Kulwant Singh vs State

The circumstances under which this petition has come to be filed, be noticed. The petitioner and respondent No.4 were working as Sub

Inspectors in the Excise and Sales Tax Department of the respondent State. Their next promotion is to the post of Inspector. In order to become

eligible for the said post, a candidate, has to pass some departmental examination.

The further fact is that respondent No.4 was promoted. The name of the petitioner was not considered. This was on the ground that the

requisite departmental Examination was not cleared by the petitioner.

It is the case of the respondents that the petitioner cleared the Examination in August, 1990, whereas respondent No.4 qualified and cleared the

Examination in September, 1988. The further stand taken is that the Departmental Promotion Committee met in the month of May 1990. As the

petitioner was not qualified at that point of time, he was not promoted and respondent No.4 came to be promoted. The learned counsel for the

petitioner submits that the very selection which is referred to in the counter filed by the State was subject matter of another writ petition. This writ

petition bears No. 473/1990. This was decided on 20.12.1990 . Although, in the above mentioned writ petition, the challenge was on a different

ground, but the operative portion of the judgement would be relevant for the purposes of this petition also. For facility of reference, this is being

reproduced below :

In the result, therefore, The promotion of respondent No.5 to the post of Inspector vide order dated; 29.5.90, being bad in law and being in

violatern of Articles 14 and 16 of the Constitution of India, is quashed and set aside. Respondents 1 to4 are directed afresh to hold a meeting of

DPC and consider all eligible candidates including the petitioner for promotion to the post of Inspector. The consideration shall be accorded strictly

in accordance with the principles of law and rules applicable on the subject. 5. The writ petition is disposed of accordingly with the aforesaid

directions, alongwith its CMP.

Jammu, Sd/ Hon'ble V.K. GuptaJ.

20121990

A perusal of the judgement given in writ Petition No.473/1990 makes is apparent that a fresh Departmental Promotion Committee was to be

constituted, and all eligible candidates, including the writ petitioner of the above writ petition, was to be considered for promotion to the post of

Inspector. Therefore, the learned counsel for the petitioner is right in his submission that after filing of this petition fresh exercise was not under

taken by the respondents. A Departmental Promotion Committee was constituted. This was in February 1991. The petitioner was not promoted

on the ground that respondent No. l had cleared the Departmental Examination earlier to the petitioner.

It be seen that no rule has been pointed out which may indicate that a person passing a Departmental Examination prior to his seniors, has to

steal a march over them. It may be possible for a particular employee who has passed the Departmental Examination to steal a march over others,

if, at the time of consideration, the other employee is not qualified. If, however, at the time when the Departmental Promotion Committee is

constituted, all candidates are eligible, then merely because one person has passed the Departmental Examination earlier to the other, would not be

ground not to consider that person. This is moreso, when the vacancies come into existence much later. When the vacancies are not available at

the time when Departmental Promotion Committee met, then adhoc promotions were being made.

In this regard, it will be pertinent to mention that the petitioner in the para ""2"" of the petition has taken a stand that vacancies were not available.

To this the reply is that consideration was made visavis the posts which were yet to come in existence. The requisite reply to para ""4"" in this regard

is that a panel was drawn in excess of the vacancies available, in order to avoid the delay.

I am of the opinion, that this course cannot be adopted too. This operated to the detriment of the petitioner. In this view of the matter, this

petition is allowed. The respondents would consider the name of the petitioner and give promotion in accordance with law. He would be entitled to

all consequential benefits with effect from the date they have been given to his junior.

Disposed of accordingly.