In the High Court of Punjab and Haryana, Chandigarh
R.S.A. No. 713 of 1987
Date of Decision: October 28, 2009
Rajinder Kumar Gautam
...Appellant
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
Present: None for the appellant.
Mr. Rajesh Garg, Addl. AG, Punjab,
for the respondent.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in Yes
the Digest?
M.M. KUMAR, J.
This is plaintiff’s appeal filed under Section 100 of the
Code of Civil Procedure, 1908 (for brevity, ‘the Code’) challenging
the judgment of reversal, dated 7.2.1987, passed by the learned lower
Appellate Court dismissing his suit. The plaintiff-appellant has
earlier filed Civil Suit No. 41 of 22.3.1985, seeking a declaration to
the effect that the order dated 30.10.1984 passed by the Director,
Food and Supplies and Special Secretary to Government of Punjab,
reverting him from the post of Junior Analyst to that of Sub-Inspector
was illegal, void, against the rules etc. The plaintiff-appellant had
R.S.A. No. 713 of 1987 2
claimed that he was entitled to work regularly on the post of Junior
Analyst with effect from 27.10.1976 and was thus entitled to all the
benefits towards seniority and promotion etc. attached to the post of
Junior Analyst. He was appointed as Sub-Inspector in the Food and
Supplies Department on 27.4.1972 where he joined as such on
2.6.1972 (Ex. P13). He worked as Sub-Inspector before his
promotion to the post of Junior Analyst in the year 1976. In
pursuance of exercise of option from Sub-Inspector, Food and
Supplies, called by the Director, the plaintiff-appellant was promoted
as Junior Analyst because he fulfilled all the requisite qualifications.
He was accordingly selected and posted as Junior Analyst w.e.f.
27.10.1976 where he continues to work without break till 1984. He
claimed that it was a selection post as there was no channel of
promotion from the post of Sub-Inspector to that of Junior Analyst.
Subsequently, on 9.6.1981 the department called for option for
promotion to the post of Inspector from that of Sub-Inspector and
Junior Analyst working in the department. It was clarified that those
who were not to exercise option for promotion as Inspector, were not
to be considered for such promotion. The plaintiff-appellant claims
that he opted to be absorbed as Junior Analyst and expressed through
his option that he wanted to forego his promotion as Inspector in
regular line of promotion.
2. On 6.8.1984, the Director, Food and Supplies called for
option from Sub-Inspectors and Junior Analysts to fill up the post of
Junior Analyst on regular basis, who fulfilled the requisite
R.S.A. No. 713 of 1987 3
qualification. The plaintiff-appellant opted for appointment as Junior
Analyst on regular basis. However, on 30.10.1984 he was reverted as
Sub-Inspector, which was subject matter of challenge in the suit. The
basic ground of challenge is that the plaintiff-appellant was selected
as Junior Analyst in the year 1976 and there has been subsequent
selection in the years 1978, 1979, 1980 and 1982, of persons who are
junior to him and they have since been working. The grievance is
that the plaintiff-appellant being senior-most, has been illegally
reverted. It is also claimed that the order dated 27.10.1976 speaks to
the effect that the plaintiff-appellant was permanently absorbed and
promoted as Junior Analyst.
3. The State of Punjab contested the claim made by the
plaintiff-appellant and asserted in the written statement that he was
merely transferred from the post of Sub-Inspector to that of Junior
Analyst but no promotion to the post of Junior Analyst was ever made
at Batala Laboratory. It was categorically denied that the plaintiff-
appellant was promoted on selection as Junior Analyst. There is no
element of promotion involved as the pay scale of the post of Junior
Analyst and that of Sub-Inspector was the same. They were inter-
changeable and all the Sub-Inspectors senior to the plaintiff-appellant
were transferred and deputed to work as Junior Analyst on temporary
arrangement with a clear stipulation that they were not to claim
promotion/seniority in the cadre of Junior Analyst, vide order dated
30.10.1984. The respondents have also clarified that no person junior
to the plaintiff-appellant has been working as Junior Analyst and no
R.S.A. No. 713 of 1987 4
promotions were made on 27.10.1976. The Trial Court framed the
following four issues:-
“1) Whether the order dated 30.10.1984 of the Special
Secretary to Govt. (Punjab) is illegal, void and
capricious on the ground given in para-7 of the
plaint?
2) Whether the plaintiff has no cause of action?
3) Whether the plaintiff has no locus standi?
4) Relief."
4. The Trial Court recorded a finding that there was no
regular channel of promotion from the post of Sub-Inspector to that of
Junior Analyst. A Sub-Inspector working in the Food and Supplies
Department had regular channel of promotion to the post of Inspector.
However, the appointment to the post of Junior Analyst is a selection
made on merit. The plaintiff-appellant had applied in response to
requisition circulated within the department on 9.9.1975 because he
fulfilled all the qualifications contemplated by Rule 9(Q) of the
Punjab Food and Supplies Department (State Service Class III) Rules,
1968 (for brevity, ‘the Rules’). According to Rule 9(Q) of the Rules a
Sub-Inspector could be promoted to the post of Junior Analyst if such
a Sub-Inspector has the qualification of Intermediate and had worked
on their post for a minimum period of two years. Apart from filling
up the post of Junior Analyst by direct appointment, the Rule provide
for appointment by transfer or deputation of an officer already in
service of the Government of India or of the State. The finding given
R.S.A. No. 713 of 1987 5
by the Trial Court is that the selection was made on merit, which was
against a permanent vacant post available at that time. It has also
been found that the selection was strictly in accordance with Rule 9
(Q) of the Rules. An entry to that effect was made in the Service
Book of the plaintiff-appellant showing that he stood promoted as
Junior Analyst. On promotion he was then transferred to Gurdaspur.
He continued to hold the post till 30.10.1984 when he was reverted.
The finding of the Trial Court on the aforesaid issue reads thus:-
“……The true position which comes out from the
evidence oral as well as documentary on record is that
the plaintiff has been promoted and designated as Junior
Analyst but the department vide impugned order had not
only changed the duty of the plaintiff but has actually
reverted him as Sub Inspector. He has been deprived his
right to be promoted as Head Analyst which is next
higher promotion in the cadre of Junior Analyst and this
right cannot be denied to him. He continued to serve as
Junior Analyst for more than 8 years and vide impugned
order he stood reverted. The cadre of the plaintiff cannot
be changed by the department without proper notice. He
had continued and put into the cadre of Junior Analyst
with his consent and with due selection and with the
orders of the defendant. As per rules of the department,
the post of Sub Inspector and Junior Analyst fall in
different cadres. These posts are not inter-changeable or
R.S.A. No. 713 of 1987 6inter-transferable. They enjoy different cadre and status
distinct from each other. Their line of promotion is
based on the seniority in their own cadre. A person
working in a particular cadre cannot be compelled or
transferred to another cadre. In this view of the matter,
the order itself is illegal on this ground.”
5. The Trial Court further held that the maximum three
years period of probation for direct recruitment has also come to an
end and since the plaintiff-appellant continue to hold the post for
more than 8 years, he was deemed to be confirmed on the post of
Junior Analyst. Accordingly, the order of reversion, dated
30.10.1984, was set aside and declared as patently illegal. Issue Nos.
2 and 3 were not pressed before the Trial Court and, therefore, both
the issues were decided against the defendant-respondent.
Accordingly, the suit was decreed.
6. On appeal by the defendant-respondent State of Punjab,
learned lower Appellate Court found that there was no order of
promotion and merely because the plaintiff-appellant was posted to
work as Junior Analyst, the same could not have been regarded as
promotion. The view of the learned lower Appellate Court is
discernible from the following extracts of para 8:-
“8. ……Now the question arises whether the Court
should conclude from this material that the respondent-
plaintiff was really ‘promoted’ to the post of Junior
Analyst inspite of the fact that there is no specific order
R.S.A. No. 713 of 1987 7regarding promotion of the respondent-plaintiff. I am of
the view that it is not at all open to the Court to give this
verdict. It is true that under the rules which then
prevailed and as contained in Ex. P11 a person could be
posted as a Junior Analyst out of Sub Inspectors by way
of “Promotion” if he had two years experience as a Sub
Inspector and if he was intermediate. This however, will
not mean that if a Sub Inspector had the requisite
experience and the requisite education and if he was
posted to work as a Junior Analyst then automatically he
should be deemed to have been promoted. In this very
rule it is provided that a person can be transferred on
deputation to work in this capacity if such a person is
already in the service of Government of India or of a
State Government holding appointment equal to the post
held by departmental official eligible for appointment by
promotion. In other words a person equal to the rank.
Sub Inspector and in the employment of the State
Government and having requisite qualification could be
deputed to work as a Junior Analyst. The respondent-
plaintiff was already in the employment of the State
Govt. and if the State Govt. felt that he had the requisite
qualifications then he could certainly be transferred and
deputed to work as a Junior Analyst and having regard to
the nature of the order Ex. P15 which does not indicate
R.S.A. No. 713 of 1987 8any “promotion” the conclusion must be reached that
prima facie and apparent meaning should be given to this
order and it must be held that the respondent-plaintiff
was only transferred and deputed to do the job of a
Junior Analyst. It will not make any difference if any
further conditions by way of clarification were
incorporated in the said order or not.”
7. On 2.3.1987, when the appeal came up for motion
hearing, this Court while issuing notice of motion, stayed reversion of
the plaintiff-appellant by observing that C.W.P. Nos. 1944 and 5365
of 1986, filed by some other Junior Analysts stood admitted. The
record of C.W.P. No. 1944 of 1986 shows that it was filed by 26
Junior Analysts who were earlier working as Sub-Inspectors. They
had claimed that they were senior to the plaintiff-appellant.
8. Another writ petition, bearing CWP No. 1925 of 1987
was also filed where it was claimed that the petitioner therein was
senior to the plaintiff-appellant as Sub-Inspector. The writ petitions
were admitted and the reversions of those petitioners in all the
petitions were stayed. The Division Bench after placing reliance on
another Division Bench judgment of this Court rendered in
Harjinder Singh v. State of Punjab and another, 1987 (4) S.L.R.
115, allowed the petitions and issued direction to the defendant-State
to consider the petitioners for regularization of their services as
Junior Analyst on the basis of seniority-cum-merit. If on such
R.S.A. No. 713 of 1987 9
consideration they were found suitable for regularisation then further
direction was issued to regularise their services as Junior Analyst.
9. However, on the record of the appeal there is no mention
about the fate of the plaintiff-appellant and, therefore, I am of the
considered view that the following substantive question of law would
arise for determination of this Court:-
“Whether a Sub Inspector could claim promotion when
he was posted as Junior Analyst merely because he
happen to satisfy the necessary conditions for promotion
as contemplated by Rule 9(Q)(ii) of the Punjab Food and
Supplies Department (State Service Class III) Rules,
1968?”
10. It would be necessary first to examine Rule 9(Q) of the
Rules to determine whether there was any element of promotion of
the plaintiff-appellant on the post of Junior Analyst. Rule 9(Q) of the
Rules reads as under:-
“9. Method of appointment:- Appointments to
posts in the Service shall be made in the following
manner:-
xxx xxx xxx xxx
xxx xxx xxx
(Q) In the case of Junior Analysts:-
(i) by direct appointment; or
(ii) by promotion from amongst Sub-Inspectors;
provided they are Intermediate and have worked
R.S.A. No. 713 of 1987 10on the post of Sub-Inspector for a minimum period
of 2 years; or
(iii) by transfer or deputation of an official already in
the service of the Government of India or of a
State Government holding appointment equivalent
to the post held by the departmental officials
eligible for appointment by promotion.”
11. A cursory glance of Rule 9(Q) of the Rules shows that
there are various modes of appointment on the post of Junior Analyst.
It can be by direct appointment, by promotion from amongst Sub-
Inspectors and another method is by transfer or deputation. In order
to earn promotion, a Sub-Inspector must fulfill two conditions,
namely, he is Intermediate and had worked on the post of Sub-
Inspector for a minimum period of two years. The findings recorded
by the learned Lower Appellate Court shows that there is no order of
promotion promoting the plaintiff-appellant to the post of Junior
Analyst. The plaintiff-appellant was given posting on 27.10.1976
(Ex. P-15) along with 20 other Sub-Inspectors. There was no process
of promotion undertaken which require examination of service record
including the Annual Confidential Reports. The order dated
27.10.1976 (Ex. P-15) could not be regarded as an order of
promotion. The defendant-respondent State in para 3 of the written
statement has explained that some of the Sub-Inspectors were
appointed on ad hoc basis during 1971 and the other came to be
appointed on regular basis in 1972. No regular recruitment on the
R.S.A. No. 713 of 1987 11
post of Junior Analyst could have been made due to pending dispute
regarding seniority. Therefore, it was considered to be appropriate to
appoint them by transfer on the post of Junior Analyst. The order
dated 27.10.1976 (Ex. P-15) came to be issued not only in respect of
the plaintiff-appellant but even in respect of others. It is a
coincidence that the plaintiff-appellant fulfilled the educational and
qualifications with regard to experience. The plaintiff-appellant
cannot be regarded to have ever been put on probation. Nor any
report with regard to his work and conduct within the meaning of
Rule 10 of the Rules was ever obtained. Therefore, transfer and
posting of the plaintiff-appellant as Junior Analyst would not enure
the benefit of promotion and the question of law is answered against
the plaintiff-appellant upholding the view taken by the learned Lower
Appellate Court.
12. As a sequel to the aforesaid discussion the appeal is
dismissed. However, if any decision by the defendant-respondent
State has already been taken in pursuance to the directions issued by
the Division Bench of this Court in C.W.P. No. 1925 of 1987,
decided on 27.9.1988 (Manohar Lal Chhabra v. State of Punjab and
another) then that decision shall prevail.
13. The appeal stands disposed of in the above terms.
(M.M. KUMAR)
R.S.A. No. 713 of 1987 12
October 28, 2009 JUDGE
Pkapoor