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2009 DIGILAW 1596 (PNJ)

Geeta Devi v. State Of Haryana

2009-09-09

JASWANT SINGH, M.M.KUMAR

body2009
Judgment M.M.Kumar, J. 1. On 3.7.2009, this Court has allowed C.W.P. No. 21663 of 2008 filed by the non-applicant-petitioner Smt. Gita Devi and the promotion on the post of Head of the Department, Mathematics, granted to the applicant respondent No. 3 Smt. Benu Bajaj was set aside. As a consequence, a direction was issued to the official respondents to reconsider the case of the non- applicant petitioner by treating her eligible as she fulfilled the conditions of 12 years experience of working on the post of Lecturer and Senior Lecturer provided in Column 4 of Appendix "B" attached to Rule 7 of the Haryana Technical Education Department (Group A) Service Rules, 1986 (for brevity, `the `Rules). The aforesaid order was based on two principles laid down by Honble the Supreme Court, namely, that a vacancy which has arisen before amendment of the rules should be filled up in accordance with the un-amended rules and the term `experience would also include experience gained while working on ad hoc basis. The amendment in the present case was made in the Rules on 11.11.2008. Earlier to amendment, Rule 7 read with Appendix `B Column 4 had laid down 12 years experience as Lecturer in Applied Sciences out of which two years should be as Senior Lecturer. By amendment the term `experience was sought to be explained by adding an explanation under Column 4. Accordingly, explanation defined the `experience to mean service rendered in the Department of Technical Education, Haryana after regular appointment on the post. As a result of the aforesaid amendment the nonapplicant- petitioner was sought to be non-suited and was not considered because her experience over 7 years as Lecturer in Mathematics gained by working on ad hoc basis at Government Polytechnic College, Sonepat from 24.8.1995 to 11.11.2002 was not taken into account. Her further experience of one year and four months while working on ad hoc basis in Ch. Devi Lal Memorial Engineering College, Panniwala Mota, Sirsa, was also not taken into account. Her further experience of one year and four months while working on ad hoc basis in Ch. Devi Lal Memorial Engineering College, Panniwala Mota, Sirsa, was also not taken into account. As the vacancy had arisen in May 2007 and the post was filled up on 22.12.2008 (R-2) by promoting the applicant-respondent No. 3, who was otherwise junior to the non-applicant-petitioner in the rank of Senior Lecturer, this Court held that the old vacancy of Head of Department, Mathematics should have been filled in accordance with the old rule which have used the expression `experience without any further requirement of nature of service etc. Even on the second question it was held that service rendered on ad hoc basis would become relevant for the purposes of satisfying the requirement of experience. The aforesaid judgment passed by the Division Bench was challenged in SLP, which was dismissed and the following order was passed :- "We have heard learned counsel for the petitioner and learned counsel for the caveator. Mr. Patwalia, the learned senior counsel, has first and foremost argued that even taking the case of the respondent at its very best, she was not eligible for promotion to the post of Head of the Department as she has become eligible for the first time in June, 2008, whereas the vacancy had occurred in May, 2007. We find that this matter had not been argued before the High Court. On this, Mr. Patwalia, prays that the special leave petition be dismissed as withdrawn at this stage with liberty to raise this matter before the High Court in review. Accordingly, the special leave petition is dismissed as withdrawn. 2. In pursuance of the aforesaid order of Honble the Supreme Court the instant review application has been filed. It has been argued that the vacancy had arisen on 9.5.2007 i.e. prior to amendment of Rules and the applicant- respondent No. 3 made a representation on 8.6.2007 seeking her promotion to the post of Head of the Department when the non-applicantpetitioner was not even eligible as per the un-amended Rule. According to the applicant- respondent No. 3 the non-applicant-petitioner became eligible only on 2.6.2008 on acquiring 12 years experience as Lecturer in Applied Sciences out of which two years was of Senior Lecturer, whereas the applicant-respondent No. 3 became eligible on 9.5.2007 as per the unamended Rule. According to the applicant- respondent No. 3 the non-applicant-petitioner became eligible only on 2.6.2008 on acquiring 12 years experience as Lecturer in Applied Sciences out of which two years was of Senior Lecturer, whereas the applicant-respondent No. 3 became eligible on 9.5.2007 as per the unamended Rule. The argument raised by accepting the principle that old vacancy is to be filled up as per old Rules, is that on the date of occurrence of vacancy the non-applicant-petitioner was not eligible and the vacancy should have been filled up by determining the eligibility on the date of occurrence of vacancy, which is 9.5.2007. In support of his submission, learned counsel for the applicant-respondent No. 3 has placed reliance on para 33 of the Full Bench judgment of this Court rendered in the case of Punjab State Electricity Board, Patiala v. Ashok Kumar Sehgal, AIR 1990 P.&H. 117, and argued that the eligibility has to be determined by reference to the date of occurrence of vacancy and not to the date of filling up the vacancy. In other words, date of acquisition of eligibility is the dominant determining factor. According to the learned counsel, if vacancy is not filled up by taking into account those persons who were eligible on the date of occurrence of vacancy, it may lead to undesirable results like breeding of manipulation, calculation and caprice. 3. Having heard learned counsel for the applicant-respondent No. 3, we find that there is no rule of law to the effect that eligibility of an employee for promotion has to be determined by confining it to the date of occurrence of vacancy. The Full Bench judgment in Ashok Kumar Sehgals case (supra) firstly does not lay down any principle of general application that the date of occurrence of vacancy is the crucial date for determining eligibility for promotion. We feel that no such principle of general application could be laid down or has been laid down by the Full Bench because in all cases delay in filling up of vacancy may not be because of manipulation, malice or caprice. There may be umpteen number of reasons for the State to proceed with the process of promotion for example the Public Service Commission, which is to approve the appointment may not be available or there may be financial stringency. There may be umpteen number of reasons for the State to proceed with the process of promotion for example the Public Service Commission, which is to approve the appointment may not be available or there may be financial stringency. To lay down it as a principle of law that eligibility has to be determined by referring to the date of vacancy, would curb the right of those who may be senior and become eligible later on than their junior as is the situation in the present case. 4. Moreover, the judgment of the Full Bench in Ashok Kumar Sehgals case (supra) was based on the judgment of Honble the Supreme Court rendered in the case of Punjab State Electricity Board, Patiala v. Ravinder Kumar Sharma, (1986) 4 SCC 617. The Full Bench has attempted to implement the aforesaid judgment on a reference having been made by the Letter Patent Bench. However, the judgment of Honble the Supreme Court in Ravinder Kumar Sharmas case (supra) itself stand overruled in the case of P. Murugesan v. State of Tamil Nadu, 1993(2) S.C.T. 416 : (1993) 2 SCC 340. It may be pertinent to mention that in Ravinder Kumar Sharmas case (supra), for promotion to the post of Line Superintendent the rule had provided quota for different categories of Linemen based on educational qualifications, from a common seniority list of Lineman and it was in that context it was observed that date on which promotional post fell vacant was relevant. The aforesaid rule was declared ultra-vires of Article 14 and 16(1) of the Constitution. Moreover, those observations were made in the context of settling promotions which have already been made by adjusting those Linemen who did not have educational qualifications and had become eligible on account of judgment of Honble the Supreme Court. 5. However, in P. Murugesans case (supra) the aforesaid view was overruled by a larger bench of 3-Judges by holding that distinction based on educational qualification for further promotion is permissible since the judgment of the Constitution Bench in the case of State of Jammu Kashmir v. Triloki Nath Khosa, (1974) 1 SCC 19 and accordingly the judgment of the Full Bench in Ashok Kumar Sehgals case (supra), which sought to implement the judgment in Ravinder Kumar Sharmas case (supra) cannot remain un-affected by the aforesaid view taken by Honble the Supreme Court. Therefore, the argument raised based on that judgment by the applicant-respondent No. 3 has no substance and the same is liable to be rejected. 6. We further find that it was not the case of the respondent State that the eligibility has to be determined by reference to the date of occurrence of a vacancy. The only issue raised by the respondent State in their written statement was that the vacancy could be filled in accordance with the amended rule, which require gaining of experience while working on the post of Lecturer/Senior Lecturer on regular basis in the respondent department. The non-applicant-petitioner was non-suited on that basis. Therefore, the whole case hinged on the aforesaid proposition. We are of the view that no ground for review is made out. Accordingly, the review application fails and the same is dismissed.