Punjab-Haryana High Court
Faqir Chand Chawla vs State Of Punjab on 5 July, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
Civil Writ Petition No.12970 of 2010 (O&M) {1}
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: July 5th, 2013
Faqir Chand Chawla
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr.Surinder Garg, Advocate,
for the petitioner.
Ms.Monica Chhibber Sharma, DAG, Punjab,
for the State.
*****
AUGUSTINE GEORGE MASIH, J.
Petitioner has approached this Court praying for issuance of a writ of mandamus directing respondent-State to grant him notional promotion on the post of Sub Divisional Engineer and to release his revised consequential benefits, i.e., arrears of revised pay, arrears of revised pensionary benefits etc. as a consequence of recommendations of the Departmental Promotion Committee dated 26.09.2007 (Annexure P-2), which recommended the case of the petitioner for promotion to the post of Sub Divisional Engineer, which is prior to the date of his retirement, i.e., 30.09.2007.
It is the contention of the counsel for the petitioner that Civil Writ Petition No.12970 of 2010 (O&M) {2} the petitioner was initially appointed as a Sectional Officer in July, 1971 in the Department of Water Supply and Sanitation. The said post of Sectional Officer was re-designated as Junior Engineer and thereafter as Assistant Engineer. The petitioner was holding the additional charge of Sub Divisional Engineer in the pay scale of Assistant Engineer w.e.f. 22.09.2005 in his own pay scale of Assistant Engineer. Government of Punjab amended the PWD (Public Health) Rules, 1967 (for short "1967 Rules") vide Engineers Group `A' Service Rules, 2007, which were made applicable w.e.f. 19.06.2007, according to which promotional quota to the post of Sub Divisional Engineer was raised to 25% from 20% as per 1967 Rules. Out of these posts of promotional quota, 50% posts were meant for diploma holders, who were promoted to the posts of Sub Divisional Engineers. The meeting of the Departmental Promotion Committee, as per the amended Rules, was held on 26.09.2007 for promotion to the post of Sub Divisional Engineer, in which the name of the petitioner was also considered. His name was recommended to be promoted as Sub Divisional Engineer and figured at Sr.No.12 of the list of the recommended candidates. Till 30.09.2007, when the petitioner retired from service, no promotion orders were passed. Subsequently, orders of promotion were passed on 10.10.2007 on the recommendations of the Departmental Promotion Committee made in meeting dated 26.09.2007, wherein the name of the petitioner did not figure.
Civil Writ Petition No.12970 of 2010 (O&M) {3} Petitioner submitted a representation on 16.10.2007 to the respondent to promote him notionally as Sub Divisional Engineer from the date of recommendations of the Departmental Promotion Committee. Qua his promotion to the post of Sub Divisional Engineer, a reminder dated 27.12.2007 was also submitted by the petitioner.
When no response was received, petitioner served a legal notice dated 27.04.2010 upon the respondent. In response to the said legal notice, petitioner was informed vide reply dated 09.06.2010 that his claim cannot be granted to him as per Para 17.10 of the Departmental Promotion Committee Guidelines, according to which promotion of the officers included in the panel would be regular from the date of validity of panel or date of their actual promotion, whichever is later. Since the recommendations of the Departmental Promotion Committee were approved by the Minister Incharge of the Department, which is the competent authority only on 10.10.2007 and on the same day the promotion orders were issued, petitioner cannot be granted the benefit of notional promotion from the date of the recommendations of the Departmental Promotion Committee along with the consequential benefits as claimed by him. This action of the respondent rejecting the claim of the petitioner stands challenged in the present writ petition with a prayer for grant of the benefit of notional promotion w.e.f. 26.09.2007 as Sub Divisional Engineer along with consequential benefits.
Civil Writ Petition No.12970 of 2010 (O&M) {4} It is the contention of the counsel for the petitioner that the petitioner has been deprived of his rightful claim by the respondent for no fault of his, specially when post against the quota as per the statutory rules for promotion was available, against which the petitioner was entitled to be promoted. For the inaction on the part of the respondent, which has resulted in the retirement of the petitioner on 30.09.2007, petitioner cannot be denied his right. Promotion should have been given effect to from the date of the recommendations of the Departmental Promotion Committee and merely because the competent authority has approved the recommendations of the Departmental Promotion Committee subsequent to the retirement of the petitioner and thereafter the promotion orders have been passed of the persons who were in service cannot be a ground for depriving the petitioner his right of promotion to the post of Sub Divisional Engineer. In support of his contention, counsel for the petitioner has referred to the observations of the Supreme Court in the case of State of Uttaranchal and another Versus Dinesh Kumar Sharma, (2007) 1 Supreme Court Cases 683, wherein it has been observed that on account of the delay in making recommendations by the competent authority for promotion of the employee, the same cannot be acted to the prejudice of the employee and the benefit should be granted to the employee concerned. On this basis, prayer has been made for allowing the present writ petition and granting writ of mandamus as Civil Writ Petition No.12970 of 2010 (O&M) {5} prayed for.
Counsel for the respondent, on the other hand, submits that the right of promotion is a statutory right. This right is for consideration for promotion and the promotion comes into effect as per the statutory rules or the instructions, which have been issued in pursuance thereto. In the absence of any challenge to the instructions applicable to the claim of the petitioner, the said instructions have to be given effect to. He further stated that the facts do not indicate that there was an inordinate delay on the part of the respondent in considering the recommendations made by the Departmental Promotion Committee as per the meeting held on 26.09.2007 for promotion to the post of Sub Divisional Engineer. The competent authority, i.e., Minister Incharge of the Department had approved the recommendations of the Departmental Promotion Committee on 10.10.2007 and on the very said date the orders of promotion of the employees, who were in service on the said date, were passed. Reference has also been made by the counsel to Para 17.10 of the Departmental Promotion Committee Guidelines, which provide that the general principle of promotion is that the officers included in the panel would be regular from the date of validity of panel or date of their actual promotion whichever is later. Since the recommendations of the Departmental Promotion Committee were approved on 10.10.2007 and the order of promotion has been passed on the said date, petitioner cannot be treated to be promoted Civil Writ Petition No.12970 of 2010 (O&M) {6} from the date of recommendations of the Departmental Promotion Committee. Reference has been made to the judgment passed by this Court in Civil Writ Petition No.9414 of 2011 (Rajiv Bhalla and another Versus State of Punjab and others), decided on 10.01.2013, wherein it has been held that the date of promotion of an employee is not the date of recommendation of the Departmental Promotion Committee but from the date of passing of the order. Reference has also been made to Para 26 of the judgment in Dinesh Kumar Sharma's case (supra), where it has been observed by the Supreme Court that unless a selection is made in accordance with the rules and in the absence of rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government, there can be no automatic promotion or appointment to any post on the recommendation of the Public Service Commission, unless the Government sanctions such promotion and appointment. On this basis, prayer has been made for dismissal of the writ petition.
I have considered the submissions made by the counsel for the parties.
It is true that the recommendation of the Departmental Promotion Committee made in the meeting held on 26.09.2007 for promotion as Sub Divisional Engineer of the petitioner along with others was prior to the date of retirement of the petitioner, i.e., 30.09.2007, but the recommendations of the Departmental Civil Writ Petition No.12970 of 2010 (O&M) {7} Promotion Committee were approved by the competent authority, i.e., Minister Incharge of the Department only on 10.10.2007, on which date the orders of promotion of the recommended candidates were passed as Sub Divisional Engineers. Merely because recommendations to the promotion of Sub Divisional Engineer have been made by the Departmental Promotion Committee in the meeting, which was held on 26.09.2007 during the period when the petitioner was in service cannot be a ground for granting promotion to the petitioner from the date of recommendations of the Departmental Promotion Committee, specially when nothing has been brought on record, i.e., statutory rules/instructions, which would support the claim of the petitioner that the order of promotion would relate back to the date of recommendations made by the Departmental Promotion Committee. To the contrary is Para 17.10 of the Departmental Promotion Committee Guidelines, according to which the general principle is that promotion of the officers included in the panel would be regular from the date of validation of panel or date of their actual promotion whichever is later. This Para 17.10 of the Departmental Promotion Committee Guidelines has not been disputed by the petitioner.
As per the admitted facts, the recommendations although have been made by the Departmental Promotion Committee in its meeting dated 26.09.2007, yet the competent authority, i.e., Minister Incharge of the Department approved the proceedings of the Civil Writ Petition No.12970 of 2010 (O&M) {8} Departmental Promotion Committee only on 10.10.2007 by which date the petitioner had already retired on superannuation on 30.09.2007. As per the Departmental Promotion Committee Guidelines, petitioner, thus, could not have been given promotion from the date of approval of the proceedings of the Departmental Promotion Committee by the competent authority as he was no more in service. The action of the respondent, thus, denying him promotion on notional basis from the date of recommendations of the Departmental Promotion Committee dated 26.09.2007 is in accordance with law. Further, the observations of the Hon'ble Supreme Court in para 26 of the judgment of Dinesh Kumar Sharma's case (supra) go against the claim of the petitioner, which lay down that there can be no automatic promotion or appointment to any post on the recommendation unless the competent authority sanctions such promotion and appointment in accordance with the procedure prescribed for the time being as per the statutory rules or in their absence as per the executive instructions issued by the Government. Further, in Rajiv Bhalla's case (supra), it has been observed that the date of promotion would be the date on which the order of promotion is passed by the competent authority and the withdrawal of the benefit granted to the petitioners in that writ petition of ante-dated promotion with effect from the date of holding of the meeting of the Departmental Promotion Committee has been upheld.
Civil Writ Petition No.12970 of 2010 (O&M) {9} The claim of the petitioner, thus, as made in the present writ petition, cannot be accepted and he cannot be granted the notional promotion as Sub Divisional Engineer from the date of recommendations made by the Departmental Promotion Committee dated 26.09.2007 as the competent authority approved the recommendations on 10.10.2007 after the retirement of the petitioner on superannuation on 30.09.2007.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
July 5th, 2013 ( AUGUSTINE GEORGE MASIH ) ramesh JUDGE