IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
1. CWP No. 19660 of 2006 Date of Decision: 10.2.2009
Banke Bihari ---Petitioner
Vs.
State of Punjab and others ---Respondents
2. CWP No. 14991 of 2008
Banke Bihari ---Petitioner
Vs.
State of Punjab and others ---Respondents
CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.
Present:- Mr. H.S. Sethi, Advocate for the petitioner.
Mr. B.S. Chahal, DAG, Punjab.
Ms. Meena Bansal, Advocate for
Mr. Sandeep Khunger, Advocate for respondent no.2.
***
PERMOD KOHLI.J (ORAL)
Both these petitions have been filed by the same petitioner and
the relief claimed is inter-related. Hence, these petitions have been taken up
together for disposal.
Petitioner was initially appointed as Draftsman on 7.5.1980 and
thereafter promoted to the post of Head Draftsman on 20.9.1998. Next
promotion in the hierarchy of service is to the post of Assistant Town
Planner under Punjab Municipal Council Services (Recruitment and
Conditions of Service) Rules, 1978. The post of Assistant Town Planner is
to be filled up by direct recruitment as also promotion from the feeding
channels. 50% of the vacancies are to be filled up by direct recruitment and
CWP No. 19660 of 2006 -2-
the balance 50% by promotion from three channels on seniority-cum-merit
basis.
One post of the Assistant Town Planner in the pay scale of
Rs.7880-15,560/- was created on 27.2.2001 and the petitioner was given the
current duty charge of the said post on the same date. On the basis of some
representation the current duty charge was withdrawn w.e.f 3.5.2001 vide
order dated 29.4.2001. The order of withdrawal was challenged by the
petitioner in CWP No. 680 of 2001. This Court vide its interim order dated
11.5.2001 stayed the order withdrawing the current duty charge. The writ
petition was admitted to hearing and the interim order was continued. Said
writ petition is pending. While performing his duties as Assistant Town
Planner petitioner was served a charge sheet on 2.5.2003 which was replied
by him on 8.6.2003. It is alleged that no enquiry has been conducted till
date. In the meantime, Manohar Singh Bhatti, respondent no.2 in CWP No.
19660 of 2006 was promoted as Assistant Town Planner vide order dated
29.11.2006 with Endst. Dated 5.12.2006. The promotion of the respondent
no.2 is under challenge in CWP No. 19660 of 2006. The official
respondents contested the claim of the petitioner for promotion on the
ground that the charge sheet for major penalty is pending against him
besides criminal proceedings for which FIR No. 17/17/ASR stands
registered on 8.4.2003 for offences under Section 420/120-B IPC read with
Section 13(2) of Prevention of Corruption Act. It is accordingly stated that
the petitioner was ineligible in terms of the Govt. Instructions dated
22.7.1996. The respondents, however, specifically stated that on conclusion
of the disciplinary proceedings and the criminal case, the petitioner shall be
considered for promotion in accordance with law. During the pendency of
CWP No. 19660 of 2006 -3-
the aforesaid writ petition the petitioner was discharged from the criminal
case. On the basis of the termination of the criminal proceedings the charge
sheet against the petitioner was also withdrawn and accordingly the
respondents promoted the petitioner vide order dated 5.12.2007. This fact
was noticed by this Court in its order dated 6.12.2007 which reads as
under:-
” Grievance of the petitioner is that his junior has been
promoted on 29.11.2006.
Learned counsel for the State says that now the petitioner has
also been promoted and his grievance about his junior having been
promoted from an earlier date will be considered within one month from
today.
List again on 10.1.2008.”
In terms of the aforesaid order the only question, which was
required to be considered by the respondents was the date of promotion.
While the aforesaid writ petition CWP No. 19660 of 2006 was pending and
the petitioner was promoted, the respondents passed another order dated
14.8.2007 with Endst. Dated 21.8.2007 whereby the promotion granted to
the petitioner vide order dated 5.12.2007 has been withdrawn. This order
has been made subject matter of challenge in CWP No. 14991 of 2008.
From the aforesaid order it appears that the earlier promotion
granted to the petitioner has been withdrawn on the grounds that his
promotion was made against the vacant post of Building Inspector, whereas
all the posts of Assistant Town Planners for the feeding channel of Head
Draftsman were already filled. It is accordingly stipulated that the
promotion of the petitioner was against the rules. Same is being withdrawn
CWP No. 19660 of 2006 -4-
after issuing show cause notice to him.
I have heard learned counsel for the parties at length. Mr.
Sethi, learned counsel for the petitioner has raised two questions. (1) That at
the time of passing of impugned order dated 14.8.2008 a post of Assistant
Town Planner meant for the feeding channel of Head Draftsman was
available. (2) The promotion made vide order dated 5.9.2007 was on
regular substantive basis against an available vacancy of Assistant Town
Planner. It could not have been withdrawn even if, it was meant for another
feeding channel i.e. Building Inspector, the same being in relaxation of the
rules.
Reference is made to the reply to the show cause notice.
Petitioner has placed on record copy of the show cause notice dated
15.4.2008 issued under Endst. Dated 22.4.2008 (Annexure P-5). This show
cause notice contained the same grounds, which are incorporated in the
impugned order. Petitioner’s reply to the show cause notice dated 9.5.2008
is on record as Annexure P-6. Petitioner specifically pleaded that a post of
Assistant Town Planner for the feeding channel of Head Draftsman was
created on 28.2.2001 and petitioner was given current duty charge of the
same which charge he continued to hold till date of his regular promotion on
5.12.2007 and thus the impugned order has been passed on wrong premises.
In the reply filed in the second writ petition it has been
admitted that the disciplinary proceedings stand terminated as the petitioner
has been exonerated by the Enquiry Officer. Though, it is reiterated that the
petitioner was promoted on 5.12.2007 against the quota meant for the
Building Inspector. During the pendency of this petition, it was brought to
the notice of this Court that one post of Assistant Town Planner is lying
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vacant in the department for the quota of Head Draftsman. Accordingly, on
14.12.2008 learned counsel for respondent-State was directed to seek
instructions whether the Govt. intends to fill up the post. In compliance to
the aforesaid order an affidavit of Mr. M.P. Arora, PCS, Additional
Secretary to Govt. has been filed. The relevant extract from the affidavit
reads as under:-
” That the matter has been considered by the Govt. and it has
been decided to fill up the two vacant posts of promotional quota of
Assistant Town Planner from the feeder cadre employees of the Municipal
Corporation i.e. On post from Head Draftsman and the other from Building
Inspector (Technical) in due course.”
From the above affidavit, it is crystal clear that one vacancy of
Assistant Town Planner for the feeding channel of Head Draftsman is lying
vacant. The State has further expressed its intention to fill up the vacancy in
due course. It is sorry state of affairs . On the one hand a clear vacancy is
available in the feeding channel of Head Draftsman to which the petitioner
belongs. On the other hand, petitioner’s regular promotion has been
withdrawn on the ground that no vacancy is available in the category to
which the petitioner belongs. It is admitted case that the petitioner is the
senior most Head Draftsman. His promotion vide order dated 5.12.2007
was on regular substantive basis, though on probation for one year. His
promotion has been withdrawn only on the solitary ground of non-
availability of vacancy for the relevant feeding channel. Since a clear
vacancy is available and the petitioner on consideration by the competent
authority was promoted on regular basis. The withdrawal of the order of
promotion is unwarranted. Even if, it is assumed that at the time of granting
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promotion to the petitioner on 5.12.2007 there was no vacancy of Assistant
Town Planner for the feeding channel of Head Draftsman but the State
decided to promote him. It is deemed to be in relaxation of the quota.
It is necessary to examine the relevant recruitment rules. Same
are noticed hereunder:-
” 5. Method of recruitment:- (1) Recruitment to the posts in
a Service at the time of its initial constitutions shall be made by the
appointing authority by absorption of persons already in the service of a
Municipal Corporation in a corresponding post at the time of the
constitution of the service, provided they are found fit by an authority
appointed by the Government in this behalf for becoming members of the
service after taking into consideration their qualifications and service
record.
(2) After filling in the vacancies under sub-rule (1), the remaining
vacancies and the vacancies which may occur thereafter shall be filled up in
the following manner:-
(i) Fifty per cent by direct recruitment; and (ii) Fifty per cent by promotion on seniority-cum-merit basis.
Provided that if no suitable candidate is available for
appointment by direct recruitment or by promotion, the vacancy may be
filled up by transfer or on deputation.
Provided further that if no qualifications have been specified in
Appendix ‘B’ for the purpose of filling up the same by promotion, the posts
in that service shall be filled up by direct recruitment.
(Provided further that the vacancies of Assistant Corporation
Engineer shall be filled up in accordance with the following roster.
CWP No. 19660 of 2006 -7-
____________________________________________________________
Source of Recruitment of Proportion Allotment to each source in a lot
forty vacancies.
____________________________________________________________1
1. Direct appointment 20 4 4 4 4 4
2. Promotion from sectional 10 2 2 2 2 2
Officers.
3. Promotion from Head 4 1 0 1 1 1
Draftsman or Draftsman.
4. Promotion from Sectional 6 1 2 1 1 1
officers, Head Draftsman
or Draftsman with B.E. Or
A.M.I.E Degree of a
Recognized University.
____________________________________________________________
Note:- If no suitable candidate is available from source no.4
vacancies shall be filled up by direct recruitment.)”
Rule 21. Power to relax:- Where the Government is satisfied
that it is necessary or expedient to do so, it may, by order, for reasons to be
recorded in writing, relax any of the provisions of these rules, except the
educational qualifications and experience, with respect to any class or
category of persons.”
Rule 5 deals with the method of recruitment and its sources
have been prescribed as noticed herein above.
Rule 21 deals with the powers to relax and clearly provides for
relaxation except the educational qualifications and experience. Its natural
corollary is that the relaxation in respect of quota is permissible. Even
though, promotion of the petitioner vide order dated 5.12.2007 does not
indicate that it is in relaxation of the quota rule but it is deemed to have
CWP No. 19660 of 2006 -8-
been based in relaxation of the quota. A Constitution Bench of this Court in
AIR (1990) SCC 1607 has laid down the following proposition:-
“(F) Where the rules permit the authorities to relax the
provisions relating to the quota, ordinarily a presumption should be raised
that there was such relaxation when there is a deviation from the quota
rule.”
Even if, it is assumed that the petitioner’s promotion on
5.12.2007 was in violation of the quota, however, at the time of passing of
the impugned order of withdrawing the substantive promotion a vacancy
belonging to the category to which the petitioner belongs had become
available which fact is clearly admitted in the affidavit dated 10.2.2009 filed
in response to the Court’s directions.
A similar issue had also came up for consideration before
Hon’ble the Supreme Court in Ram Sarup Vs. State of Haryana and others
(1979) 1 SCC 168, wherein it was observed as under:-
” The question then arises as to what was the effect of breach of
clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the
appointment wholly void so as to be completely ineffective or merely
irregular, so that it could be regularised as and when the appellant acquired
the necessary qualifications to hold the post of Labour-cum-Conciliation
Officer. We are of the view that the appointment of the appellant was
irregular since he did not possess one of the three requisite qualifications
but as soon as he acquired the necessary qualification of five years
experience of the working of Labour Laws in any one of the three capacities
mentioned in clause (1) of Rule 4 or in any higher capacity, his appointment
must be regarded as having been regularised. The appellant worked as
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Labour-cum-Concilliation Officer from January 1, 1968 and that being a
post higher than that of Labour Inspector or Deputy Chief Inspector of
shops or Wage Inspector, the experience gained by him in the working of
Labour Laws in the post of Labour-cum-Conciliation Officer must be
regarded as sufficient to constitute fulfilment of the requirement of five
years’ experience provided in clause (1) of Rule 4. The appointment of the
appellant to the post of Labour-cum-Conciliation officer, therefore, became
regular from the date when he completed five years after taking into account
the period of about ten months during which he worked as Chief Inspector
of Shops. Once his appointment became regular on the expiry of this period
of five years on his fulfilling the requirements for appointment as Labour-
cum-Conciliation Officer and becoming eligible for that purpose, he could
not thereafter be reverted to the post of Statistical officer. The order of
reversion passed against the appellant, was, therefore, clearly illegal and it
must be set aside.”
Even on facts the specific averment in the writ petition that post
of Assistant Town Planner was created on 27.2.2001 which was occupied
by the petitioner on current duty charge has not been denied. Petitioner
continued to hold that post. This is also an indicator that the said post was
meant for the category of Head Draftsman to which the petitioner belongs.
Vide the impugned order only the petitioner’s regular promotion has been
withdrawn but he continued to hold the current duty charge, which was held
by him since 2001 and is protected by interim order passed in CWP No.
6810 of 2001 pending till date. In view of the fact that petitioner was
regularly promoted vide order dated 5.12.2007 he was eligible and qualified
in all respects. Promotion has been solely withdrawn for non-availability
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of the vacancy in the category and not on any other count. In view of these
circumstances, instead of issuing a direction for consideration of the
petitioner for promotion, the petitioners regular promotion made vide order
dated 5.12.2007 has to be protected.
In the totality of these circumstances, this petition is allowed.
Impugned order dated 14.8.2008 (Annexure P-7) passed in CWP No. 14991
of 2008 is hereby quashed and the order of substantive promotion dated
5.12.2007 is hereby restored with all consequential benefits.
No order as to costs.
(PERMOD KOHLI)
JUDGE
10.2.2009
lucky
Whether to be referred to the Reporter? Yes.