Punjab-Haryana High Court
Anil Kumar Gupta vs State Of Haryana on 30 November, 2018
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
1
CWP No.6374 of 2000 (O&M) and
CWP No.19669 of 2012 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: 30.11.2018
CWP No.6374 of 2000 (O&M)
Anil Kumar Gupta ...Petitioner
Vs.
State of Haryana & others ...Respondents
CWP No.19669 of 2012 (O&M)
Pardeep Kumar Jain & another ...Petitioners
Vs.
State of Haryana & others ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Sanjiv Gupta, Advocate, for the petitioner(s).
Ms. Shruti Jain Goyal, DAG, Haryana.
***
RAJIV NARAIN RAINA, J.
1. This order will dispose of the above captioned writ petitions, as common questions of law and facts are involved in them which can conveniently be decided by a common order. However, the facts are taken from CWP No.6374 of 2000 for the sake of convenience.
2. CWP No.6374 of 2000 has been filed under Article 226 of the Constitution seeking a direction to the respondents to promote the petitioner as Sub-Divisional Engineer (Civil) from his due date i.e. the date when he 1 of 11 ::: Downloaded on - 06-01-2019 21:53:12 ::: 2 CWP No.6374 of 2000 (O&M) and CWP No.19669 of 2012 (O&M) acquired the higher qualification/eligibility of AMIE in view of the law laid down by the Full Bench of this Court in Punjab State Electricity Board, Patiala & another Vs. Ashok Kumar Sehgal & others, 1990 AIR(Punjab)
117. Challenge has also been made to Rule 9 and 12 of the Punjab Service of Engineers Class-II (Public Work Department) (Public Health) Rules, 1966 on the ground that they do not specifically provide for promotion of a Junior Engineer(C) to the post of Sub-Divisional Engineer(C) after attaining the higher qualification of AMIE etc. as provided for in Rule 7 (3) (ii) of the Rules.
3. The petitioner had passed his AMIE examination in the year 1987. His claim is that since he had completed 5 years of requisite service and had acquired the eligibility qualification, so he ought to have been considered for promotion to the post of Sub-Divisional Engineer(C) prior to the persons who acquired the necessary qualification afterwards. He relies upon the judgments in Prithi Singh Vs. Haryana State Electricity Board, 1993(4) SCT 647; Rajpal Vs. Haryana State Electricity Board, 1996(2) SCT 312; N. Suresh Nathan & others Vs. Union of India & others, 2010(5) SCC 692 and Parveen Gera Vs. Haryana State Electricity Board & others: Civil Appeal No.7076 of 2010 decided on 13.09.2017 contending that it is the date of acquiring the eligibility qualification which is relevant for making further promotions.
4. In the written statement filed by the State, it has been submitted that the petitioner was initially appointed as Junior Engineer(C) in PWD, Public Health department on ad hoc basis and his services could not be regularised under the Policy Instructions dated 28.02.1991 since his ACR for 1990-91 was not good. The petitioner made representation dated 03.04.1992 2 of 11 ::: Downloaded on - 06-01-2019 21:53:12 ::: 3 CWP No.6374 of 2000 (O&M) and CWP No.19669 of 2012 (O&M) to expunge the adverse remarks. His representation was pending when he filed a Civil Suit seeking regularisation of his services by a decree claiming under the Policy Instructions dated 28.02.1991 w.e.f. 31.12.1990. The suit was decreed in his favour and he was held entitled for regularisation of services w.e.f. 09.11.1984. In the appeal filed by the State of Haryana before the learned District Judge, Rohtak, the case was remanded back to the trial court on 19.02.1997. The petitioner thereafter amended the suit and claimed regularisation of his services w.e.f. 30.09.1998 under the Haryana Govt. Instructions dated 06.04.1990. The suit was again decreed in his favour by judgment and decree dated 31.10.1997. In the meanwhile, his representation against adverse remarks was rejected vide order dated 16.02.1994.
5. Subsequently, the Govt. issued Policy Instructions dated 28.04.1997 for regularising the services of ad hoc employees w.e.f. 30.09.1980, who had completed two years service on the said date. Thereafter, under the Policy Instruction dated 26.08.1997, the service of the petitioner was regularised w.e.f. 01.01.1986. Thus, the inter se seniority of the employees regularised under the Policy was to be considered in accordance with the date of joining on ad hoc basis as Junior Engineer.
6. The claim of the petitioner has been contested by the respondents on the ground that the petitioner was appointed as Junior Engineer on 09.11.1982 on ad hoc basis and his name was not included in the seniority list of Junior Engineers being an ad hoc employee. Since his services were regularised w.e.f. 01.11.1986, therefore, 5 years regular service for promotion is to be counted from 01.01.1986 and not from 09.11.1982. Accordingly, he would become eligible for being considered for 3 of 11 ::: Downloaded on - 06-01-2019 21:53:12 ::: 4 CWP No.6374 of 2000 (O&M) and CWP No.19669 of 2012 (O&M) promotion to the post of Sub-Divisional Engineer w.e.f. 01.11.1991 and not in the year 1997 as claimed by him. It is also submitted that the promotion to the post of Sub-Divisional Engineer is governed by Rule 9 of the Punjab Services of Engineer Class-II PWD (Public Health) Rules 1966 (for short "the Rules") and there is no provision in the Rules for maintaining seniority from the day of acquiring the qualification. Further, the recruitment to the post of Sub-Divisional Engineer by way of promotion provides for different streams or channels of promotion i.e. for Diploma holders and Degree holders under Rule 6 and therefore, the petitioner can only be considered under his quota as per the principle of seniority-cum-merit depending upon the availability of post.
7. It is also submitted that none of the juniors possessing AMIE/BE qualification have been promoted or given current duty charge of the post of Sub-Divisional Engineer. Respondents No.4 to 23 who have been promoted or given current duty charge of the post of Sub-Divisional Engineer are senior to the petitioner/s as Junior Engineer.
8. The promotion from the post of Junior Engineer to the post of Sub-Divisional Engineer is governed by the 1966 Rules as amended from time to time. The relevant provisions of the Rules are reproduced as under:
"6. Recruitment to the service for Cadre and ex-cadre post shall be made-
(a) 57% by direct recruitment
(b) 43% by promotion from the following categories
(i) From the members of the Haryana PWD Public
Health, Junior Engineer (Engineering) service - 25%
(ii) From Draftsmen members of the Draftsmen and Tracers Service - 6% 4 of 11 ::: Downloaded on - 06-01-2019 21:53:12 ::: 5 CWP No.6374 of 2000 (O&M) and CWP No.19669 of 2012 (O&M)
(iii) From members of the Draftsmen and Tracers Service possessing qualifications prescribed in appendix 'B' -12% xx xx xx (Vide amendment dated 29.03.2004, the said percentage from source (ii), (iii) & (iv) has been changed to 30%, 6% and 14% respectively)
7. Qualifications:-no person shall be appointed to the services, unless he:
(3) in case of appointment by promotion from source 4 under case 6(1)-
(i) is a member of the Punjab PWD (Public Health) Sectional Officers (Engineering) Service of a Draftsmen members of the Public Health Branch, Draftsmen in Tracers Service;
(ii) possesses any of the qualification included in Appendix 'B' and has put in five years service in case he possesses A.M.I.E qualifications and two years service in case he is a degree holder;
xx xx xx
9. Appointment by promotion- (1) Appointment by promotion to the service shall be made on seniority-cum-
merit basis by the Govt. in consultation with the Commission.
However, no person shall have any right for promotion merely on the basis of seniority.
xx xx xx
12. Seniority.- (1) Except as provided in Sub-rule (5) of this rule relating to officers appointed by transfer, the seniority of the members of the Service shall be determined by the order of their appointment in service according to rules 6,8 and 9 irrespective of their date of joining:
Provided that where the period of probation of an officer of an officer has been extended, the order of appointment shall be deemed to have issued on a date determined by adding to the original date the extended period of probation.
(2) the inter-se seniority of the members of the Service shall be in the order of recruitment provided under rules 6:
5 of 11 ::: Downloaded on - 06-01-2019 21:53:12 ::: 6 CWP No.6374 of 2000 (O&M) and CWP No.19669 of 2012 (O&M) Provided that in case an officer does not join his appointment within six months of the date of order of appointment the seniority shall be determined by Govt. on an adhoc basis after taking into consideration all the circumstances of the case.
(3) The inter-se seniority within the group of direct recruitment shall be as in the merit grading under rule (4) The inter-se seniority within the group of promoted officers (from a particular source) shall be as in the list approved under rule 9.
xx xx xx"
9. Rule 6 provides for various sources for appointment to the Service in a fixed ratio. The Junior Engineer/Drawing categories that acquire the required qualifications of AMIE/BE Degree have a separate quota for promotion to the post of Sub-Divisional Engineer. Rule 7 provides for the qualifications required for appointment by way of direct recruitment as well as by promotion. As per Rule 7(3) (ii) for appointment by promotion from source under Rule 6(1), the employee must possess any of the qualifications included in Appendix 'B' and has put in five years service in case he possesses AMIE qualifications and two years service in case he is a degree holder. Rule 9 lays down the mode of promotion as per seniority-cum--merit as the governing principle for appointment to the service by way of promotion. The inter-se seniority of the members is determined as per rule 12 and in case of promoted officers from a particular source it shall be as per the list approved under rule 9. There is no provision in the Rules for maintaining seniority from the date of acquiring the qualification. As and when posts meant for particular category become available the senior-most suitable incumbents possessing the requisite qualifications are considered for promotion irrespective of the date of acquiring the qualifications.
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10. The judgments cited by the counsel for the petitioner are clearly distinguishable as they have been rendered in view of their facts and the Rules/Regulations governing the Service which either mandate the preparation of a panel of the eligible candidates, as per the date of acquiring the requisite qualification, for the purpose of promotion or where the promotion is to be made solely on merit. This issue came up for consideration of the learned Single Judge in Ram Kumar Sharma Vs. State of Haryana, 1996(4) S.C.T. 715: 1996(6) SLR 450. The facts of this case were that the petitioner joined as a Junior Engineer (Mechanical) in the Haryana Public Works Department, Irrigation Branch, on September 27, 1973. He passed the AMIE examination in the year 1982. He, thus, became eligible to be considered for promotion to the post of Sub-Divisional Engineer on January 1, 1983. As against this, respondent Nos.3 and 4 had joined service as Junior Engineers on October 17, 1968 and October 3, 1961 respectively. They were, thus, senior to the petitioner. However, they had qualified the AMIE examination in the year 1983. As such, they had become eligible to be considered for promotion to the post of Sub-Divisional Engineer on January 1, 1994. The Petition was filed with the prayer that since the Petitioner had qualified the AMIE examination earlier than Respondent Nos. 3 and 4, he had a right to be considered for promotion in preference to them. In support of this submission, reference was made, inter-alia, to the judgments in Punjab State Electricity Board (supra), Prithvi Singh and another (supra) and Raj Pal and others (supra). After considering the submissions of the parties, the Court held that the petitioners have to be considered for promotion in the order of their seniority as determined under the relevant rules and not on the basis of date of acquiring the qualification 7 of 11 ::: Downloaded on - 06-01-2019 21:53:12 ::: 8 CWP No.6374 of 2000 (O&M) and CWP No.19669 of 2012 (O&M) prescribed for the higher post. The relevant paragraphs of the judgment are reproduced below:
"13. Counsel for the petitioners placed strong reliance on two decisions. Firstly, the counsel referred to a Full Bench decisions of this Court in Punjab State Electricity Board v. Ashok Kumar Sehgal, AIR 1990 Punjab and Haryana 117. They also placed reliance on the decision of a Division Bench of this Court in Surinder Mohan Sharma v. The State of Haryana, CWP No. 1302 of 1992. In Surinder Mohan Sharma's case, the question that arose for consideration was identical to the one raised in the present set of petitioner. The grievance of the petitioner was that he having "qualified the AMIE examination earlier to respondent No. 3 to 12, his seniority should have been determined on the basis of the date of acquiring the AMIE qualification ..." Reliance had been placed on the decision in Ashok Kumar Sehgal's case. The contention raised on behalf of the petitioner was accepted. The Bench held that "the claim of the petitioner is well- merited and is squarely covered by the law laid down by the Full Bench decision of this Court in AIR 1990 Punjab and Haryana 117". Accordingly, the writ petition was allowed. If the matter had rested there, the petitioners would have had a good case. However, as was pointed out on behalf of the respondents, the decision of the Division Bench was reversed by their Lordships of the Supreme Court in the Civil Appeal arising out of SLP (C) No. 7294 of 1993 (Haryana State Agricultural Marketing Board v. Shri Surinder Mohan Sharma and others), Their Lordships noticed the decisions in Ashok Kumar Sehgal's case and observed as under:-
"It is obvious from Rule 12 of the rules, quoted above that the inter se seniority between Surinder Mohan Sharma and Dinesh Kumar could only be fixed on the basis of continuous length of service in the cadre of Sub-Divisional Officers subject to the applicability of any of the clauses under proviso to the said rule. The rule nowhere provides that the seniority is to be fixed
8 of 11 ::: Downloaded on - 06-01-2019 21:53:12 ::: 9 CWP No.6374 of 2000 (O&M) and CWP No.19669 of 2012 (O&M) on the basis of the date of acquiring the eligibility qualifications. The rule which was before the Full Bench in Ashok Kumar Sehgal's case was entirely different than the rule in this case. The High Court became totally oblivious to Rule 12 of the Rules and fell into patent error in allowing the writ petition following the judgment in Ashok Kumar Sehgal's case which has no relevance whatsoever to the present case. We, therefore, allow the appeal with costs and set aside the order of the High Court dated February 1, 1993 and dismiss the writ petition filed by Surinder Mohan Sharma before the High Court. We quantify the cost as Rs. 11,000/- to be paid by respondent No. 1 Surinder Mohan Sharma to respondent No. 3 Dinesh Kumar."
The above observations clearly show that the seniority of the Overseers, the Sectional Officers or the Draftsmen has to be determined on the basis of the rule governing the service and not the date of acquiring "the eligibility qualifications.
14. In view of this authoritative pronouncement of the Apex Court, the contention raised on behalf of the petitioner that their inter se seniority had to be determined on the basis of the date of acquiring the qualifications cannot be sustained.
15. Counsel for the petitioners also referred to the decision of a Division Bench of this court in Prithvi Singh and another v. Haryana State Electricity Board and others, 1993(5) SLR 108 and a Single Bench decision in Raj Pal and others v. State of Haryana and others, 1996(2) All Instant Judgments 502. However, the observations in so far as these are relevant for the present case, were based on the decision of the Full Bench in Ashok Kumar Sehgal's case. In Surinder Mohan Sharma's case, it has been clearly ruled that seniority as determined under the rule cannot be altered on the basis of the date of acquiring the "eligibility qualifications." In view 9 of 11 ::: Downloaded on - 06-01-2019 21:53:12 ::: 10 CWP No.6374 of 2000 (O&M) and CWP No.19669 of 2012 (O&M) of this pronouncement, counsel for the petitioners can derive no advantage from both the above-mentioned decisions. The counsel also referred to the decision in Avinash Kumar v. State of Haryana, 1993(1) SLR 139. This case is clearly distinguishable. In this case, the basic controversy was as to whether the eligibility has to be seen on the date of the issue of the order of promotion or on the date of the occurrence of a vacancy. No such question arises in these cases."
11. The ratio of the judgment in Ram Kumar Sharma's case has been followed by the Division Bench of this Court in Bhiwani Parshad Vs. State of Haryana, 2000(2) SCT 74 and in Jaswant Singh Vs. State of Haryana, 2006(1) SCT 449. In Bhiwani Parshad, the Division Bench held as follows:
"8. The learned counsel for Bhiwani Parshad has brought to our notice a Single Bench judgment of this Court rendered in Ram Kumar Sharma v. State of Haryana, 1996 (6) SLR 450:
1996 (4) SCT 715 (P&H), wherein it has been said that seniority does not get altered by the date of passing the qualifying examination or acquiring the eligibility. Names have to be considered in order of seniority as fixed under the rules or the relevant executive orders. The date of passing the qualifying examination would not determine the seniority or that the names of selected candidates shall be placed in the order in which they have acquired the requisite qualifications. We concur with the principle enunciated in Ram Kumar Sharma's case (supra). We, therefore, set aside the impugned office order dated 30.9.1998 (Annexure P8) qua Bhiwani Parshad which orders his reversion from the post of an Assistant to the post of Clerk..."
12. In view of the rule position and the precedents available and considered, the entire ground is covered against the petitioner/s. The claim is not justified. Thus, the contentions of the petitioner/s for assigning them 10 of 11 ::: Downloaded on - 06-01-2019 21:53:12 ::: 11 CWP No.6374 of 2000 (O&M) and CWP No.19669 of 2012 (O&M) seniority from the date of acquiring the eligibility qualifications are liable to be rejected and those of the State upheld. Accordingly, the present and the connected case i.e. CWP No.19669 of 2012 titled 'Pardeep Kumar Jain & another Vs. State of Haryana & others' have to fail and are hereby dismissed without any order as to costs.
30.11.2018 [RAJIV NARAIN RAINA]
Vimal JUDGE
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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