Punjab-Haryana High Court
Bhupinder Singh And Another vs State Of Haryana And Others on 25 January, 2011
Author: Mahesh Grover
Bench: Mahesh Grover
C.W.P. No.19395 of 2010 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
C.W.P. No.19395 of 2009
DATE OF DECISION : 25.1.2011
Bhupinder Singh and another PETITIONERS
VERSUS
State of Haryana and others RESPONDENTS
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present:- Shri Anurag Goyal, Advocate for the petitioners.
Shri Sunil Nehra, Senior D.A.G. Haryana.
Shri V.K.Jindal, Advocate for the respondents.
MAHESH GROVER, J.
The petitioners have challenged the promotion of respondents 3 and 4 with a prayer for the issuance of a writ in the nature of quo-warranto since the said respondents are holding the posts of Workshop Superintendents without their being qualified under the rules. They thus, pray that their promotion orders be quashed.
To substantiate their case, they have placed reliance upon the Haryana Technical Education Department (Group A) Service Rules, 1986 to say C.W.P. No.19395 of 2010 -2- that Rule 9(1) and 9(2) provided that in the case of Superintendent Workshop, 50% posts are to be filled from amongst the Lecturers in Production Engineering or Foreman Instructors and 50% by way of direct recruitment or by transfer or deputation of officers already in service of any State Government or the Government of India.
Further reference has been made to Rule 7 of the said rules to plead that 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. The proviso to Rule 7 gives the power of relaxation in the experience clause to direct recruits in the eventuality of sufficient number of candidates belonging to SC/BC/ESM and Physically Handicapped persons not being available. The grievance of the petitioners is that four persons were ordered to be promoted and out of them only one possessed the qualification, while the others namely respondents 3 and 4 are working without their being qualified.
The petitioners also place reliance on a Division Bench judgment of this Court in Anil Sagar v. State of Haryana and others 2008(4) S.C.T.402, to contend that since they were eligible and available, their cases should have been considered.
Upon notice, the respondents have filed a reply. They have placed reliance upon Rule 17 of the Haryana Technical Education Department (Group A) Service Rules, 1986, which grants the power of relaxation in the case of an expediency. Rule 17 is reproduced below :-
"Power of relaxation 17 where the Government is, of the opinion that it is necessary or expedient to do so, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons."C.W.P. No.19395 of 2010 -3-
To justify the promotion of respondents 3 and 4, the respondents have stated in para-2 of their written statement as follows :-
"As per the restructuring plan implemented by the Department of Technical Education in year 2003, total number of sanctioned posts of Workshop Superintendent were 8. As per the provisions of the Service Rules, 1986, the 50% posts of the total sanctioned posts were to be filled by way of promotion and the rest 50% by direct recruitment through the Haryana Public Service Commission. The aforesaid 4 posts of Workshop Superintendent meant for direct recruitment were already filled up but 4 posts meant for promotion quota were lying vacant since 2002. These posts were to be filled up with the eligible candidates having the requisite qualification as per Appendix B (rule 7) as described in the foregoing para No.1 on the basis of seniority-cum-merit. Since as per the notified service rules, for promotion to the post of Workshop Superintendent, the disciplines of Mechanical, Production and Chemical Engineering only were included whereas in the changed scenario a number of disciplines have been introduced in the study scheme which necessitated to amend the existing service rules. Moreover, the post of Lecturer in Production Engineering was also not available in any of the Government Polytechnics in Haryana as this post was merged with the post of Lecturer in Mechanical Engineering in the year 2003 when restructuring plan was conducted in the Department of Technical Education. Furthermore, the pay scale of Lecturer was at par C.W.P. No.19395 of 2010 -4- with the pay scale of Workshop Superintendent. Both these posts were having the pay scale of Rs.8000-13500 at that relevant time. Therefore, the provisions of the existing rules were required to be amended keeping in view the aforesaid position. That is why, all four posts of Superintendent Workshop meant for promotion quota were lying vacant since 2002 and justification for their creation was being omitted. Therefore, the revision of service rules for the post of Workshop Superintendent has been proposed in respect of qualification and service conditions for the recruitment to the posts by way of promotion. In the proposed service rules, for the appointment other than by way of direct recruitment to the post of Superintendent Workshop, the following provisions have been laid down :
"8 years experience as Foreman Instructor.
The draft service rules have been approved by the competent authorities and the process of their notification is underway."
With reference to the above, they state that since the four posts of Workshop Superintendents meant for direct recruitment were already filled, and the remaining four posts meant for promotion quota were lying vacant since 2002, and the situation warranted the filling of such posts, they resorted to the provisions of relaxation, since none of the persons who came within the zone of seniority, fulfilled the criteria. The respondents further referred to the cases of various other employees who were similarly promoted by giving relaxation in the years 1993 and 1997 and the foremost consideration which weighed with them while making promotions, was the fact that the posts were vacant since 2002 and respondents 3 C.W.P. No.19395 of 2010 -5- and 4 had the requisite experience and also that in similar situation, earlier also, the respondents had relaxed the conditions. It was further stated in the reply that the petitioners were recommended for the posts of Foreman Instructors in the year 2003 and were appointed as such on regular basis in the same year and that they stand at Serial Nos.15 and 20 respectively and are juniormost in the gradation list. They were thus, nowhere in the zone of consideration.
The petitioners have denied that as per the gradation list of Foreman Instructors, they are lower in seniority than respondents 3 and 4. The persons who are immediately lower to respondents 3 and 4, and who could have laid their grouse regarding the promotion because they were the ones who stood to benefit in the event of the promotion of respondents 3 and 4 being set aside, have not come to the Court and the case of the petitioners, if accepted, does not grant any benefit to them for the simple reason that they are far behind in seniority. The petitioners have not pleaded in the writ petition that there were other eligible qualified candidates and they were in the immediate zone of consideration after respondents 3 and 4 and thus, their plea that the power of relaxation under Rule 17 could not have been exercised in view of the fact that the eligible candidates were available, cannot be accepted in the absence of any material to that effect. The petitioners being concededly lower down in the merit with the Foreman Instructors, cannot make a grievance of the promotion of respondents 3 and 4, to say that the power of relaxation has been exercised arbitrarily.
Once it is observed that there was nothing to suggest the availability of eligible candidates in the immediate zone of consideration, the stand of the respondents that since the posts were lying vacant since 2002 and the situation warranted the filling up of such posts which prompted them to resort to the exercise of power of relaxation, does not seem arbitrary and appears to be justified.
C.W.P. No.19395 of 2010 -6-
I do not find any merit in the writ petition.
Dismissed.
(MAHESH GROVER)
January 25, 2011 JUDGE
GD
WHETHER TO BE REFERRED TO REPORTER? YES/NO