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2008 DIGILAW 1520 (PNJ)

Amin Chand Khichy v. State Of Punjab

2008-09-04

PERMOD KOHLI

body2008
Judgment Permod Kohli, J. 1. Petitioner is a Scheduled Caste candidate. He was appointed as a Clerk/Typist on 11.03.77 against the post reserved for Scheduled Castes category. After his appointment he was promoted as Senior Clerk on .14.11.1984. The next promotion in the hierarchy of service was to the post of Assistant. Promotion to the next post of Assistant was based upon seniority/merit The eligible senior Clerk were also required to pass departmental examination in terms of Punjab State Assistant Grade Examination Rules, 1984 . Rule 4 is the relevant Rule which reads as under : "Eligibilityfor promotion to the post of Assistant. -(1) No person shall be eligible for appointment by promotion to the post of Assistant unless in addition to fulfilling the qualifications and experience prescribed for appointment by promotion to the post of Assistant, he qualifies the test." 2. It is alleged by the petitioner that he qualified the requisite examination in the year 1987 and became eligible and qualified for the promotion to the post of Assistant on the basis of his seniority-cum-merit. Seniority list of Clerks was notified as on 31.03.83 wherein petitioner Stands at serial No. 84 and respondent No. 4 at serial No. 112 and respondent No. 3 at serial. No.25. Respondent No, 3 Satpal isa general category candidate whereas Ram Rakha also belongs to Scheduled Caste. It is alleged that promotions were made to the post of Assistant from the cadre of Clerks in the year 1988 vide order dated 23.09.1988. Respondent No. 4 was promoted as Assistant by the respondent No. 2 from Ferozepur Division whereas the petitioner who was higher in rank in the seniority list was ignored. It is further stated that as per reservation rules and under the roster point vacancies occurring at serial Nos. 1,6,11,16,21,26,31 etc. were reserved for Scheduled Caste Category candidates for the purpose of promotion. It is further alleged that though on the basis of roster point the vacancy at serial No. 16 was meant for Scheduled Caste category, however, respondent No. 3 Satpal who belongs to General Category, candidate was promoted against the said vacancy at serial No. 16 and Ram Rakha, respondent No. 4 against serial No. 21 as Scheduled Caste category candidate ignoring the seniority and Claim of the petitioner who was otherwise senior to Ram Rakha. 3. 3. Petitioner Claims to have made representation but of no avail, accordingly, petitioner has filed present petition seeking his consideration for promotion to the post of Assistant against the vacancy reserved for the Scheduled Caste category candidate on the basis of his seniority and merit and from the date person junior to him was promoted. 4. The State respondent in its reply has contested the claim of the petitioner primarily on the ground that the petitioner failed to qualify the departmental examination within the first five chances available to him in terms of Rule 10(2) of the Punjab State Assistant Grade Examination Rules, 1984 and since, the private respondents passed the examination with five chances they were granted promotion earlier than the petitioner. 5. The petitioner has filed a supplementary affidavit giving the details of the promotion. It is stated that during the pendency of the petition, petitioner was promoted as Assistant/Accountant on 06.11.92 and respondent No. 4 was already promoted on 22.09.1988. Petitioner earned subsequent promotion on 05.05.93 whereas respondent No. 4 was promoted on 31.03.89 similarly petitioner was promoted as Excise and Taxation Officer on 11.4.2008 whereas respondent No. 4 was promoted as Excise and Taxation Inspector on 09.11.04. During the pendency of the petition the petitioner also Stands promoted as Assistant/Accountant and also earned further promotions, hence one of the relief Claim by the petitioner that he may be considered for promotion to the post of Assistant is rendered infructuous. 6. However the petitioners claim for promotion with effect from the date respondent No. 4 was promoted is still to be considered. From the reading of the Rule it appears that if a person qualifies the Departmental Examination within first five chances available to him he will be entitled to his seniority on the basis of his relative seniority in the lower cadre, however, if a person fails to qualify the test within first five chances then his promotion shall be effective prospectively notwithstanding his seniority in the lower category as against his Junior who have passed exam in first five chances. There is no rule which prescribes non- promotion of a person on failure to qualify the departmental examihation. In any case it is the admitted case of the parties that when the respondent No. 4 was promoted on 22.09.88 petitioner had already passed the Departmental Examination. There is no rule which prescribes non- promotion of a person on failure to qualify the departmental examihation. In any case it is the admitted case of the parties that when the respondent No. 4 was promoted on 22.09.88 petitioner had already passed the Departmental Examination. The claim of the petitioner is that only two chances were availed by him in qualifying the examination whereas the stand of the respondent isthat petitioner failed to qualify the Departmental Examination within first five chances available to him, 7. The petitioner has specifically stated in Para 3 of the rejoinder that the petitioner availed first Chance in July 1984 whereas the second Chance was availed in June 1985. It is specifically stated that the Excise and Taxation Commissioner, Punjab, Patiala did not recommend the names of the Ferozepur Division Clerks to Subordinate Services Selection Board, Punjab to sit in the Assistant Grade Examination held in July 1984 and in the next examination held in June 1985 the petitioner was issued Roll No. but the then Assistant Excise and Taxation Commissioner, Faridkot failed to despatch the Roll No. to the petitioner. Thus he could not appear in both these examinations. However, on the next available Chance the petitioner qualified the examination in the year 1987. 8. On the contrary, the respondents have not given any details as to how the petitioner has availed more than 5 chances. There is a simple Statement that the petitioner failed to qualify the examination in first five chances with no details or material on record. Apart from above factual background the issue is no more in res integra having been settled by the Apex Court in 1999(6) Supreme Court Cases 637 wherein following observations have been made: "So far as Question (e) regarding the preference inter se between the candidates who passed the test within the first five chances and the others who passed in more than five chances is concerned, we find the reasons given by the High Court in the impugned judgments including the Full Bench in Baldev Raj to be well considered, which does not call for any interference. It is not in dispute, the promotion to the post of Assistant from amongst the eligible candidates is seniority-curn-merit. Eligible candidate in this context means all those who passed the examination in less than or more than five chances. They constitute one group. It is not in dispute, the promotion to the post of Assistant from amongst the eligible candidates is seniority-curn-merit. Eligible candidate in this context means all those who passed the examination in less than or more than five chances. They constitute one group. There is no division among the qualifters either under the rules or any order. This one cohesive group has to wait for promotion till vacancy arises. Regarding the promotion from among these eligible candidates, when the principle of seniority-cum-merit is to be applied, there cannot be any preference inter se among the said two groups. Thus the impugned order has rightly conctuded, no preference can be given to those who have qualified in the first five chances over those who qualified in rnore than five chances." 9. In view of the aforesaid ratio of the judgment of the Apex Court passing of the Departmental Examination within five chances is irrelevant. Promotion to the post of Assistant is based on seniority-cum-merit. Petitioner was admittedly senior to respondent No. 4. His merit is not in dispute, therefore, the petitioner was required to be considered for promotion in the year 1988 when respondent No. 4 was considered and promoted. No valid explanation has been tendered by the respondent for ignoring the Claim of the petitioner for promotion in the year 1988. As a matter of fact the respondent No. 4 have been promoted in piace of the petitioner and has occupied the vacancy meant for the Scheduled Caste at serial No. 26 though the petitioner had the claim against the vacancy. In any case petitioner had a right of consideration for promotion prior to respondent No. 4 who has been promottd on 22.09.1988. 10. In view of the above circumstances, this petition is allowed. It is directed that petitioners promotion to the post of Assistant be made effective from 22.09.1988 instead of 06.11.1992 and his further promotion shall also be deemed to have been made with effect from the date respondent No. 4 was promoted. However, petitioner would not be entitled to monetary benefit and his promotion shall be considered on notional basis by fixing the salary and emoluments of the petitioner in higher grades at least at par being drawn by respondent No. 4. Let the process be completed within a period of 4 months from today. Petition allowed