Nalinder Singh vs Punjab Mandi Board and Others

Rakesh Kumar Garg, J.—As per the averments made in this writ petition, the petitioner was appointed as a Junior Engineer (Mechanical) with the respondent- Board on 01.12.1992 vide Annexure P-1. His services were further regularized on 19.12.1994. At the time of his appointment, the petitioner was a Diploma holder. During his service, in the year 1997 he acquired the qualification of Associate Member in the Institute of Mechanical Engineers (AMIE). The service conditions of the petitioner are governed by the Rules known as ''The Punjab State Agricultural Marketing Board (Class-II) Service Rules, 1988'' (hereinafter referred to as, ''the Rules''). According to the said Rules, the next promotional avenue from the post of Junior Engineer (Mechanical) is to the post of Assistant Engineer (Mechanical). As per Appendix ''A'' of the Rules, there exist three posts of Assistant Engineer (Planning and Mechanical) in the pay-scale of Rs. 940-1850. Further Appendix ''B'' of the Rules provides for the method of recruitment to the relevant posts. A perusal of Appendix ''B'' reveals that for promotion to the post of Assistant Engineer (Mechanical), a Junior Engineer (Mechanical), who is a Diploma holder, must have an experience of 10 years or a Junior Engineer (Mechanical), who is AMIE Degree holder, must have an experience of 5 years. Thus, according to the petitioner, he was eligible for promotion to the post of Assistant Engineer (Mechanical) on 01.12.1997 when he acquired the qualification of AMIE and was also having the requisite experience.

It is the further case of the petitioner that vide Annexure P-4 dated 30.07.1990, a Notification was issued whereby an amendment was made in Appendix ''B'' of the Rules modifying the post at Sr. No. 5 to Assistant Engineer (Mechanical) from the earlier post of Assistant Engineer (Planning and Mechanical) and the post of Assistant Engineer (Planning) was reallocated at Sr. No. 3 i.e. SDO. Thus according to the petitioner, by omitting the word ''Planning'' the said post was rendered for Mechanical field only.

It is his further case that in the tentative seniority list of Junior Engineers (Mechanical) issued on 08.10.2001, the petitioner is at Sr. No. 4. One Amarjit Singh who is at Sr. No. 1 of the said list stands promoted to the first post of Assistant Engineer (Mechanical), whereas the Junior Engineer at Sr. No. 2 namely Sukhwinder Singh stands retired and Iqbal Singh who is at Sr. No. 3 is a Diploma holder. Therefore, for one post of Assistant Engineer (Mechanical), which is lying vacant in the promotion quota, the petitioner has the first right as he became eligible for promotion to the said post on 01.12.1997 when he acquired AMIE qualification and also had an experience of five years. However, the petitioner who is eligible to be promoted is being denied his right of promotion on one pretext or the other.

It is the further case of the petitioner that vide orders (Annexures P-6 to P-10) the right of promotion of the petitioner has been denied on the wrong premises, (i.e. there exists only one post of Assistant Engineer (Mechanical) to which Amarjit Singh stands promoted).

It is his further case that under Right To Information Act, he got detailed information and thereafter he represented to the respondents for re-consideration of his case vide representation dated 06.10.2010 but the same was rejected by passing a totally non-speaking order dated 26.10.2010.

To show that there exist more than one post of Assistant Engineer (Mechanical), the petitioner has also placed on record the approved budget (Annexure P-12) of the respondent-Board which clearly shows that three posts of Assistant Engineer (Mechanical) are approved and sanctioned.

It is the specific case of the petitioner that there is no amendment to the Rules and thus, the petitioner being eligible deserves to be promoted to the post of Assistant Engineer (Mechanical), which is lying vacant.

On the basis of the aforesaid facts, the petitioner has filed the instant writ petition challenging the orders (Annexures P-6 to P-11), whereby his claim for promotion has been rejected by the respondents; with a further prayer to issue directions to the respondents to consider and promote him to the post of Assistant Engineer (Mechanical), he being the senior most AMIE qualified Junior Engineer.

The writ petition has been contested by the respondents by filing written statement on behalf of respondents No. 1 to 3. A specific stand has been taken in the written statement that there exists only one post of Assistant Engineer (Mechanical) and the three posts which were earlier mentioned collectively for Planning, Civil and Mechanical; were bifurcated and two posts were earmarked for Planning and Civil and only one post was meant for Assistant Engineer (Mechanical) against which Amarjit Singh, who was senior to the petitioner, is working since 28.08.1996 and since the only post of Assistant Engineer (Mechanical) is already occupied, there remains no vacancy against which the petitioner can have any legitimate right. Moreover, no employee junior to the petitioner on the Mechanical side has been promoted. In the written statement, a further defence has been taken that under the Rules, as amended, two posts have been earmarked for Planning side out of the three, which were initially mentioned jointly against Assistant Engineer (Planning and Mechanical) and one post was kept for Mechanical side.

The respondents have taken a further defence that there was only one Sub Divisional Officer on the Mechanical side and as per the PWD norms there are only four posts of Junior Engineer (Mechanical); whereas on the Planning side for the post of Assistant Engineer (Planning) two posts were prescribed. It is their further stand that as per Notification dated 30.07.1990, an amendment was made in the Rules and the word ''Planning'' was deleted solely with the object that against the post of Sub Divisional Officer (Planning), the employees possessing qualification of Mechanical could not be promoted. The reason behind adding the post of Planning at Sr. No. 3 was that there were two posts of Civil and Planning and only one post remains in the Mechanical and this does not in any way had the effect of increasing the posts of Assistant Engineer (Mechanical) from the solitary post to three, as claimed by the petitioner.

The petitioner has also filed replication to the written statement controverting the stand taken by the respondents and reiterating that the respondents are misinterpreting the Rules and in fact three posts of Assistant Engineer (Mechanical) exist which are sanctioned posts and the petitioner has a right to be considered and promoted against the sanctioned post which is lying vacant and the respondents are under an obligation to fill up the same. It has also been stated that the Rules have the statutory force and are to be followed by their simple interpretation and nothing extra can be added thereto.

I have heard learned counsel for the parties and perused the pleadings as well as the documents placed before this Court.

From the facts, as narrated above, it is not in dispute that the petitioner was appointed as Junior Engineer (Mechanical) on 01.12.1992 and his services were regularized on 19.12.1994 and further that he acquired the qualification of AMIE during his service. It is further not in dispute that the Rules known as "The Punjab State Agricultural Marketing Board (Class-II) Service Rules, 1988'' are applicable for the purpose of making promotion from the post of Junior Engineer (Mechanical) to that of Assistant Engineer (Mechanical). It is also not disputed that there is no amendment to the Rules and according to Appendix ''A'' of the Rules, there exist three posts of Assistant Engineer (Mechanical) and the petitioner is the senior most Junior Engineer (Mechanical) and is eligible for promotion. It is further not in dispute that one person namely Amarjit Singh was promoted against the post of Assistant Engineer (Mechanical).

Keeping in view the aforesaid admitted position of facts, this Court had passed the following order on 12.03.2013:

During the course of arguments, learned counsel representing Punjab Mandi Board could not dispute the fact that as per Appendix ''A'' of the Rules applicable to the case in hand, there are three posts of Assistant Engineer (Mechanical) and petitioner is the senior most Junior Engineer (Mechanical) and is eligible to be promoted.

It is further not in dispute that only one person namely Amarjit Singh was promoted against the post of Assistant Engineer (Mechanical).

Keeping in view the aforesaid facts, learned counsel for the respondents seeks short adjournment to enable him to get instructions.

List on 1st April, 2013.

To be shown in the Urgent List.

However, on 05.04.2013, learned counsel for the respondent-Board had sought further time to take instructions and the case was adjourned to 08.04.2013 by passing the following order:

Counsel for the respondent-Board seeks further time. However, counsel for the petitioner has stated that the adjournment is being sought by the respondent-Board as the respondent-Board has submitted the case to the Government for amendment in the Rules in order to defeat the rights of the petitioner.

The apprehension of the petitioner seems to be without any basis, as if any amendment is made, the same cannot be made applicable to the petitioner retrospectively.

List on 8.4.2013.

On 08.04.2013, it was stated on behalf of the respondents that the case be decided on merits, thus the arguments were heard and judgment was reserved.

At this stage, a reference be made to the relevant Rules. Appendix ''A'' of the Rules provides for the number of posts for each cadre. The relevant extract of Appendix ''A'' is reproduced herein below:

Further Appendix ''B'' of the Rules provides for the method of recruitment to the relevant posts. The relevant extract of Appendix ''B'' is reproduced herein below:

Qualification for recruitment

Relevant part of the Notification dated 30.07.1990 (Annexure P-4) reads thus:

(6) against Serial No. 5-

(a) under column 2, for the existing entry, the following entry shall be substituted, namely: -

Assistant Engineer (Mechanical);

(b) under column 3, for the existing entry the following entries shall be substituted, namely:--

(i) By direct appointment; and

(ii) By promotion;

(c) under column 4, the following shall be inserted namely:--

(i) should possess Degree in Engineering (Mechanical) or should be an Associate Member of Institute of Engineering (Mechanical) of a recognized University or Institute; and

(ii) should possess knowledge of Punjabi upto Matriculation standard;

(d) under column 5, the following shall be inserted namely:--

From amongst the Junior Engineers (Mechanical) working in the Board who possess Diploma in Engineering (Mechanical) of a recognized University or Institute and who have an experience of working as such for a minimum period of ten years; or from amongst the Junior Engineers (Mechanical) working in the Board who are Associate Members of Institute of Engineering (Mechanical) or a recognized University or Institute and who have an experience of working as such for a minimum of five years.

(e) under column 6 after the words ''Government of Punjab'' the words ''or State Government Undertakings'' shall be added.

A conjoint reading of Appendix ''A'' and ''B'' of the Rules in conjunction with the aforesaid Notification leaves no room that the cadre of Assistant Engineer (Mechanical) has three posts out of which two fall to the quota of promotees and one to the share of direct recruits.

It is further not in dispute that the aforesaid Rules have not been amended till date. The above position of facts is being contested by the respondent-Board on the ground that due to an inadvertent mistake at some level while the budget for the year 1990-91 was passed the word ''Planning'' disappeared and only word ''Mechanical'' remained there, and in fact, there is only one post of Assistant Engineer (Mechanical).

To support his argument, learned counsel for the respondent-Board has vehemently argued that initially in the Service Rules, the post of Assistant Engineer (Mechanical) and Assistant Engineer (Planning) were clubbed together in both the Appendix ''A'' and Appendix ''B'' and total posts were shown as 3. Since planning was part of the Civil side and qualification for Planning side was also prescribed as on the civil side, it was decided to amend the Rules and for the said purpose and Notification dated 30.07.1990 was issued with an avowed object of separation of the cadres. Attributed to the poor draftsmanship of the concerned officials, in Appendix ''B'' of the Service Rules, the posts of Assistant Engineer (Mechanical) and Assistant Engineer (Planning) were segregated as qualifications for both ''direct recruitment'' as well as ''promotion'' were different but due to an oversight requisite amendment in the corresponding Appendix ''A'' could not be carried out. The respondents No. 1 to 3 have repeatedly approached the State Government for amendment of the Rules and the matter has now been finalized and is at present pending with the Hon''ble Chief Minister, who holds the charge of Agriculture Department.

It is further submitted by the counsel that it has been demonstrated in the written statement that as per norms, there is a provision of only one Assistant Engineer in every Department for four Junior Engineers and stand of respondents No. 1 to 3 that there are only four posts of Junior Engineer (Mechanical) has not been controverted by the petitioner, which clearly implies that there is only one post of Assistant Engineer (Mechanical). Copy of the norms supplied by PWD (B&R Branch), which are also to the same effect, is on record as Annexure P-3 (Page 96). The draft Notification (Annexure P-2) also demonstrates that two posts out of the three mentioned at Sr. No. 5 are proposed to be clubbed with cadre of Civil at Sr. No. 3.

However, learned counsel for the respondent-Board could not substantiate his argument, as raised, by showing any amendment to the Rules, as noticed above. Rather during the course of arguments, it has been admitted by the respondent-Board that the State Government has been approached repeatedly for amendment of the Rules and the same has not been carried out till date.

Thus, this Court is of the considered view that as per the Rules, existing today, there exist three sanctioned posts of Assistant Engineer (Mechanical) out of which two posts are meant for promotion quota from amongst the Junior Engineers (Mechanical) and further that the petitioner is duly eligible for being considered for one of the posts under promotion quota which is apparently lying vacant.

Faced with this situation, learned counsel for the respondent-Board has sought to contest the claim of the petitioner on the ground that promotion cannot be claimed as a matter of right and simply because a vacancy is available in the promotion quota, that itself will not give a right to the petitioner for consideration of his claim for promotion as no person junior to him has been promoted.

There is no dispute with the aforesaid proposition of law, as argued by learned counsel for the respondent-Board; however, in the instant case, the petitioner is being denied promotion on the ground that there exists only one post of Assistant Engineer (Mechanical) under the promotion quota, against which one Amarjit Singh is already working, and therefore, claim of the petitioner cannot be considered.

The aforesaid defence taken is absolutely based on incorrect premises in view of the conclusions arrived at by the Court, as the petitioner cannot be denied his claim for consideration of promotion on the ground of non-availability of a vacancy. In these circumstances, this writ petition is allowed, holding that the claim of the petitioner for promotion cannot be denied on the ground of non-availability of a vacancy as there exists a vacancy in promotional quota to the post of Assistant Engineer (Mechanical), as noticed in the foregoing paragraphs of the judgment.