JUDGMENT
U.S. Mongia, J.
1. The petitioners are working as Senior Assistants with the Punjab Small Industries and Export Corporation Ltd. (hereinafter called the Corporation). Respondent No. 2 was working as a Senior Clerk, which is a lower post as compared to the post of Senior Assistant. Respondent No. 2 had passed the SAS examination whereas the petitioners had not passed that examination. So far as length of service is concerned, respondent No. 2 had become Senior Clerk in the year 1993 whereas petitioners were appointed as Senior Assistant in the years 1978, 1980 and 1981 respectively. Respondent No. 2 was promoted as Section Officer vide order dated October 8, 1998, copy annexure P-6. This order has been made the subject matter of challenge in the present writ petition. Notice of motion was issued. Reply has been filed.
2. Learned counsel for the petitioners argued that in the bye-laws governing the service conditions of the employees of the Corporation, there is no provision for considering Senior Clerks for promotion as Section Officer who might have passed SAS examination. It is further submitted that in fact it was during the pendency of the writ petition that the Board of Directors of the Corporation p
assed a resolution reserving 25% of the posts of Section Officers to be filled in by promotion from amongst the Senior Clerks who had passed the SAS examination. This resolution is dated June 9, 2000, and has been appended as Annexure P-10 with the replication. From the aforesaid facts it is urged that
respondent No. 2 was not eligible for consideration for promotion as Section Officer on the dale the impugned order was passed.
3. Before noticing the arguments of the learned counsel for the respondent, the relevant bye-laws framed by the Corporation under Article 73 of the Articles of Association of the Corporation for regulating the recruitment and conditions of service may be noticed :-
“3.1 (relevant portion) (a) Recruitment to the various posts under the Corporation shall be made by the Board by any one or more of the following methods;
i) by direct appointment; or
ii) by deputation from Government or any other Corporation;”
b) xxxxx
c) i) The Board/Appointing Authority may prescribe for various posts under the Corporation the qualifications, whether academic, technical or otherwise, or tests or physical standards or any experience that it may consider necessary and expedient for the efficient discharge of duties or conditions for confirmation, promotion or continuance in service.”
xxxxx
3.8 (relevant portion)
GENERAL
a) to e) xxxxx
f) “Apropos of the Punjab Govt. instructions which are and be continued to be followed on any point for which there is no corresponding provision in the Service Bye-Laws of the Corporation.”
4. On May 30,1985, the Corporation issued instructions in partial supersession of the earlier instructions under Clause 3.1 (iii)(d) of the bye- laws laying down the procedure/minimum qualifications and experience for various posts. In the general wing for the post of Section Officer/Depot Manager to be filled by promotion, the following qualifications were laid down:-“Matric with a minimum of five years experience as Sr. Assistant/Godown Supervisor/Sr. Scale Stenographer in the Corporation.”
5. In the accounts wing for the Accountants, the qualifications for filling the said post by promotion were as under:-
“Matriculate with a minimum of 5 years experience as Sr. Assistant (Accounts) or Cashier.”
6. In the 203rd meeting of the Board of Directors of the Corporation held on November 4, 1999, item No. 19 on the Agenda was as follows :-
“19. To consider to incorporate 25% reservation in the promotion policy for promotion to the post of Section Officer for employees of the Corporation having passed SAS Examination conducted by the Punjab Govt.”
The Agenda Note for the said item was as follows:-
“Agenda Item No. 19
To consider to incorporation 25% reservation in the promotion policy for promotion to the post of Section Officer for employees of the Corporation having passed S.A.S. Examination conducted by the Punjab Government.
The Punjab Government conducts examination for State Accounts Service of the Punjab Govt. employees where the employees of the Corporation/Boards arc also eligible to appear for the said examination. The Punjab Govt. also allows the successful employees of the Corporate Bodies to join in State Accounts Service of T& A Branch of the Finance Department, as Section Officers. The employees working in various Departments of the Government as well as the Corporate Bodies, on having qualified the SAS Examination, are appointed to the said service in the Finance Department.
The Department of Public Enterprises has been emphasizing the need to man the accounts posts in the Corporate Bodies by SAS qualified candidates.
It was also advised by the Punjab Govt. in Deptt. of Inds. vide Memo No. 7/21/90-5IB/2846 dated 23.3.1990 to adjust SAS qualified employees of the Corporation against available posts instead of getting persons on deputation.
There is no provision in the Promotion Policy of the Corporation to accommodate successful SAS employees of the Corporation as Section Officer (Accounts). In order to retain them in the Organisation to take advantage of their experience and specialisation and in the light of instructions of Punjab Govt. it is felt imperative to effect necessary change in the existing promotion policy in this behalf by giving them reservation of 25% in promotion to the post of SAS, even if the candidate concerned comes from the cadre lower than the Senior Assistants.
The matter is placed before the Board of Directors for their consideration and if deemed fit, the following resolution may be passed:
“Resolved that 25% reservation in promotion to the post of Section Officer be and is hereby made for the employees of the Corporation who have passed SAS Exam (Part I and II) of the Punjab Govt., even if the employees concerned comes from cadre lower than that of the Senior Assistant.”
When the matter was considered by the Board it was resolved as under :-
“Deferred.
The Board has desired that policy adopted by other Punjab Government Corporations in this regard may be obtained and studied and put up to the Board for consideration.”
7. The matter was again taken up by the Board in its 205th meeting held on June 9, 2000, where the item No. 20 of the Agenda item was the same as item No. 19 in the 203rd meeting of the Board, which has already
been reproduced above. It was resolved by the Board
as under :-
“Resolved that 25% reservation to the post of Section Officer be and is hereby made for the employees of the Corporation, who have passed SAS (Paris I & II) of the Punjab Government, even if the employee concerned comes from a cadre lower than that of the Sr. Assistant subject to the condition that minimum 5 years service in the Corporation is required for Sr. Assistant and 8 years service for Jr. Assistant/Sr. Clerk/Clerk and the relevant provisions of the PSIEC Employees Service Bye-laws or rules made thereunder shall stand amended to this extent.”
8. Learned counsel for the petitioners on the basis of the above said resolution submitted that it was for the first time that on June 9, 2000, 25% posts of Section Officers were reserved for those who had passed the SAS examination. Accordingly, as per the petitioners, there was no rule/bye-law prior to the aforesaid resolution of the Board to give preference or promote a junior person who had passed the SAS examination.
9. On the other hand, learned counsel for the official respondent argued that the bye-laws of the Corporation were silent regarding promotion of Section Officers for the purpose of looking after the accounts wing and consequently, the instructions dated February 6, 1984 of the State Government would be applicable in view of bye-law 3.8(f) that in case the bye-laws are silent on a point the Government instructions would be applicable. The instructions dated February 6, 1984, provided for filling up of supervisory post relating to the working of accounts by only those persons who are qualified and experienced and have passed the SAS examination. SAS examination has been provided under the Punjab State Subordinate Accounts (Class III Service) Rules, 1978. It is because of the aforesaid instructions that only SAS qualified are to be promoted as Section Officer.
10. The counsel for the private respondent urged that in fact the post of Accountant in the Accounts Wing had been designated as Section Officer and the petitioners were promoted as Section Officer in the Accounts Section and, therefore, the qualifications which had been laid down in the bye-laws were not applicable to Section Officers, Accounts, and only SAS qualified persons were to be appointed as Section Officer in the Account Section. After hearing learned counsel for the parties, we arc of the view that there is substance in the argument of the learned counsel for the petitioners The order of promotion of respondent No. 2. Annexure P-6, reads as under :-
“It is hereby ordered that Shri Gurdip Singh, Senior Clerk, holding the charge of Section Officer (Salary) after qualifying SAS Examination is hereby promoted as Section Officer in the grade of Rs. 6400-10640 with immediate effect.
2. It is further ordered that he will be on probation for a period of one year from the date of his joining the new assignment which can be extended further for another year by the competent authority, the total period of probation, however, shall not exceed the term of two years. If his work and conduct during the probation period is not found satisfactory, he will be reverted to his original post.”
11. ‘Persons like the petitioners were being promoted as Section Officers. The bye-laws do not make any difference between the Section Officer. In fact there is no post of Section Officer separately in the Accounts Wing. No Notification or order has been produced showing that there were any separate posts of Section Officer (Accounts) or Accountants were to be known as Section Officer (Accounts). The bye-laws, according to us, are not silent for filling up the post of Section Officer of all types. This is why for the first time the Board thought of reserving 25% of the posts of the cadre of Section Officer for the SAS qualified persons vide its resolution dated June 9, 2000, which has already been reproduced above. If the contention of the learned counsel for the respondent is correct that the Government instructions would apply, then there was no need to pass the resolution dated June 9, 2000. In the Agenda Note for the 203rd meeting of the Board (which has already been reproduced above), it was clearly mentioned that there is no provision in the promotion policy of the Corporation to accommodate successful SAS employees as Section Officers. Even vide resolution dated June 9, 2000, only 25% posts of the Section officers are to be filled through SAS qualified people. This resolution is prospective in nature and cannot be applied to the posts of Section Officer, which were in existence prior to the resolution. Those were to be filled in accordance with the qualifications laid down by the Board itself on May 30, 1985 read with bye-law 3.1. The qualifications have been laid down by the Board under bye-law 3.1(c)(i) reproduced above. Consequently, filling up the post of Section Officer by respondent No. 2 vide Annexure P6 ignoring the claim of the petitioners was not in accordance with the statutory bye-laws and the qualifications laid down by the Board. The petitioners had a prior right of consideration being Senior Assistants.
12. For the foregoing reasons, we allow this writ petition, quash the order dated October 8, 1998, copy annexure P-6 and direct the respondent-Board to consider the case of the petitioners in accordance with their seniority for promotion to the post of Section Officer. If any one of them is found suitable, he will be deemed to have been promoted from the date respondent No. 1 was promoted. However, he would not be entitled to any arrears of pay but would be entitled to reckon the date of promotion for all other purposes in the services career. Let these directions be carried out within a period of three months.
Copy of this order, attested by the Special Secretary, be given to Mr. Anil Malhotra, Advocate, for the Corporation for onward transmission to the concerned quarters. :
13. Petition allowed.