Ashok Kumar vs State of Haryan and Others

Mahesh Grover, J.—The petitioner by virtue of the instant petition prays for the issuance of a writ in the nature of certiorari for quashing the order dated 3.4.1991 (Annexure P-4) by which respondents 3 and 4 were promoted as Assistants ignoring the claim of the petitioner who claims that he was senior to the said respondents. With the efflux of time, however, it may not be necessary for this Court to examine the question of negating this annexure altogether, since respondents No. 3 has since retired and respondent No. 4 is on the verge of retirement and the petitioner has also been promoted with effect from 3.11.1993. The only surviving claim therefore, is regarding the benefit of promotion being given to the petitioner as an Assistant with effect from the date when his juniors were promoted.

The petitioner was appointed as a Clerk in the Directorate of Agriculture, Haryana with effect from 14.7.1988 initially on temporary basis. The Directorate of Agriculture was bifurcated into two wings, the break-away Department being the Directorate of Horticulture. In 1990, some of the employees including the petitioner were transferred to the Department of Horticulture.

In March, 1991, the Directorate of Horticulture fixed the seniority of the Clerks working in the Horticulture Department and the petitioner was placed senior to respondents 3 and 4.

The next post for promotion from the post of Clerk was that of an Assistant and as per rules governing the promotion, the promotion was to be made from amongst senior clerks in their respective office who have proved their fitness for appointment to the post. For the purpose of reference, the relevant portion of the rule is extracted here below:-

By promotion from amongst senior clerk in their respective office who have proved their fitness for appointment to the post.

By virtue of the impugned order dated 3.4.1991, three persons were promoted, two of whom have been arrayed as respondents No. 3 and 4 and against whom the grievance of the petitioner is directed, that their promotion is in supersession of the petitioner who was senior, and is hence unsustainable.

Respondents No. 3 and 4 have justified their promotion to say that they were senior to the petitioner as would be evident from the reply submitted by the official respondents wherein the comparison of the experience and the dates of appointment as Clerk have been indicated. According to them, the petitioner was appointed on 1.8.1988 whereas Subhash Chander Piplani (respondent No. 3) entered service on 1.6.1974 and Ram Saroop (respondent No. 4) on 21.8.1981 and thus they were senior to the petitioner.

This stand of the respondents is absolutely erroneous, if one were to examine their absorption in the service of the Directorate. This is essential to understand that the seniority of field officers and the ones working in the Directorate are undisputedly being maintained separately. Besides, Annexure P-3 which indicates the seniority of the petitioner vis-�-vis the private respondents, has not been questioned either by the private respondents or the State who has candidly admitted this seniority and even obliquely admitted that the petitioner was superseded in the language adopted in the reply.

There is thus, a little ambiguity on the question of seniority of the petitioner and therefore, the only question surviving is as to whether the petitioner was entitled to be promoted on the date when respondents 3 and 4 stole a march over him.

This Court has examined the justification offered by the State in ignoring the claim of the petitioner which has been stated to be his lack of requisite experience of 5 years. Evidently, respondents'' justification on this score is based on the instructions/circular issued by the official respondents themselves introducing the element of experience of 5 years as a Clerk for being considered for promotion to the post of Assistant. The relevant portion of the instructions dated 8.2.1979 is extracted here below:-

(1) Sanction to the upgrading of the offices will be effective from the date of issue of this order.

(2) The staff appointed at present will be entitled ''A'' Class scales of pay and their pay in the new grades will be fixed according to rules.

(3) The staff to be recruited in future against post which have been upgraded will be entitled to ''A'' Class scales of pay, provided they fulfill the qualifications laid down for these posts in ''A Class'' offices. The relevant rules should be amended for this purpose, if necessary.

A bare perusal of the aforesaid would indicate that the State was conscious of its limitations in injecting these conditions without amendment of the rules whose prescription was contrary to the intended instructions.

No such amendment had been made when the case of petitioner became due for consideration. This fact has been ascertained after the records were requisitioned.

In this view of the matter, this Court is of the opinion that such an insistence on the part of the respondents of having 5 years experience as a Clerk cannot be legitimately construed to come in the way of his being promoted as an Assistant as mere instructions could not over-ride the provisions of the rules.

Resultantly, the action of the respondent/state in ignoring the claim of the petitioner for promotion to the post of Assistants in the year 1991 when his juniors were promoted, is held to be unsustainable and it is held that the petitioner is entitled to be promoted with effect from 3.4.1991 when his juniors were promoted.

Since the petitioner has been promoted since 1993, he would be entitled to the notional benefits with effect from 3.4.1991 till the date when he was actually promoted. The petition stands allowed in the aforesaid terms.