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2006 DIGILAW 2112 (PNJ)

Mohan Bahadur Saru v. State Of Haryana

2006-05-15

M.M.KUMAR, M.M.S.BEDI

body2006
Judgment M. M. Kumar, J. 1. This petition filed under Article 226 of the Constitution prays for issuance of a writ in the nature of certiorari quashing order dated 19.1.2005 (Annexure P.8)appointing respondent nos.5 and 6 on the post of Clerk. It has further been prayed that respondent nos.1 to 3 be directed to promote the petitioner on the post of Clerk from the year 1999 with all consequential benefits. 2. Brief facts of the case necessary for disposal of the controversy raised in the instant petition are that the petitioner was appointed as a Peon on 13.7.1987 in the office of respondent no.2 i. e. Special Secretary -cum- Director, Rural Development, haryana, SCO 183-185, Sector 17 C, Chandigarh. His work and conduct has been assessed to be good/ very good. He passed matriculation examination from Haryana school Education Board in the year 1998 and became eligible to be considered for promotion under Rule 3,6 of the Haryana State District Rural Development Agency employees Service Rules, 1991 (for brevity the Rules ). According to the rules 80 percent of the posts of Clerks are to be filled up by direct recruitment and 20 percent by promotion from Class "c" and "d" employees. In Schedule "b" it has been made clear that Class IV employee having passed matriculation with Hindi subject and 5 years experience as such is entitled for promotion against 20 percent quota. The petitioner claimed to have fulfilled all the qualifications and is eligible for promotion. It has further been asserted that there are total five posts of Clerks and three posts are occupied by direct recruits. One of the remaining two posts is required to be filled up by way of promotion on the basis of 20 percent quota and petitioner being senior-most Class IV employee fulfilling the qualifications for promotion has staked his claim to the post of clerk. He submitted a representation to respondent no.4 i. e. Additional Deputy commissioner-cum- Chief Executive Officer, DRDA Kurukshetra. His name was recommended and the representation was forwarded to respondent no.2 who is the competent authority. All the A. C. Rs. of the petitioner have also been forwarded by respondent no.4 to respondent no.2. However, for the reasons best known to respondents the case of the petitioner has been kept pending. His name was recommended and the representation was forwarded to respondent no.2 who is the competent authority. All the A. C. Rs. of the petitioner have also been forwarded by respondent no.4 to respondent no.2. However, for the reasons best known to respondents the case of the petitioner has been kept pending. Eventually, the petitioner filed CWP No.18245 of 2004 which was disposed of by this Court with the direction to respondent no.4 to take congnizance of the legal notice dated 10.8.2002 sent by the petitioner and finally decide the same by passing a well reasoned speaking order. On 19.1.2005, the legal notice sent by the petitioner has been decided by rejecting the representation made by the petitioner. The operative part of the order passed by respondent no.4 on 19.1.2005 is extracted below for facility of reference: "the legal notice dated 10.8.2002, given by Sh. Mohan Bahadur Saru, peon have been re-examined with reference to the relevant records and drda Service Rules. He submitted the representation dated 18.6.1999 to the ADC cum CEO, DRDA, KKR for his promotion. The representation of the applicant was duly forwarded/ recommended to the competent authority i. e. Special Secretary cum Director, Rural Dev. Deptt. Haryana, chandigarh vide CEO, DRDA, KKR letter no.1774 dated 4.8.1999 which was returned by the Joint Secretary and Director, Rural Dev. Dept. Haryana Chandigarh vide letter no. POE (EA-1)-99/3979 dated 16.9.1999 with certain observations. The reply of the observations was sent to the head Office vide CEO, DRDA, KKR vide letter no.3813 dated 12.11.2000. In the meantime, the Training cum Production Centres functioning in the DRDA, KKR were closed w. e. f.1.4.1999 and Sh. Avtar Singh and sh. Lal Singh, Instructors working in the above Training Centres (being surplus) given their options for their adjustment against the two vacant posts of Clerks in the DRDA, Kurukshetra. As they have more qualifications and experience for class III posts, their case for adjustment against these posts was sent to the headquarter vide letter no.2147 dated 31.8.1989 and further vide DO Letter no.2542 dated 6.8.2001 and no.1706 dated 8.3.2004. Further more, the Joint Secretary and Director, Rural Devl. Deptt. Haryana, Chandigarh vide letter no. E A1-2002/2241 dated 6.5.2002 intimated that under Rule 3.6 of DRDA rules, creation of any new post shall be made by the Govt. Further more, the Joint Secretary and Director, Rural Devl. Deptt. Haryana, Chandigarh vide letter no. E A1-2002/2241 dated 6.5.2002 intimated that under Rule 3.6 of DRDA rules, creation of any new post shall be made by the Govt. and the Deputy Commissioner -cum Chairman of DRDA is not automatically competent for such promotion to class III employees of the DRDA. Accordingly, the above legal notice dated 10.8.2002 was duly dealt with and reply to Shri Mohan Bahadur Saru, peon vide CEO, DRDA, KKR letter no.2221 dated 26.3.2004. " 3. Mr. Ramesh Hooda, learned counsel for the petitioner has argued that respondent nos.5 and 6 have no claim to be considered for promotion to the post of Clerk nor they could be appointed by way of direct recruitment. In order to substantiate his claim, learned counsel has drawn our attention to Rules 3.7 and 3.11 of the Rules alongwith the schedule and argued that the rule prohibits appointment of any person to the service unless he is in possession of qualification and experience specified in Column iii of Schedule B appended to these rules in case of direct recruitment and those specified in column IV of the aforesaid schedule in case of appointment other than by way of direct recruitment. The quota of 20 percent of promotion from the eligible Class "c" and"d" employees has been prescribed and qualification of matric alongwith knowledge of Hindi upto matric has also been mentioned. The candidate is also required to have five years experience of service in DRDA. 4. Mr. B. R. Gupta, learned counsel for the respondents, however, has argued that with the closure of Training-cum Production Centre, two Production Instructors have been rendered surplus who were class III employees in the pay scale of Rs.5000-7850. They have joined on 1.1.1990 and have opted for being considered for the post of clerk on 26.5.1999 which is a post in the pay scale of Rs.3050-4590. Their cases are now under the consideration of the Government and if any vacancy of Clerk remains available the case of the petitioner would be considered on merit. It is claimed that one post of accounts Clerk is available but the petitioner is not qualified for the same because the minimum qualification prescribed for the afore-mentioned post is B. Com. Their cases are now under the consideration of the Government and if any vacancy of Clerk remains available the case of the petitioner would be considered on merit. It is claimed that one post of accounts Clerk is available but the petitioner is not qualified for the same because the minimum qualification prescribed for the afore-mentioned post is B. Com. We have thoughtfully considered the submissions made by the learned counsel for the parties and are of the view that this petition deserved to be allowed because according to the statutory rules, the petitioner is entitled to be considered for promotion to the post of Clerk. Rules 3.7 and 3.11 of the rules alongwith Schedule B which are relevant for deciding the instant petition are extracted below for facility of reference: "3.7 No person shall be appointed to the service unless he is in possession of qualifications and experience specified in column 3 of Schedule B to these rules in the case of direct recruitment and these specified in column 4 of the aforesaid schedule in the case of appointment otherwise than direct recruitment. " "3.11 Recruitment to any post in the service shall be made: xx xx xx xx (o) In the case of Clerks: i.80 percent by direct recruitment. ii.20 percent by promotion from amongst the class C and class D employees of the service having less scale than those of Clerks and otherwise eligible in accordance with the instructions issued by the haryana Govt. from time to time; not more than 20% of the posts of clerks shall be filled up by this manner i. e. on the basis of seniority cum merit. " schedule B "15. Clerk Graduate from Class IV employee recognised University against 20 percent with knowledge of quota who has passed english or Hindi Matric. Exam. And typing with a speed knowledge of Hindi of 30 w. p. m. Hindi upto matric standard upto matric. and has completed 5 years service in the agency. 5. A perusal of the afore-mentioned rules makes it evident that the petitioner is fully qualified under the 20 percent quota allocated to Class IV employees for promotion on the post of Clerk. The petitioner admittedly has passed matriculation examination alongwith Hindi. He has completed more than 5 years of service as Class IV employee in the respondent department. 5. A perusal of the afore-mentioned rules makes it evident that the petitioner is fully qualified under the 20 percent quota allocated to Class IV employees for promotion on the post of Clerk. The petitioner admittedly has passed matriculation examination alongwith Hindi. He has completed more than 5 years of service as Class IV employee in the respondent department. On the excuse that respondent nos.5 and 6 have been rendered surplus and they have opted for appointment on the posts of Clerk the claim of the petitioner is being ignored by posting respondent nos.5 and 6 against the afore-mentioned two posts. On our query, the learned counsel for the respondents was not able to deny that the salary of respondent nos.5 and 6 is being drawn against two posts of clerks which are lying vacant. It is appropriate to mention that three posts are already occupied by direct recruits. By virtue of 20 percent quota allocated to the departmental promotes the claim of the petitioner deserved to be considered as he is entitled in accordance with the statutory rules. The writ petition deserved to be allowed. 6. In view of the above, we allow the writ petition and direct the respondents to consider the case of the petitioner for promotion to the post of Clerk expeditiously. In case the petitioner is found suitable, he shall be promoted without any further delay. In view of the stand taken by the respondents in respect of creation of posts in order to adjust respondent nos.5 and 6, we direct respondents to take a decision in that respect and also to consider the case of the petitioner within a period of two months from the date a certified copy of this order is furnished to the respondents.