Punjab-Haryana High Court
Sarwan Kumar vs Punjab State Power Corporation Limited ... on 17 September, 2024
Neutral Citation No:=2024:PHHC:122800
1
CWP-37541
37541 of 2019
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-37541
37541 of 2019
Reserved on: 11.09
11.09.2024
Pronounced on: 17.09.2024
Sarwan Kumar
......Petitioner
Versus
Punjab State Power Corporation Ltd. and others
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: - Mr. Naresh Kaushik,, Advocate,
for the petitioner.
Mr. Rishabh Gupta, Advocate,
for the respondents.
NAMIT KUMAR, J.
1. Petitioner has invoked the jurisdiction of this Court by filing the present petition under Articles 226/227 of the Constitution of India, seeking a writ of mandamus,, for promotion to the post of Assistant Engineer w.e.f. 06.03.2011 under 3% handicapped quota as per policy instructions dated 14.12.2011 (Annexure P-4) and 13.03.2012 (Annexure P-5).
2. The brief facts, as have been pleaded in the petition, are that the petitioner joined the respondent-Corporation respondent Corporation as Junior Engineer on 23.08.1983 23.08.19 3 and thereafter he met with a major accident on 15.05.2002 and suffered permanent locomotors disability of 40%.
Thereafter, he was promoted to the post of Additional Assistant Engineer (AAE AAE)) and thereafter as Assistant Engineer on 18.11.2014.
He retired from service on attaining the age of superannuation on 1 of 9 ::: Downloaded on - 21-09-2024 06:53:14 ::: Neutral Citation No:=2024:PHHC:122800 2 CWP-37541 37541 of 2019 31.10.2018 as Assistant Engineer. It is further stated that while the petitioner was in service, service he submitted representations dated 28.09.2013, 01.07.2015, 19.07.2018 and 15.05.2019, seeking promotion to the post of Assistant Engineer under 3% quota meant for handicapped category. However, the petition petitioner has not been granted the deemed date of promotion w.e.f. 06.03.2011.
3. The claim of the petitioner has been contested by the respondents by filing a detailed written statement, wherein it has been stated that the policy for allowing reservation to the handicapped persons was introduced by the Punjab Government, Department of Social Security and Development of Women and Children, Chandigarh, vide letter dated 23.09.2011, 23.09.2011 which had come into force w.e.f.
06.03.2011,, vide letter dated 14.12.2011 14.12.2011, and for allowing 3% reservation to the physically handicapped persons Group 'A' & 'B' 'B', and roster points 11, 40 and 71 were allocated. The said policy introduced by the Punjab Government was duly ado adopted by the PSPCL vide Circular 12/2012 dated 03.12.2012. It ha has further been stated that vide its letter dated 05.07.2011, 05.07.2011 notified policy of reservation in promotions which was duly adopted by the PSPCL vide Circular 18/2011 dated 09.08.2011 and as per these instructions, 3% reservation in promotion has been allowed to the employees in group A, B, C and D, which is further bifurcated. The relevant portion from the written statement is as under: -
"1. That the petitioner has not approached the Hon'ble Court with clean hands. The petitioner has mislead this Hon'ble Court by attaching Annexure P P-11 as 2 of 9 ::: Downloaded on - 21-09-2024 06:53:15 ::: Neutral Citation No:=2024:PHHC:122800 3 CWP-37541 37541 of 2019 promotion order whereas the same is an amendment in the list of physically handicapped category officers. The petitioner has wrongly mentioned the said persons who are junior to the petitioner have been promoted whereas all the persons are senior to him and no junior has been promoted. The present writ petition is liable to be dismissed on this ground alone.
2. That it is respectfully submitted here that the policy for allowing reservation to the handicapped persons in promotion was introduced by Punjab Government Department of Social Security and Development of Women and Children, Chandigarh vide its letter no. 7/29/2010 7/29/2010-SS/941 dated 23.09.2011 which had come into force w.e.f.
06.03.2011 vide letter no 7/29/2010 7/29/2010-SS/1170 dated 14.12.2011. It is further relevant to state here that for allowing 3% reservation in promotion to the physically handicapped persons Gr Group A & B, roster points 11, 40 & 71 were allocated. The above policy introduced by Punjab Government was duly adopted by PSPCL vide its Circular 12/2012 bearing memo no. 1806/2106 dated 03.12.2012. A copy of the circular dated 03.12.2012 is being attached as Annexure R-1.
3. That Punjab Government vide its letter no.
07/29/2010-7-SS/566 SS/566 dated 05.07.2011 notified policy of reservation in promotions which was duly adopted by PSPCL vide Reg. Circular 18/2011 bearing memo no. 76548/76748 dated 09.08.2011. As per these instructions 3% reservation in promotion has been allowed to the employees in group A, B, C and D, which is further bifurcated as below: -
3 of 9 ::: Downloaded on - 21-09-2024 06:53:15 ::: Neutral Citation No:=2024:PHHC:122800 4 CWP-37541 37541 of 2019 Sr. Category of imparity Percentage of No. reservation
1. Blindness or low vision 1%
2. Deaf and dumb 1%
3. Physically handicapped and 1% cerebral palsy
4. That as per letter no. 7/29/2010 7/29/2010-SS/941 dated 23.09.2011 the criteria applicable in direct recruitments as mentioned in letter no 10/26/95 10/26/95-5-
SS/1252 dated 02.05.1997 is applicable in providing reservation ion in promotion under Physically Handicapped Category according to which the reservation made for categories of the handicapped persons mentioned above is interchangeable amongst themselves, if a candidate belonging to a category is not available or if thee nature of vacancy in office is such that a given category of person cannot be employed.
5. That as per Office memorandum of GOI Ministry of Personnel, Public Grievances & Pensions, DOPT circulated vide F. No. 36035/3/2009 - Estt. (RES.) dated 10.06.2009 (Annexure R-2) "... An employee who acquires disability after entering into service will be entitled to get the benefit of reservation as a person with disability as provided in the instructions contained in the above said memorandum from the date he prod produces a valid certificate of disability."
6. That it is submitted here that the petitioner vide his representation dated 28.09.2013 (Annexure P P-6) represented for promotion in light of the above instructions. It was on 28.09.2013 (Annexure P P-6) that the petitioner had submitted his disability certificate cate (as per which he was 40% physically 4 of 9 ::: Downloaded on - 21-09-2024 06:53:15 ::: Neutral Citation No:=2024:PHHC:122800 5 CWP-37541 37541 of 2019 handicapped) for claiming promotion as such, the petitioner was eligible for getting any benefit on reservation basis w.e.f. 28.09.2013 only. In view of these instructions the claim of the petitioner for deemed date promotion w.e.f. 06.03.2011 cannot be accepted.
7. That in order to get the benefit of reservation in promotion under Physically Handicapped Category, a list of officials was required to be formed so as to ascertain the officials, who were to be considered ed for benefit of reservation under the new instructions. The office of Deputy Chief Engineer / Personnel (Dy. Secy. Zones Confirmation Cell), PSPCL, Patiala vide its memo по. 1061 dated 25.06.2014 wrote to all organizations under the respondent corporatio corporation calling the particulars of Physically Handicapped officers along with disability certificate so that a list of Physically Handicapped JE JE-1/AAE Officials could be prepared.
8. That the list of Physically Handicapped JE JE-1/AAE Officials was necessary to identify the officials eligible for benefit under the instructions. The list of the such officers was finally published by the office of Deputy Chief Engineer / Personnel (Dy. Secy. Zones Confirmation Cell), PSPCL, Patiala vide its memo no. 1155 dated 24.08.
24.08.2015. In the meantime, the petitioner had already been promoted as Assistant Engineer/Electrical on 11.08.2014 on basis of his seniority in the rank of Additional Assistant Engineer.
9. That there is no right for promotion. Only right that exists is Right to be considered for promotion. The petitioners name was duly considered for 5 of 9 ::: Downloaded on - 21-09-2024 06:53:15 ::: Neutral Citation No:=2024:PHHC:122800 6 CWP-37541 37541 of 2019 promotion as Assistant Engineer/Electrical as per his seniority number as JE JE- 1/AAE and he was accordingly promoted as Assistant Engineer/Electrical w.e.f. 11.08.2014. It is furt further relevant to state here that no person junior to petitioner was promoted as Assistant Engineer/Electrical before him.
10. That the petitioner's request for deemed date w.e.f.
06.03.2011 was considered in light of letter no. 1170 dated 14.12.11, however same was filed with the approval of Chief Engineer/HRD in light of the fact that there are no instructions as per which the petitioner can be given retrospective promotion when none of his juniors' were promoted prior to him. Moreover, the petitioner was not entitled to deemed date promotion w.e.f. 06.03.2011 in light of the GOI's instructions circulated vide F. No. 36035/3/2009-Estt.
Estt. (RES.) dated 10.06.2009 as per which the petitioner was eligible for benefit of reservation as a person with disability fro from the date, he produces a valid certificate of disability i.e., w.e.f. 28.09.2013. The petitioner's claim for deemed date promotion (w.e.f. 06.03.2011 cannot be allowed in light of the above-mentioned facts.
x x x x
13. That the contents of Pa Para No.13 of the writ petition are wrong and denied. The document annexed by the petitioner as Annexure P P-11 is not a promotion order but it is an amendment in the list of Physically Handicapped Category officer whereby the name of Er Deepak Kurmi was added in seniority list of Physically Handicapped officers at S. No. 17-B. B. Moreover, Er Deepak Kurmi was appointed as Assistant Engineer through Direct 6 of 9 ::: Downloaded on - 21-09-2024 06:53:15 ::: Neutral Citation No:=2024:PHHC:122800 7 CWP-37541 37541 of 2019 Recruitment on 28.06.2010, as per which Er Deepak Kurmi and other officers mentioned in annexure P-11 11 are muc much senior to the petitioner.
The petitioner is misleading this Hon'ble Court by giving wrong facts and referring the document of fixation of seniority eniority as a promotion order.
14. That the contents of Para No.14 of the writ petition are wrong and denied. It is submitted here that the seniority number of the petitioner is JE JE-1/AAE R-
2507. The petitioner himself admits that employees up to the seniority No.2392 have been promoted but the details of the employees given in table annexed are all senior to the pet petitioner and does not belong to Physically Handicapped Category. It is further relevant to state here that none of the official's junior to petitioner was promoted as Assistant Engineer prior to him. The averments of the petition are false as well as mislea misleading."
4. Learned counsel for the petitioner has submitted that the petitioner is entitled for deemed date of promotion as Assistant Engineer w.e.f. 06.03.2011, the date from which 3% reservation in promotion to the physically handicapped persons has been introduced introduced.
He further submitted that the action of the respondents in not considering the claim of the petitioner as A.E. for promotion w.e.f.
06.03.2011 is totally illegal and arbitrary and is against the provisions of the Persons with Disability (Equal Opportunities Protection of Right and Full Participation) Act, 1955.
5. Per contra, learned counsel for the respondents has submitted that the petitioner has already been promoted to the post of Assistant Engineer on 18.11.2014 and has retired as such on 7 of 9 ::: Downloaded on - 21-09-2024 06:53:15 ::: Neutral Citation No:=2024:PHHC:122800 8 CWP-37541 37541 of 2019 31.10.2018. The petitioner had submitted his disability certificate only on 28.09.2013 (Annexure P-6) P for claiming promotion and, therefore therefore, there is no question of seeking deemed date of promotion w.e.f.
06.03.2011. He further submitted that roster points 11, 40 and 71 have been allocated for the physically handicapped employees and no person junior to the petitioner has been promoted. He further submitted that the present writ petition was filed on 17.12.2019 17.12.2019, after more than one year of the retirement of the petitioner.
6. I have heard learned counsel for the parties and perused the record.
7. Undisputed facts are that the petitioner jo joined the respondent--Corporation Corporation on 23.08.1983 as Junior Engineer and was promoted to the post of Additional Assistant Engineer and thereafter as Assistant Engineer on 18.11.2014. He, He for the first time submitted medical certificate on 28.09.2013 (Annexure P-6). As per the stand taken in the written statement, roster points 11, 40 and 71 have been allocated for the physically handicapped persons. No person junior to the petitioner, belonging to the physically handicapped category, has been promoted to the post of Assistant Engineer prior to the promotion of the petitioner.
8. The Hon'ble Supreme Court in Ajit Singh v. State of Punjab, 1999(4) SCT 1;
1 Union of India and others versus Sangram Keshari Nayak, 2007 (3) SCT 512 and Union of India and another versus ersus Hemraj Singh Chauhan and others, 2010(2) SCT 421 has held that the promotion is not a fundamental right, however, consideration 8 of 9 ::: Downloaded on - 21-09-2024 06:53:15 ::: Neutral Citation No:=2024:PHHC:122800 9 CWP-37541 37541 of 2019 for promotion is a fundamental right. The promotion can only be considered in terms of the rules governing the service of the employee.
9. The petitioner has already been promoted to the post of Assistant Engineer on 18.11.2014. No person junior to him belonging to the physically handicapped category has been promoted prior to the promotion of the petitioner, therefore, th the petitioner cannot claim deemed date of promotion as Assistant Engineer w.e.f. 06.03.2011.
Even otherwise, the instant petition has been filed by the petitioner after more than one year from his retirement when the relationship of master ter and servant ceased to exist.
10. Finding no merit erit in the present petition, same is dismissed with no order as to costs.
(NAMIT KUMAR)
17.09.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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