reached the Level 3 to which the reserved candidate had reached earlier, are also relevant factors. The qualities of the experience of these groups also needs to be kept in view. The above principle would be an equitable balancing of the "experience" of the candidates at various levels. It will be appropriate for the Government of India or the State Government, as the case may be, to formulate guidelines by way of administrative orders or by way of rules in this behalf. Point 3 is disposed of accordingly."
We are afraid, from the observations made in para 69 alone, the petitioner cannot be allowed to count the experience in the lower post i.e. Assistant Corporation Engineer, as the experience on the post of Corporation Engineer. In the first place, the Supreme Court only called upon the Government of India/State Governments to formulate guidelines by way of administrative orders or by way of rules in this behalf. As noted above, there are no such guidelines either by way of administrative orders or by way of rules issued so far. Such a consideration has to be by the competent authority, namely, the Government of India or the State Government, as the case may be, that too after considering as to whether 'longer experience' gained by CWP-1292-2001 - 20 -
the general category candidate as Assistant Corporation Engineer could be treated as experience as Corporation Engineer/XEN once 'catch-up rule' stood attracted. Whether such benefit is to be given or not, was to be decided after taking into consideration the various relevant factors. In the absence of any such exercise and more pertinently in the absence of challenge to the statutory rules that exist as of today, which mandate 7 years experience as XEN/Corporation Engineer, we are constrained to hold that the petitioner was not eligible to be considered for the post of Superintending Engineer. The argument of the learned senior counsel for the petitioner that petitioner stood promoted to the post of Corporation Engineer with effect from 14.12.1993 is grossly erroneous and cannot be accepted. For all intents and purposes, the petitioner, in his turn as General Category candidate got promotion as Corporation Engineer only on 10.10.1999. This promotion was never ante-dated. It is not the case of the petitioner that he was wrongly ignored earlier when respondent No.3 was promoted as Corporation Engineer with effect from 14.12.1993. Therefore he cannot be treated as promoted to the post of Corporation Engineer from 14.12.1993. On the application of catch up rule, the petitioner regained his seniority as Corporation Engineer because of the reason that he was senior to respondent No.3 as Assistant Corporation Engineer. However, while the petitioner was to be treated as senior to respondent No.3 as Corporation Engineer, in order to consider his candidature for promotion to the next higher post i.e. Superintending Engineer, it was incumbent upon the petitioner to fulfil the eligibility condition for promotion to the post of Superintending Engineer, viz., 7 years' experience as Corporation CWP-1292-2001 - 21 -
Engineer which he did not have on the date when respondent No.3 was promoted to that post. He hardly had one year experience and had to go a long way before he could become eligible for promotion to the post of Superintending Engineer. Judgment of the Supreme Court in R.Prabha Devi's case (supra) directly gets attracted wherein the Court succinctly brought out this principle in the following manner:-
"15. The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. The amended rule in question has specified a period of eight years' approved service in the grade of Section Officer as a condition of eligibility for being considered for promotion to Grade I post of C.S.S. This rule is equally applicable to both the direct recruit Section Officers as well as the promotee Section Officers. The submission that a senior Section Officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable. The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. This eligibility condition has to CWP-1292-2001 - 22 -
be fulfilled by the Section Officers including senior direct recruits in order to be eligible for being considered for promotion when qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post. The rule in question which prescribes a uniform period of qualified service cannot be said to be arbitrary or unjust violative of Article 14 and 16 of the Constitution. It has been rightly held by the Tribunal :
When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweigh experience.
16. It has also been observed :
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In any event, the appropriate Rule making Authority is the best judge in this regard. The Rule making Authority is certainly competent to amend the Rule and extend the period from six years to eight years so as to make the direct recruits more experienced and suitable for the higher post. That is a matter for the Rule making Authority; the Tribunal cannot sit in judgment over the opinion of the Rule making Authority. No Court or Tribunal can substitute its own view in a matter such as this. Such a Rule framed by a competent Authority cannot be struck down unless it is shown to be violative of any Fundamental Right guaranteed to a citizen under the Constitution."
17. We do not find any infirmity in the above findings arrived at by the Tribunal."
It would also be apt to quote the following discussion contained in the Division Bench judgment of this Court in Harmesh Kumar's case (supra):-
".......It would be a mere incident of service that a junior man may have the requisite qualifications for promotion whereas a senior man may not have. It was a matter of chance that a rule already existed that a person who has the experience of working as Assistant Trust Engineer for 8 years is eligible for promotion as Trust Engineer. Fortunately for respondent No.3 and unfortunately for the petitioner, respondent No.3 had 8 years 'experience' as CWP-1292-2001 - 24 -
Assistant Trust Engineer whereas the petitioner did not have."
The petitioner also cannot rely upon Circular dated 13.6.1996 which deals with altogether different aspect, namely, if senior is wrongly ignored for promotion when the junior is promoted and, realising this mistake, senior is promoted later, but retrospectively with effect from the date his junior was promoted, in such a case, the date of promotion on the higher post is ante-dated and the question of 'experience' arises in that context. In the present case, the petitioner was promoted only from 10.10.1999 and not from 14.12.1993, which even otherwise could not be. It is nowhere the case of the petitioner that he was entitled to be promoted with effect from 14.12.1993 but was ignored for promotion. For all these reasons, we do not find any merit in this petition, which is, accordingly, dismissed.
( A.K. SIKRI )
CHIEF JUSTICE
November 30, 2012 (RAKESH KUMAR JAIN)
pc JUDGE