{"id":31724,"date":"2009-02-10T00:00:00","date_gmt":"2009-02-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/cwp-no-19660-of-2006-date-of-vs-state-of-punjab-and-others-on-10-february-2009"},"modified":"2018-05-21T07:03:18","modified_gmt":"2018-05-21T01:33:18","slug":"cwp-no-19660-of-2006-date-of-vs-state-of-punjab-and-others-on-10-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/cwp-no-19660-of-2006-date-of-vs-state-of-punjab-and-others-on-10-february-2009","title":{"rendered":"Cwp No. 19660 Of 2006 Date Of … vs State Of Punjab And Others on 10 February, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Cwp No. 19660 Of 2006 Date Of … vs State Of Punjab And Others on 10 February, 2009<\/div>\n
             IN THE HIGH COURT OF PUNJAB & HARYANA AT\n                           CHANDIGARH\n\n\n1.      CWP No. 19660 of 2006                Date of Decision: 10.2.2009\n\nBanke Bihari                                                ---Petitioner\n\n                         Vs.\n\nState of Punjab and others                                  ---Respondents\n\n2.      CWP No. 14991 of 2008\n\nBanke Bihari                                                ---Petitioner\n\n                         Vs.\n\nState of Punjab and others                                  ---Respondents\n\n\nCORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.\n\nPresent:-    Mr. H.S. Sethi, Advocate for the petitioner.\n\n             Mr. B.S. Chahal, DAG, Punjab.\n\n             Ms. Meena Bansal, Advocate for\n             Mr. Sandeep Khunger, Advocate for respondent no.2.\n\n             ***\n<\/pre>\n
PERMOD KOHLI.J (ORAL)<\/p>\n
             Both these petitions have been filed by the same petitioner and<\/p>\n
the relief claimed is inter-related. Hence, these petitions have been taken up<\/p>\n
together for disposal.\n<\/p>\n
             Petitioner was initially appointed as Draftsman on 7.5.1980 and<\/p>\n
thereafter promoted to the post of Head Draftsman on 20.9.1998. Next<\/p>\n
promotion in the hierarchy of service is to the post of Assistant Town<\/p>\n
Planner under Punjab Municipal Council Services (Recruitment and<\/p>\n
Conditions of Service) Rules, 1978. The post of Assistant Town Planner is<\/p>\n
to be filled up by direct recruitment as also promotion from the feeding<\/p>\n
channels. 50% of the vacancies are to be filled up by direct recruitment and
\n CWP No. 19660 of 2006                              -2-<\/span><\/p>\n
the balance 50% by promotion from three channels on seniority-cum-merit<\/p>\n
basis.\n<\/p>\n
            One post of the Assistant Town Planner in the pay scale of<\/p>\n
Rs.7880-15,560\/- was created on 27.2.2001 and the petitioner was given the<\/p>\n
current duty charge of the said post on the same date. On the basis of some<\/p>\n
representation the current duty charge was withdrawn w.e.f 3.5.2001 vide<\/p>\n
order dated 29.4.2001. The order of withdrawal was challenged by the<\/p>\n
petitioner in CWP No. 680 of 2001. This Court vide its interim order dated<\/p>\n
11.5.2001 stayed the order withdrawing the current duty charge. The writ<\/p>\n
petition was admitted to hearing and the interim order was continued. Said<\/p>\n
writ petition is pending. While performing his duties as Assistant Town<\/p>\n
Planner petitioner was served a charge sheet on 2.5.2003 which was replied<\/p>\n
by him on 8.6.2003. It is alleged that no enquiry has been conducted till<\/p>\n
date. In the meantime, Manohar Singh Bhatti, respondent no.2 in CWP No.<\/p>\n
19660 of 2006 was promoted as Assistant Town Planner vide order dated<\/p>\n
29.11.2006 with Endst. Dated 5.12.2006. The promotion of the respondent<\/p>\n
no.2 is under challenge in CWP No. 19660 of 2006.                The official<\/p>\n
respondents contested the claim of the petitioner for promotion on the<\/p>\n
ground that the charge sheet for major penalty is pending against him<\/p>\n
besides criminal proceedings for which FIR No. 17\/17\/ASR stands<\/p>\n
registered on 8.4.2003 for offences under Section 420\/120-B IPC read with<\/p>\n
Section 13(2) of Prevention of Corruption Act. It is accordingly stated that<\/p>\n
the petitioner was ineligible in terms of the Govt. Instructions dated<\/p>\n
22.7.1996. The respondents, however, specifically stated that on conclusion<\/p>\n
of the disciplinary proceedings and the criminal case, the petitioner shall be<\/p>\n
considered for promotion in accordance with law. During the pendency of
\n CWP No. 19660 of 2006                            -3-<\/span><\/p>\n
the aforesaid writ petition the petitioner was discharged from the criminal<\/p>\n
case. On the basis of the termination of the criminal proceedings the charge<\/p>\n
sheet against the petitioner was also withdrawn and accordingly the<\/p>\n
respondents promoted the petitioner vide order dated 5.12.2007. This fact<\/p>\n
was noticed by this Court in its order dated 6.12.2007 which reads as<\/p>\n
under:-\n<\/p>\n
            ” Grievance of the petitioner is that his junior has been<\/p>\n
promoted on 29.11.2006.\n<\/p>\n
            Learned counsel for the State says that now the petitioner has<\/p>\n
also been promoted and his grievance about his junior having been<\/p>\n
promoted from an earlier date will be considered within one month from<\/p>\n
today.\n<\/p>\n
            List again on 10.1.2008.”\n<\/p>\n
            In terms of the aforesaid order the only question, which was<\/p>\n
required to be considered by the respondents was the date of promotion.<\/p>\n
While the aforesaid writ petition CWP No. 19660 of 2006 was pending and<\/p>\n
the petitioner was promoted, the respondents passed another order dated<\/p>\n
14.8.2007 with Endst. Dated 21.8.2007 whereby the promotion granted to<\/p>\n
the petitioner vide order dated 5.12.2007 has been withdrawn. This order<\/p>\n
has been made subject matter of challenge in CWP No. 14991 of 2008.<\/p>\n
            From the aforesaid order it appears that the earlier promotion<\/p>\n
granted to the petitioner has been withdrawn on the grounds that his<\/p>\n
promotion was made against the vacant post of Building Inspector, whereas<\/p>\n
all the posts of Assistant Town Planners for the feeding channel of Head<\/p>\n
Draftsman were already filled.      It is accordingly stipulated that the<\/p>\n
promotion of the petitioner was against the rules. Same is being withdrawn
\n CWP No. 19660 of 2006                              -4-<\/span><\/p>\n
after issuing show cause notice to him.\n<\/p>\n
             I have heard learned counsel for the parties at length. Mr.<\/p>\n
Sethi, learned counsel for the petitioner has raised two questions. (1) That at<\/p>\n
the time of passing of impugned order dated 14.8.2008 a post of Assistant<\/p>\n
Town Planner meant for the feeding channel of Head Draftsman was<\/p>\n
available.   (2) The promotion made vide order dated 5.9.2007 was on<\/p>\n
regular substantive basis against an available vacancy of Assistant Town<\/p>\n
Planner. It could not have been withdrawn even if, it was meant for another<\/p>\n
feeding channel i.e. Building Inspector, the same being in relaxation of the<\/p>\n
rules.\n<\/p>\n
             Reference is made to the reply to the show cause notice.<\/p>\n
Petitioner has placed on record copy of the show cause notice dated<\/p>\n
15.4.2008 issued under Endst. Dated 22.4.2008 (Annexure P-5). This show<\/p>\n
cause notice contained the same grounds, which are incorporated in the<\/p>\n
impugned order. Petitioner’s reply to the show cause notice dated 9.5.2008<\/p>\n
is on record as Annexure P-6. Petitioner specifically pleaded that a post of<\/p>\n
Assistant Town Planner for the feeding channel of Head Draftsman was<\/p>\n
created on 28.2.2001 and petitioner was given current duty charge of the<\/p>\n
same which charge he continued to hold till date of his regular promotion on<\/p>\n
5.12.2007 and thus the impugned order has been passed on wrong premises.<\/p>\n
             In the reply filed in the second writ petition it has been<\/p>\n
admitted that the disciplinary proceedings stand terminated as the petitioner<\/p>\n
has been exonerated by the Enquiry Officer. Though, it is reiterated that the<\/p>\n
petitioner was promoted on 5.12.2007 against the quota meant for the<\/p>\n
Building Inspector. During the pendency of this petition, it was brought to<\/p>\n
the notice of this Court that one post of Assistant Town Planner is lying
\n CWP No. 19660 of 2006                              -5-<\/span><\/p>\n
vacant in the department for the quota of Head Draftsman. Accordingly, on<\/p>\n
14.12.2008 learned counsel for respondent-State was directed to seek<\/p>\n
instructions whether the Govt. intends to fill up the post. In compliance to<\/p>\n
the aforesaid order an affidavit of Mr. M.P. Arora, PCS, Additional<\/p>\n
Secretary to Govt. has been filed. The relevant extract from the affidavit<\/p>\n
reads as under:-\n<\/p>\n
            ” That the matter has been considered by the Govt. and it has<\/p>\n
been decided to fill up the two vacant posts of promotional quota of<\/p>\n
Assistant Town Planner from the feeder cadre employees of the Municipal<\/p>\n
Corporation i.e. On post from Head Draftsman and the other from Building<\/p>\n
Inspector (Technical) in due course.”\n<\/p>\n
            From the above affidavit, it is crystal clear that one vacancy of<\/p>\n
Assistant Town Planner for the feeding channel of Head Draftsman is lying<\/p>\n
vacant. The State has further expressed its intention to fill up the vacancy in<\/p>\n
due course. It is sorry state of affairs . On the one hand a clear vacancy is<\/p>\n
available in the feeding channel of Head Draftsman to which the petitioner<\/p>\n
belongs.   On the other hand, petitioner’s regular promotion has been<\/p>\n
withdrawn on the ground that no vacancy is available in the category to<\/p>\n
which the petitioner belongs. It is admitted case that the petitioner is the<\/p>\n
senior most Head Draftsman. His promotion vide order dated 5.12.2007<\/p>\n
was on regular substantive basis, though on probation for one year. His<\/p>\n
promotion has been withdrawn only on the solitary ground of non-<\/p>\n
availability of vacancy for the relevant feeding channel.       Since a clear<\/p>\n
vacancy is available and the petitioner on consideration by the competent<\/p>\n
authority was promoted on regular basis. The withdrawal of the order of<\/p>\n
promotion is unwarranted. Even if, it is assumed that at the time of granting
\n CWP No. 19660 of 2006                                -6-<\/span><\/p>\n
promotion to the petitioner on 5.12.2007 there was no vacancy of Assistant<\/p>\n
Town Planner for the feeding channel of Head Draftsman but the State<\/p>\n
decided to promote him. It is deemed to be in relaxation of the quota.<\/p>\n
             It is necessary to examine the relevant recruitment rules. Same<\/p>\n
are noticed hereunder:-\n<\/p>\n
             ” 5.   Method of recruitment:- (1) Recruitment to the posts in<\/p>\n
a Service at the time of its initial constitutions shall be made by the<\/p>\n
appointing authority by absorption of persons already in the service of a<\/p>\n
Municipal Corporation in a corresponding post at the time of the<\/p>\n
constitution of the service, provided they are found fit by an authority<\/p>\n
appointed by the Government in this behalf for becoming members of the<\/p>\n
service after taking into consideration their qualifications and service<\/p>\n
record.\n<\/p>\n
(2)          After filling in the vacancies under sub-rule (1), the remaining<\/p>\n
vacancies and the vacancies which may occur thereafter shall be filled up in<\/p>\n
the following manner:-\n<\/p>\n
(i)          Fifty per cent by direct recruitment; and\n\n(ii)         Fifty per cent by promotion on seniority-cum-merit basis.\n\n<\/pre>\n
             Provided that if no suitable candidate is available for<\/p>\n
appointment by direct recruitment or by promotion, the vacancy may be<\/p>\n
filled up by transfer or on deputation.\n<\/p>\n
             Provided further that if no qualifications have been specified in<\/p>\n
Appendix ‘B’ for the purpose of filling up the same by promotion, the posts<\/p>\n
in that service shall be filled up by direct recruitment.<\/p>\n
             (Provided further that the vacancies of Assistant Corporation<\/p>\n
Engineer shall be filled up in accordance with the following roster.
\n CWP No. 19660 of 2006                     -7-<\/span>
\n____________________________________________________________
\nSource of Recruitment of Proportion Allotment to each source in a lot
\nforty vacancies.\n<\/p>\n
____________________________________________________________1<\/p>\n
1.    Direct appointment                20    4      4      4     4      4<\/p>\n
2.    Promotion from sectional          10    2      2      2     2      2
\n      Officers.\n<\/p>\n
3.    Promotion from Head               4     1      0      1     1      1\n      Draftsman or Draftsman.\n\n4.    Promotion from Sectional          6     1      2      1     1      1\n      officers, Head Draftsman\n      or Draftsman with B.E. Or\n      A.M.I.E Degree of a\n      Recognized University.\n\n\n<\/pre>\n
____________________________________________________________<\/p>\n
             Note:- If no suitable candidate is available from source no.4<\/p>\n
vacancies shall be filled up by direct recruitment.)”<\/p>\n
             Rule 21. Power to relax:- Where the Government is satisfied<\/p>\n
that it is necessary or expedient to do so, it may, by order, for reasons to be<\/p>\n
recorded in writing, relax any of the provisions of these rules, except the<\/p>\n
educational qualifications and experience, with respect to any class or<\/p>\n
category of persons.”\n<\/p>\n
             Rule 5 deals with the method of recruitment and its sources<\/p>\n
have been prescribed as noticed herein above.\n<\/p>\n
             Rule 21 deals with the powers to relax and clearly provides for<\/p>\n
relaxation except the educational qualifications and experience. Its natural<\/p>\n
corollary is that the relaxation in respect of quota is permissible. Even<\/p>\n
though, promotion of the petitioner vide order dated 5.12.2007 does not<\/p>\n
indicate that it is in relaxation of the quota rule but it is deemed to have
\n CWP No. 19660 of 2006                              -8-<\/span><\/p>\n
been based in relaxation of the quota. A Constitution Bench of this Court in<\/p>\n
AIR (1990) SCC 1607 has laid down the following proposition:-<\/p>\n
             “(F) Where the rules permit the authorities to relax the<\/p>\n
provisions relating to the quota, ordinarily a presumption should be raised<\/p>\n
that there was such relaxation when there is a deviation from the quota<\/p>\n
rule.”\n<\/p>\n
             Even if, it is assumed that the petitioner’s promotion on<\/p>\n
5.12.2007 was in violation of the quota, however, at the time of passing of<\/p>\n
the impugned order of withdrawing the substantive promotion a vacancy<\/p>\n
belonging to the category to which the petitioner belongs had become<\/p>\n
available which fact is clearly admitted in the affidavit dated 10.2.2009 filed<\/p>\n
in response to the Court’s directions.\n<\/p>\n
             A similar issue had also came up for consideration before<\/p>\n
Hon’ble the Supreme Court in Ram Sarup Vs. State of Haryana and others<\/p>\n
(1979) 1 SCC 168, wherein it was observed as under:-\n<\/p>\n
             ” The question then arises as to what was the effect of breach of<\/p>\n
clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the<\/p>\n
appointment wholly void so as to be completely ineffective or merely<\/p>\n
irregular, so that it could be regularised as and when the appellant acquired<\/p>\n
the necessary qualifications to hold the post of Labour-cum-Conciliation<\/p>\n
Officer. We are of the view that the appointment of the appellant was<\/p>\n
irregular since he did not possess one of the three requisite qualifications<\/p>\n
but as soon as he acquired the necessary qualification of five years<\/p>\n
experience of the working of Labour Laws in any one of the three capacities<\/p>\n
mentioned in clause (1) of Rule 4 or in any higher capacity, his appointment<\/p>\n
must be regarded as having been regularised. The appellant worked as
\n CWP No. 19660 of 2006                              -9-<\/span><\/p>\n
Labour-cum-Concilliation Officer from January 1, 1968 and that being a<\/p>\n
post higher than that of Labour Inspector or Deputy Chief Inspector of<\/p>\n
shops or Wage Inspector, the experience gained by him in the working of<\/p>\n
Labour Laws in the post of Labour-cum-Conciliation Officer must be<\/p>\n
regarded as sufficient to constitute fulfilment of the requirement of five<\/p>\n
years’ experience provided in clause (1) of Rule 4. The appointment of the<\/p>\n
appellant to the post of Labour-cum-Conciliation officer, therefore, became<\/p>\n
regular from the date when he completed five years after taking into account<\/p>\n
the period of about ten months during which he worked as Chief Inspector<\/p>\n
of Shops. Once his appointment became regular on the expiry of this period<\/p>\n
of five years on his fulfilling the requirements for appointment as Labour-<\/p>\n
cum-Conciliation Officer and becoming eligible for that purpose, he could<\/p>\n
not thereafter be reverted to the post of Statistical officer. The order of<\/p>\n
reversion passed against the appellant, was, therefore, clearly illegal and it<\/p>\n
must be set aside.”\n<\/p>\n
            Even on facts the specific averment in the writ petition that post<\/p>\n
of Assistant Town Planner was created on 27.2.2001 which was occupied<\/p>\n
by the petitioner on current duty charge has not been denied. Petitioner<\/p>\n
continued to hold that post. This is also an indicator that the said post was<\/p>\n
meant for the category of Head Draftsman to which the petitioner belongs.<\/p>\n
Vide the impugned order only the petitioner’s regular promotion has been<\/p>\n
withdrawn but he continued to hold the current duty charge, which was held<\/p>\n
by him since 2001 and is protected by interim order passed in CWP No.<\/p>\n
6810 of 2001 pending till date. In view of the fact that petitioner was<\/p>\n
regularly promoted vide order dated 5.12.2007 he was eligible and qualified<\/p>\n
in all respects. Promotion has been solely withdrawn for non-availability
\n CWP No. 19660 of 2006                             -10-<\/span><\/p>\n
of the vacancy in the category and not on any other count. In view of these<\/p>\n
circumstances, instead of issuing a direction for consideration of the<\/p>\n
petitioner for promotion, the petitioners regular promotion made vide order<\/p>\n
dated 5.12.2007 has to be protected.\n<\/p>\n
            In the totality of these circumstances, this petition is allowed.<\/p>\n
Impugned order dated 14.8.2008 (Annexure P-7) passed in CWP No. 14991<\/p>\n
of 2008 is hereby quashed and the order of substantive promotion dated<\/p>\n
5.12.2007 is hereby restored with all consequential benefits.<\/p>\n
            No order as to costs.<\/p>\n
\n\n\n\n                                                      (PERMOD KOHLI)\n                                                          JUDGE\n10.2.2009\nlucky\n\n            Whether to be referred to the Reporter?      Yes.\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Cwp No. 19660 Of 2006 Date Of … vs State Of Punjab And Others on 10 February, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-31724","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nCwp No. 19660 Of 2006 Date Of ... vs State Of Punjab And Others on 10 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/cwp-no-19660-of-2006-date-of-vs-state-of-punjab-and-others-on-10-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Cwp No. 19660 Of 2006 Date Of ... vs State Of Punjab And Others on 10 February, 2009 - 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