IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
L.P.A. No.541 of 2009
Date of decision: 1.7.2009
Risal Singh.
-----Appellant
Vs.
The State of Haryana & others.
-----Respondents
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MRS JUSTICE DAYA CHAUDHARY
Present:- Mr. R.N. Lohan, Advocate
for the appellant.
-----
ORDER:
1. The appellant is aggrieved by rejection of his claim for
promotion by the learned Single Judge.
2. The petitioner was employed as Patwari in the
revenue department in the State of Haryana. For promotion to
the post of Kanungo under the Haryana Kanungo Service (Group
C) Rules, 1981, there is requirement of passing of qualifying
examination. The relevant part of the said Rule laying down
requirement of passing departmental examination is quoted
below:-
L.P.A. No.541 of 2009 2
“Field (i) Graduate of (i) Matriculation or
Kanungo a recognised equivalent examination
University or of recognized
Board University or Board.
(ii) Passed (ii) Passed the
Kanungo Kanungo examination
examination held by the Director."
held by the
Director.
3. The petitioner qualified the Kanungo examination held
by the Director in the year 1993 while the contesting private
respondent No.4 passed the said examination in the year 1996.
As per departmental instructions dated 12.4.2001, the petitioner
was given promotion in the year 2001 when the post fell vacant,
rejecting the claim of the contesting respondent on the ground
that he passed the examination later, even though he was senior
to the petitioner. The instructions were later on revised purporting
to be in pursuance of judgment of this Court in Arjan Dev v.
The State of Punjab and others 1997(4) RSJ 463. A show
cause notice to revert the petitioner with a view to give promotion
to the contesting respondent was issued. The petitioner
challenged the show cause notice.
4. The learned Single Judge, inter-alia, relying on
judgment of this Court in Ram Kumar Sharma v. State of
Haryana 1996(6) SLR 450 which in turn refers to judgment of the
Hon’ble Supreme Court in SLP (C) No.7294 of 1993 Haryana
L.P.A. No.541 of 2009 3
State Agricultural Marketing Board v. Surinder Mohan
Sharma and others decided on 14.9.1994, reported in 1999 SCC
(L&S) 731, dismissed the writ petition. Observations in the order
of Hon’ble the Supreme Court are:-
“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 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 Hon’ble Supreme Court, thus, observed that continuous
length of service was the basis for inter se seniority and not
passing of the qualifying examination and promotion had to be
given on that basis. There is no contrary rule, in the present
L.P.A. No.541 of 2009 4
case, about seniority being linked to passing of examination. This
being the position, the contesting respondent continued to remain
senior to the appellant irrespective of the date on which the
qualifying examination was passed. On the date on which the
post was to be filled up, the contesting respondent was senior to
the appellant and had already passed the examination. His
eligibility and seniority could not be ignored, unless the rule
specifically provided the passing of eligibility qualification earlier
to be the basis for giving preference in promotion. No doubt there
will be hardship to the appellant who is said to have worked for
eight years, the fact remains that there is only one post and the
contesting respondent is senior to the appellant and was eligible
on the relevant date.
5. In view of above, we do not find any ground to
interfere with the view taken by the learned Single Judge.
6. The appeal is dismissed.
(ADARSH KUMAR GOEL)
JUDGE
July 01, 2009 ( DAYA CHAUDHARY )
ashwani JUDGE