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Punjab High Court · body

2009 DIGILAW 1587 (PNJ)

Ravi Dutt Mehral v. State Of Punjab

2009-09-08

PERMOD KOHLI

body2009
Judgment Permod Kohli, J. 1. The petitioner was appointed as Ayurvedic Medical Officer on selection by the Punjab Public Service Commission vide order dated 24.12.1981. The service conditions of the petitioner are governed and regulated by the statutory Rules called the Punjab Ayurvedic (Group "A") Service Rules, 2008 notified by Notification dated 25.3.2008. Next promotion from the post District Ayurvedic/Unani Officer. The Petitioner as also respondent No. 5 belong to the reserved category of Scheduled Castes in the Cadre of Ayurvedic Medical Officer. The petitioner is senior to respondent No. 5. As per the seniority list circulated up to 31.3.2007, the petitioner stands at Sr. No. 135 whereas respondent No. 5. stands at Sr. No. 183 of the Seniority List and an extract thereof has been produced as Annexure P-1 Promotion to the post of District Ayurvedic/Unani Officer was made vide order dated 19.8.2008 (Annexure P-4) whereby respondent No. 5 has been promoted to the aforesaid post superseding the petitioner. It is this order (Annexure P-4) Which is subject matter of challenge in the present writ petition. 2. The petitioner has challenged the promotion of respondent No. 5 as 1also his non-promotion vide the impugned order in the present case. While promoting respondent No. 5 against the Reserved Category vacancy of Scheduled Castes, it has been stipulated in the impugned order that the petitioners name was considered in Scheduled Caste Category, but on account of his benchmark being 11, he could not be promoted as the minimum benchmark provided under the instructions of the Personnel Department is 12 for promotion to the post of District Ayurvedic & Unani Officer. 3. Rule 5 read with Appendix B of the Ayurvedic (Group "A") Service Rules, 2008 provides for method of appointment, qualification and experience. The aforesaid Rule 5 and Appendix B read as under :- "5. Method of appointment, qualifications and experience- (1) Appointment to the Service shall be made in the manner specified in Appendix "B". Provided that, if no suitable candidate is available for appointment by promotion and by direct appointment, then appointment to the Service shall be made by transfer of a person holding a similar or an identical post under a State Government or Government of India. (2) No person shall be appointed to a sport in the Service unless the possesses the qualification and experience as specified against that post in appendix "B". (2) No person shall be appointed to a sport in the Service unless the possesses the qualification and experience as specified against that post in appendix "B". (3) Appointment to the Service by promotion shall be made on the basis of seniority-cum-merit, nut no person shall have any right to claim promotion the basis of seniority alone." Appendix "B" Sr. No. Designation of the Post of Qualification Percentage for appointment by Method of Appointment Appointment By & experience Promotion Direct Appointment Promotion Direct Appointment 1. 2. 3. 4. 5. 6 XXX XXX XXX XXX XXX XXX 3. District Ayurvedic/Unani Officer Hundred percent All posts except one shall be filled up from amongst the Senior Ayurvedic Physician who has an experience of working as such for a minimum period of one year. If the required number of eligible Senior Ayurvedic Physicians are not available, then the post shall be filled up from amongst Ayurvedic Medical Officer: then the post shall be filled up from amongst : Provided that the incumbent has worked as Ayurvedic Medical Officer for a minimum period of ten years. One post shall be filled up by promotion from amongst the Unani Medical Officer : Provided that the Incumbent has at least tens years experience as Unani Medical Officer." From the conjoint reading of Rule 5 alongwith Appendix B, it is apparent that the post of District Ayurvedic/Unani Officer is to filled up hundred per cent by promotion from feeding channel of Senior Ayurvedic Physician and all posts except one shall be filled up from amongst the Senior Ayurvedic Physician, who has an experience of one year. It is further provided that if the required number of eligible Senior Ayurvedic physicians are not available, then the post shall be filled up from amongst Ayurvedic Medical Officer, provided the incumbent has worked as such or a minimum period of ten years. It is further provided that one post shall be filled up by promotion from amongst the Unani Medical Officer Provided the incumbent has at least ten years experience as unani Medical Officer. Sub Rule (3) of Rule 5 also lays down that the appointment to the service by promotion shall be made on the basis of seniority-cum-merit, but no member shall have any right to claim promotion on the basis of seniority alone. Sub Rule (3) of Rule 5 also lays down that the appointment to the service by promotion shall be made on the basis of seniority-cum-merit, but no member shall have any right to claim promotion on the basis of seniority alone. Apart from the aforesaid Rules, a separate rule, namely, Punjab Civil Service (General and Common Condition of Service) Rules, 1994, (hereinafter referred to as "the 1994 Rules") as notified vide Notification dated 4.5.1994 are also applicable for appointment to Group "A" and Group "C" service. Rule 18 of the 1994 Rules reads as under :- "18. Promotion to Group "A" and Group "B" Services" :- (1) (a) for promotion to the post as Head of Department would be strictly on the basis of merit-cum-seniority as per the instructions issued by the Government from time to time. The minimum benchmark for promotion for such post would be "Very Good". The Officer who is graded as "Outstanding" would supersede the Officer graded as "Very Good". (b)For promotion to they post falling in Group "A" other than Head Department, the minimum benchmark will be "very Good" as per the instructions issued by the Government from time to time. There shall be no super-session on the basis of merit. (c) For promotion to the post falling in Group "B", the minimum benchmark will be "Good" and there shall be " Good" and there shall be no suppression on the basis of merit......." 4. It is contended on behalf of the petitioner that the promotion to the post in question is regulated by the statutory rules which, inter alia, provides promotion on the principle of "Seniority-cum-Merit". Rule 18 (1) (b) of the 1994 Rules further deal with for promotion to Group "A" posts other than the Head of Department. The minimum benchmark will he "Very Good" as per the instructions issued by the Government from time to time and there shall he no supersession on the basis of merit. In view of the aformentioned statutory rules, it has been argued on behalf of the petitioner that the Selection Committee has committed grave illegality in ignoring the seniority of the petitioner and making promotions on the basis of the so called benchmark relaying some government instructions. It is further stated that the Government instructions cannot supersede, or nullify the statutory rules. It is further stated that the Government instructions cannot supersede, or nullify the statutory rules. The promotion; being regulated by the statutory rules, the respondents cannot be permitted to take refuge under some Government instructions to nullify the Rule and confer undue benefit upon the private respondent. It is further case of the petitioner that the petitioner has not earned any adverse ACRs during his service career as Ayurvedic Medical Officer nor any disciplinary proceedings, enquiry or show-cause notice was issued to him. In the category of Scheduled Castes, the petitioner is much Senior to respondent No. 5 and thus his claim for promotion should not have been ignored under any circumstances. 5. The official and the private respondents have filed their separate replies. While admitting the application of the statutory rules referred to here-in- above, the stand of the private respondent is that wider the government instructions dated 6.9.2001, minimum required benchmark were 12 and thus, the petitioner having failed to achieve the minimum benchmark of 12, he was rightly superseded and private respondent No. 5 has it can promoted strictly in accordance with the Government instructions and the rule of promotion. A copy of the Government instructions issued vide Circular dated 6.9.2001 has also been placed on record as Annexure R-3/2. The relevant extract of the Government instructions, which, inter alia, deals with the promotion to Group "A" is noticed here under :- "For promotion to posts falling in Group "A" other than Head of Departments, the minimum benchmark will be Very Good with at least 12 marks. Amongst those meeting the criteria, there would be no suppression." Thus, it has been urged on behalf of the respondents that on the basis of the aforesaid Government instructions, then private respondent has secured minimum 12 benchmarks whereas the petitioner has secured only 11 benchmarks and as such respondent No. 5 has been rightly and validly promoted ignoring the petitioner. According to the respondents, the expression. "There shall be no suppression on the basis of merit" finding place under Rule 18 (b) of the 1994 Rules has been explained the aforesaid Government instruction which means amongst those meeting the criteria, there would be no supersession. The aforesaid argument of the respondents has been repelled by the petitioner arguing that the Government instructions tend to introduce further conditions in the statutory rules. The aforesaid argument of the respondents has been repelled by the petitioner arguing that the Government instructions tend to introduce further conditions in the statutory rules. 6 The statutory rules i.e. Ayurvedic (Group "A") Service Rules, 2008 clearly provides for promotion to be made on the principle of Seniority-cum-Merit". Petitioners seniority over and above respondent No. 5 is not in dispute. The expression "Seniority-cum-Merit" has been considered and interpreted by various judicial pronouncements. In the case of Haryana State Electricity Development Corpn. Ltd. v. Rameshwar Dass, 2001 (4) S.C.T. 328, it has been held that the junior person cannot be promoted unless something is shown adverse to senior or disciplinary proceedings are pending against him. The seniority cannot be ignored applying the aforesaid principle. It is equally settled proposition of law that once the recruitment is regulated by statutory rules and procedure, the criteria of qualification is prescribed therein and administrative instructions to the extent the statutory rules are altered, modified or made redundant cannot be taken into consideration. Admittedly, there was nothing adverse against the petitioner nor any disciplinary or criminal or other kind of proceedings were pending against him at the time of consideration for his promotion to the post in question. The Government instructions dated 6.9.2001 does not in any manner take away the right of the petitioner for consideration for promotion on the basis, of Seniority-cum- Merit. If the contention of the respondents regarding the so-called benchmark is accepted then it amounts to changing the principle/rule from "Seniority-cum-Merit" to "Merit-cum-Seniority". Such a recourse is it impermissible in law. For the above reasons, this petition is allowed. It is directed that the petitioner be promoted to the post of District Ayurvedic-cum-Unani Officer with effect from the date respondent No. 5 was promoted, with all consequential benefits i.e. seniority, emoluments etc, in the event vacancy in the cadre of District Ayurvedic-cum-Unani Officer is available. However, if no such vacancy is available, the promotion of respondent No. 5 to the post of District Ayurvedic-cum-Unani Officer shall stand cancelled and the petitioner be promoted against the resultant vacancy as the Selection Committee did not find anything adverse against the petitioner, except the non-achievement of the alleged criteria of minimum of 12 benchmarks which is against the principle of "Seniority-cum-Merit". No costs. Petition allowed.