Lal Chand Singla vs State of Punjab

M.L. Singhal, J.—Lal Chand Singla joined as Clerk in the Excise and Taxation Department of the State of Punjab in the year 1965. Karnail Singh defendant also joined as Clerk in the Excise and Taxation Department of the State of Punjab. At the time of appointment as clerk, Lal Chand Singla was senior to Karnail Singh defendant. Prior to joining the service of the Punjab Lal Chand Singla was in Army. He was in Army from 6.1.1963 to 16.7.1964 i.e. during the period when of the proclamation of national emergency was still in operation. Grievance of Lal Chand Singla was that when he joined the service of the Punjab he was not given the benefit of army service though the benefit of army service should have been given to him. Benefit of army service was not given to him despite repealed representations. In the year 1976, Karnail Singh defendant was promoted to the post of Accountant in disregard of the claim of Lal Chand Singla plaintiff though he was senior to him. Later on, Karnail Singh defendant was reverted to the post of Clerk but was again promoted in the year 1983 through order dated 15.9.1983. He was not promoted though he was senior to Karnail Singh defendant and was also fulfilling the qualifications required for the post of Accountant. Vide order dated 17.12.1987, Karnail Singh defendant was promoted to the post of Excise and Taxation Officer again in disregard of the claim of Lal Chand Singla. On these allegations, Lal Chand Singla filed suit for declaration whereby he challenged the orders of the Punjab dated 25.6.19786, 15.9.1983 and 17.12.1987 whereby he was ignored for promotion though he was ahead of Karnail Singh defendant in the ladder of seniority. Plaintiff asked for mandatory injunction also directing the State of Punjab to treat him to have been promoted as Accountant/Excise and Taxation Officer from the date Karnail Singh was promoted and further to grant him all benefits, privileges and arrears of salary and allowances etc. with compound interest at the market rate.

Defendants contested the suit of the plaintiff. It was urged that the plaintiff could not be promoted over the head of Karnail Singh defendant to the post of Accountant as for promotion to the post of Accountant, a clerk is required essentially to be a Graduate. In the year 1976 when Karnail Singh defendant was promoted, plaintiff was not a graduate. Karnail Singh defendant was reverted to the post of Clerk for want of vacancy. In the year 1983, Karnail Singh defendant was promoted to the post of Accountant in preference to Lal Chand Singla as he had worked previously on the post of Accountant. Karnail Singh defendant was promoted as Excise and Taxation Officer in the year 1987 over the head of plaintiff as the plaintiff had lagged behind him when the latter was promoted to the post of Accountant and also in the year 1987, Lal Chand Singla had not put in five years on the post of Accountant.

On the pleadings of the parties, the following issues were framed :-

Whether the orders dated 25.6.1976, 15.9.1983, 17.12.1987 passed by defendants 1 to 3 promoting defendant No. 4 are illegal, null and void, unconstitutional ?OPP

Whether the plaintiff is entitled to the declaration prayed for ? OPP

Whether the plaintiff is entitled to the mandatory injunction prayed for ? OPP

Whether the suit is premature ? OPD

Whether this court has jurisdiction to try the suit ? OPP

Whether valid notice u/s 80 CPC served before filing this suit ? OPD

Relief.

Vide order dated 13.12.1993, plaintiffs suit was decreed for declaration by Additional Senior Sub Judge, Patiala to the effect that he was entitled to be promoted as Accountant from 15.9.1983 and further was required to be considered for promotion to the post of Excise and Taxation Officer after he had acquired 5 years experience from the deemed date of promotion as Accountant, in view of his finding, that on 25.6.1976, plaintiff did not have the requisite qualification for the post of Accountant and as such he was not considered and instead Karnail Singh defendant who was graduate was considered and promoted as Accountant and further on 15.9.1983, the plaintiff should have been given preference for promotion to the post of Accountant as he was then a graduate fulfilling the requisite qualifications and on 15.9.1983 the plaintiff was a clerk, Karnail Singh defendant was also a clerk having been reverted from the post of Accountant to clerk. It was also found that the plaintiff was en- titled to be considered for promotion earlier to Karnail Singh defendant to the post of Excise and Taxation Officer as he was senior to the latter in view of his deemed promotion to the post of Accountant.

Not satisfied with the order of Additional Senior Sub Judge, Patiala dated 13.12.1993, Karnail Singh defendant went in appeal (Civil Appeal No. 147-T/98 of 26.2.1994). State of Punjab also went in appeal (Civil Appeal No. 398-T/17.2.1994). Both the appeals were allowed by Additional District Judge, Patiala and in consequence, the judgment/decree of Additional Senior Sub Judge, Patiala was set aside and the plaintiffs suit was dismissed.

Not satisfied with the order of Additional District Judge, Patiala, plaintiff has come up to this court through RSA Nos. 3493 of 1999 and 3494 of 1999.

In both the appeals, I have heard the learned Counsel for the appellant and the learned Counsel for the respondent and have gone through the record.

It was submitted by the learned Counsel for the appellant that it is admitted position that the appellant Lal Chand Singla was senior to respondent Karnail Singh as clerk. It is also admitted position that in the year 1976, appellant was not eligible for promotion to the post of Accountant as he was not a graduate while Karnail Singh respondent was eligible as he was graduate. Karnail Singh respondent was accordingly promoted over the head of Lal Chand Singla appellant in the year 1976. It was submitted by the learned Counsel for the appellant that the promotion of Karnail Singh respondent to the post of Accountant became inconsequential when prior to 15.9.1983, he became reverted to the post of clerk and as on 15.9.1983, Lal Chand Singla was a clerk and so was Karnail Singh. Lal Chand Singla was also graduate; he having graduated in the year 1980, Lal Chand Singla should have been promoted to the post of Accountant over the head of Kar nail Singh defendant as on 15.9.1983. It was submitted that the promotion of Karnail Singh respondent earlier to the post of Accountant became inconsequential when he was reverted and as on 15.9.1983, both of them were clerks and both of them were fulfilling the requisite qualifications for promotion to the post of Accountant and as Lal Chand Singla was senior to Karnail Singh defendant, Lal Chand Singla should have been given edge.

Learned counsel for the respondent, on the other hand, drew my attention to Bachittar Singh Grewal and another v. State of Punjab 1973(1) SLR 863 where it was held that where a junior officer was promoted in super session of senior but was reverted some time after for want of vacancy, junior officer would gain seniority over the senor officer despite reversion for future promotion.

On 25.6.1976, Karnail Singh was promoted to the post of Accountant over the head of Karnail Singh as the latter was not a graduate. Graduation was essential qualification for promotion to the post of Accountant. For want of vacancy, Kamail Singh defendant was subsequently reverted to the post of clerk. On 15.9.1983, when post of Accountant became available through promotion, Lal Chand Singla became at par with Karnail Singh defendant as both of them were graduates fulfilling the essential qualifications. Learned counsel for the respondent submitted that though Lal Chand Singia was senior to Karnail Singh respondent, Karnail Singh respondent was promoted to the post of Accountant on 15.9.1983 as he had experience on the post of Accountant. Learned counsel for the appellant, on the other hand, submitted that experience was of no consequence when on 15.9.1983, both of them were clerks and were to be considered for promotion to the post of Accountant and as Lal Chand Singla was senior to Karnail Singh respondent, he should have been given an edge over Karnail Singh respondent. Lal Chand Singla was not superseded on earlier occasion. He was not promoted because he was not a graduate. He could be said to have been superseded if he had the essential qualifications but was found less meritorious vis-a-vis Karnail Singh respondent on the evaluation of their respective service record.

Learned Counsel for the respondent submitted that Lal Chand Singla had no right to question his non-promotion as on 15.9.1983, in the year 1989, when it had become time barred. It was also submitted that in Dr. Uma Kant Saran v. State of Bihar and others 1973(1) SLR 204, the Hon''ble Supreme Court observed that an employee not possessing requisite qualification for promotion/appointment to the higher post, has no right to question the validity of promotion of junior possessing requisite qualification.

It is true that Lal Chand Singla had no right to question the promotion of Karnail Singh defendant effected through order dated 25.6.19786. He could question his promotion effected through order dated 15.9.1983 as his promotion on the previous occasion became inconsequential due to his reversion to the post of clerk due to the non-availability of the post of Accountant. Plaintiff, thus, shall be deemed to have been promoted with effect from 15.9.1983, provided on consideration of his service record, he was fit to be promoted as Accountant with effect from 15.9.1983. On 17.12.1987, he was not entitled to be promoted to the post of Excise and Taxation Officer as he did not have 5 years experience as Accountant as on 17.12.1987, he shall be deemed to have 4-1/4 years notional experience on the post of Accountant.

Question of limitation is not involved as each day gave a fresh cause of action to Lal Chand Singla io question his non-promotion to the post of Accountant as promotion was given to Karnail Singh on 15.9.1983.

In the result, the plaintiffs suit is decreed for declaration to the effect that he shall be considered for promotion to the post of Accountant as on 15.9.1983 and he will be promoted to the post of Accountant over the head of Karnail provided he was found fit for promotion on the evaluation of his service record. He shall be deemed to have been promoted to the post of Excise and Taxation Officer after he had put in 5 years experience as Accountant with effect from that date depending upon the availability of vacancy. As and when the vacancy became available and he fulfilled 5 years experience on the post of Accountant, he shall be deemed to have been promoted as Excise and Taxation Officer provided on the evaluation of his service record by the appointing authority he was found so fit. Plaintiff''s pay shall be refixed consequentially and arrears if any shall be disbursed to him with interest @ 12% per annum. If he has retired, his pensionary benefits shall be redetermined and his pension shall be re-fixed and the arrears shall be disbursed to him with interest @ 12% per annum. This exercise shall be completed within six months of copy of receipt of this order.

As Karnail Singh respondent had been working all through on the post of Accountant with effect from 15.9.1983 and then on the post of Excise and Taxation Officer with effect from 17.12.1987 and he has drawn the emoluments admissible to him against thee posts, he shall not be called upon to make any refund. Appeals are allowed to this extent.

Appeals allowed.