High Court Punjab-Haryana High Court

Rajinder Kumar Gautam vs State Of Punjab on 28 October, 2009

Punjab-Haryana High Court
Rajinder Kumar Gautam vs State Of Punjab on 28 October, 2009
       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 6

inter-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 7

regarding 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 8

any “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 10

on 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