Punjab-Haryana High Court
Bahadur Singh vs State Of Haryana And Others on 8 May, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P. No.17613 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P. No.17613 of 2010
Date of Decision:- 08.05.2012
Bahadur Singh ...Petitioner
Versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. Kamal Sharma, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana
for respondent Nos.1 to 4.
Mr. Ajay Kansal, Advocate,
for respondent No.5.
AUGUSTINE GEORGE MASIH, J.(Oral)
It is the contention of the counsel for the petitioner that the petitioner was appointed as Mali-cum-Chowkidar on work charge basis on 20.05.1983. He belongs to the Backward Class category. Services of the petitioner were regularized with effect from 01.04.1993 and since then he is continuing on the said post to the satisfaction of the respondents. Respondent No.5-Anand Kumar was appointed as a Mali-cum-Chowkidar on 18.11.1985 which is after the appointment of the petitioner and his services were regularized after the date of regularization of the petitioner. Respondent No.5 is thus, junior to the petitioner as Mali-cum-Chowkidar. Respondent-Department with a mala fide intention to help Respondent No.5 unduly changed the designation of Respondent No.5 as Keyman in the year 1987. When this process was going on petitioner filed an application that he being senior should be designated as Keyman. This application is dated 17.03.1987. The said application was not considered C.W.P. No.17613 of 2010 -2- by the respondents and instead Anand Kumar-Respondent No.5 was designated as Keyman. Cases for promotion to the post of Water Pump Operator-II were considered and respondent No.5 was promoted vide order dated 27.05.1988 without considering the claim of the petitioner despite he being senior to him as the cadre of Mali-cum-Chowkidar and Keyman is the same. He contends that the petitioner, being senior and having a prior right of consideration, should have been promoted instead of Respondent No.5-Anand Kumar and therefore, the impugned order deserves to be quashed.
Counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in the case of Union of India and another Vs. Hemraj Singh Chauhan and others, 2010(2) RSJ 728, to contend that consideration for promotion is virtually a part of the fundamental right guaranteed under Article 16 of the Constitution of India. All eligible persons, therefore, should be considered for promotion to the post which right has not been granted to the petitioner. He, on this basis, submitted that, as a matter of fact, the claim of the petitioner for designation as Keyman should have been considered and he should have been designated when respondent No.5 was designated. The designation of respondent No.5 as Keyman also, therefore, cannot stand as the same is in violation of the principle of seniority.
On the other hand, counsel for the respondents have submitted that no such application dated 17.03.1987 has been received by the Department. It has further been contended that the petitioner should have, at that stage, challenged the designation of respondent No.5. Even if a representation was submitted in the year 1987 thereafter no further agitation has come forth from the petitioner. Respondent No.5 has been promoted to the post of Water Pump Operator-II, as per the C.W.P. No.17613 of 2010 -3- Haryana Public Works Department, Public Health Branch, Circle Cadre Mechanical (Group-C) Service Rules, 1998 (hereinafter referred to as '1998 Rules'), according to which, specific ratio has been laid down for various feeder cadres. Respondent No.5 has been promoted from the post of Keyman and since petitioner belongs to the Mali-cum-Chowkidar category, he has no claim qua that quota which falls to the post of Keyman. No person belonging to the Mali-cum-Chowkidar category junior to the petitioner has been promoted as Water Pump Operator-II and therefore, a right as claimed by the petitioner to promotion over and above respondent No.5 cannot sustain. Accordingly, prayer has been made for dismissal of the present writ petition.
I have heard counsel for the parties and gone through the records of the case.
The facts as stated above are not in dispute except with regard to the submission of the representation dated 17.03.1987 by the petitioner for designation as Keyman. In the light of the fact that respondent No.5 was designated as Keyman in the year 1987 and the petitioner was fully aware of this fact when despite his representation (if submitted) he should have at that very stage agitated his right for designation as a Keyman. Having slept over the issue for more than 23 years, the petitioner cannot be allowed to agitate such a claim at this belated stage when he had after submitting a representation, if any, had not further put-forth his claim. The contention of the counsel for the petitioner that respondent No.5 was intentionally designated as Keyman with an intention to promote him as Water Pump Operator-II would also not help the grouse for the reason that the 1998 Rules were promulgated almost 11 years after the designation of respondent No.5 as Keyman. There can be no dispute that a senior has a prior right to consideration for C.W.P. No.17613 of 2010 -4- promotion but the same is depending upon the statutory rules governing the same. Promotion to the post of Water Pump Operator-II is dealt by Rule 9(XLIII) of the 1998 Rules, which reads as follows:-
"(XLIII) In case of Water Pump Operator Grade-II-
(i) 50% by promotion from Keyman, Oilman, Petrolman, Chowkidar, Beldar, Mali-cum-Chowkidar, Sewerman, Sewer Helper in the ratio of 10:10:10:5:5:5:3:2, respectively: and
(ii) 50% by direct recruitment; or
(iii) by transfer or deputation of an official already in the Service of Government of India or any State Government."
Perusal of the above rule would show that there was specified quota fixed for different category of employees which was included in the feeder cadre for promotion to the post of Water Pump Operator-II. Petitioner belongs to Mali-cum-Chowkidar category and therefore, had a separate quota for promotion whereas respondent No.5 who belongs to Keyman category has a separate quota. Since, respondent No.5 has been promoted under the Statutory Rules in the quota of Keyman, petitioner has no right against the said quota and therefore, the claim of the petitioner against the quota of Keyman on which respondent No.5 has been promoted is misplaced. It is not in dispute that in the quota of Mali- cum-Chowkidar, no person junior to the petitioner stands promoted to the post of Water Pump Operator-II. As the promotion of respondent No.5 is in accordance with 1998 Rules, the contention of the petitioner cannot be accepted. As regard the judgment of the Supreme Court in the case of Union of India (supra), the law laid down therein and the ratio prescribed cannot be of any help to the petitioner.
It is settled law that all eligible employees are entitled for consideration for promotion but the same has to be based on the C.W.P. No.17613 of 2010 -5- statutory rules governing the service. Principle of legitimate expectation although cannot be disputed or denied but then the same is always dependant upon the rights which are governed by the rules governing the service. Any right which has accrued to an employee under the statutory rules must be granted to him provided that employee agitates the same within a reasonable time. Here in the present case, the grouse, if any, of the petitioner with regard to the designation of respondent No.5 as a Keyman should have been agitated by him in the year 1987 or within a reasonable time thereafter. There is an inordinate and unexplained delay of more than 13 years on the part of the petitioner in approaching this Court which itself is a reason enough to defeat the claim of the petitioner. Above all, such a claim or challenge to the designation of respondent No.5 as Keyman has not been raised in the present writ petition although it has been stated that the same is not in consonance with law.
In view of the above, I do not find any merit in the present petition and the same stands dismissed.
(AUGUSTINE GEORGE MASIH) 08.05.2012 JUDGE adhikari