R.K. Madan vs State of Punjab

J.S. Narang, J.—The petitioners joined as Inspectors of Factories prior to the date of joining of respondent No. 2 i.e. Karam Singh. In the seniority list of Inspectors both the petitioners have been shown senior to respondent No. 2 as per copy of seniority list of Inspectors appended as Annexure P1.

Respondent No. 2 belongs to the reserved category and that in the year 1989 two posts of Inspectors were re-designated by upgradation and have been defined as Deputy Directors. Respondent No. 2 was appointed/promoted to the post of the Deputy Director on the basis of the principle of reservation in preference to the petitioners. Petitioner No. 1 challenged the appointment of respondent No. 2 vide CWP No. 1909 of 1989 and that the same was dismissed in limine. However, subsequently both the petitioners earned promotion/appointment to the post of Deputy Director. Thereafter they earned appointment/promotion to the post of Joint Directors of Factories. It shall be apposite to notice the respective dates of appointments of petitioners No. 1 and 2 and respondent No. 2 which are stated as under :-

Post

Petitioner No.1

PetitionerNo. 2

Respondent No.2

Inspector

3.6.1971

7.6.1971

12.7.1971

Deputy Director

10.5.1991 vide order dated 3.7.1991

10.5.1991 vide order dt. 3.7.91

10.7.1989

Joint Director

11.7.1991 vide order dt. 22.11.1991

11-7,1991 vide order dt. 22.11.91

10.5.1991 vide order dt 12.7.91

It is the admitted case of the parties that the post of Joint Director of Factories is not governed by any statutory service rules. Thus, in the absence of the same, respondent No. 2 has been taken as senior to both the petitioners on the principle that he had joined the post of Joint Director prior to the petitioners.

On September 30, 1993, the post of Additional Director Factories fell vacant. It is averred that the State of Punjab had issued instructions from time to time regarding the procedure to be followed while filling the selection posts. Since the post of Additional Director Factories was required to be filled in by way of selection, it was incumbent upon the State to have drawn the list of eligible officials out of which the suitable candidate for promotion should have been identified and promoted accordingly. It is also averred that vide instructions dated November 23, 1990, the Departmental Promotion Committee (DPC) was required to be set up and that the appointment by promotion to the said post was to be made by selection on merit tempered with seniority, but no person could stake his claim for promotion to the said post oh the basis of seniority alone. These instructions had been followed earlier while making appointment of Shri G.S. Pannu who retired on September 30, 1993. It has also been mentioned that the case of both the petitioners and respondents No. 2 were considered in a similar-fashion while promoting/appointing to the post of Joint Directors of Factories. It is also the case of the petitioners that for making appointment/promotion to the post of Additional Director when the said post had fallen vacant on September 30, 1993 proper procedure was not followed as no penal of names was formulated nor any DPC was constituted for considering the names of the persons who had fallen into the zone of consideration. However, respondent No. 2 was appointed to the post of Additional Director of Factories vide order dated April 1, 1993 de hors of the rules and de hors of the procedure provided for selection of the incumbent to the office of Additional Director of Factories. The petitioners felt aggrieved to the effect that their names did not been considered along with the name of respondent No. 2 despite the fact that they were eligible and, therefore, entitled to be considered. The petitioners had made representation in this regard, the State has not passed any speaking order thereon. It is also averred that the record of respondent No. 2 is not equitable with that of the petitioners as their record is without any blemish and no adverse report has been communicated. Respondent No. 2 had earned adverse reports in the years 1973-74 and 1974-75 and subsequently in the year 1991-92. Respondent No. 2 represented against the report in the year 1991-92 which had been rejected by the Government. Aggrieved of the order dated October 4, 1993 copy Annexure P11 and inaction on the part of the government for not deciding the representations of the petitioners, the petitioners have Filed the present petition.

It is the stand of the government that respondent No. 2 who belongs to the reserved category was promoted earlier than the petitioners on the higher post on the basis of provision of roster point. Similarly, he was promoted as Additional Director of Factories on the basis of accelerated seniority for which he was entitled according to the policy/instructions prevailing at that time. It is also stated that the meeting of the DPC was held on August 25, 1994 where before the names of the petitioners Shri R.K. Madan and Late Shri Surjit Singh Gill (expired on October 8, 2000) along with the respondent were considered. Keeping in view his seniority, respondent No. 2 was promoted as Additional Director of Factories w.e.f. 4.10.1993 vide Government Order No. 1/3/94-3.Lab.1/4002-05 dated September 21, 1994. It is also averred that the case of petitioner No, 1 has not been considred for review because there is a dispute of seniority which is pending between the petitioners and one Shri S.C. Awasthi in the cadre of Inspector of Factories. Shri Awasthi is also senior to respondent No. 2 and that the dispute regarding seniority amongst these officers is still pending vide L.P.A. No. 842 of 1992 and 945 of 1992. The case of petitioner No. 1 would ordinarily be required to be considred in view of the judgment rendered by the Apex Court known as Ajit Singh Januja and others Vs. State of Punjab and others, decided on March 1, 1996 and Ajit Singh and Ors. v. State of Punjab and Ors. JT 1999(4) SCT 1 (SC): 1999(7) S.C. 153, decided on September 16, 1999.

It shall be appropriate to mention here that the case of petitioner No. 1 has been considered by the DPC in pursuant to order of this Court dated March 13, 2000 as it has been disclosed that the post of Additional Director (Factories) in the Department of Labour and Employment had fallen vacant on May 31, 1999 and that no consideration had taken place and in fact no DPC had been constituted for the said purpose. In pursuant to the aforesaid order a meeting of the DPC was held on April 3, 2001 and that petitioner No. 1 Shri R.K. Madan had been recommended for promotion/appointment to the post of Additional Director Factories. In pursuant thereto the petitioner has been appointed accordingly and that the order dated April 16, 2001, passed by the Government in this regard has been placed on record.

It is also the case of the Government that the posts had been upgraded at various levels from time to time and promotions/appointments upon the same were made accordingly. It is further averred that the said posts are not included in the Punjab Labour (Class-I) Service Rules, 1983 but these posts are governed by these rules. The seniority of Class-I officers of the Labour Department Punjab is governed by Rule 8 of the aforesaid rules. However, it is not denied by the government that the instructions containing the procedure for promotion/appointment to the higher posts are applicable and that seniority alone is not the criteria but is one of the consideration in making an assessment on merits. The senior most person is selected unless junior happens to be of exceptional merit and suitability. Thus, the selection is tempered with the rule of seniority-cum-merit. Thus, respondent No: 2 being senior to all had been duly selected and that the case of petitioners No. 1 and 2 was also considered. It has also been disclosed that the adverse remarks conveyed to respondent No. 1 for the year 1974-75 have been expunged by the Government and that respondent No. 2 had already been promoted on July 10, 1989 as Deputy Director of Factories. Thus, any adverse remarks prior thereto are not relevant. So far as adverse remarks for the year 1991-92 are concerned, the representation of respondent No. 2 was accepted and that the said re-marks were expunged by the Government vide order dated November 18, 1993. In any case, these remarks were not adverse in respect of conduct and integrity of respondent No. 2 but were rather only advisory in nature, as such, these remarks were also not very relevant at the time of consideration of respondent No. 2.

Learned counsel for the petitioners has argued that petitioners No. 1 and 2 were admittedly senior to respondent No. 2 in the rank of Inspector as petitioners No. 1 was appointed on June 3, 1971, petitioner No. 2 on June 7, 1971 and respondent No. 2 on July 12, 1971. Respondent No. 2 was promoted to the rank of Deputy Director on July 10, 1989 on the basis of rule of promotion applicable to the reserved category. Petitioners No. 1 and 2 are stated to be promoted to the rank of Deputy Director vide order July 3, 1971 w.e.f. May 10, 1997. Thus, by virtue of the catch up formula as enunciated in Ajit Singh Janjua''s case-II (supra), both the petitioners were entitled to catch up their seniority above respondent No. 2 in the rank of Deputy Director as admittedly respondent No. 2 was considered for promotion later on and the order of promotion has been passed on July 12, 1991 effective from May 10, 1991 and thereafter petitioners No. 1 and 2 were promoted to the rank of Joint Director vide order dated Novem- ber 22, 1991 effective from July 11, 1991. In view of the catch up formula petitioners would rank senior to respondent No. 2 in the rank of Deputy Director and so also in the rank of Joint Director. As such, they were entitled to be considered for promotion to the rank of Additional Director Factories by placing them senior to respondent No. 2 as on September 30, 1993, when the post of Additional Director fell vacant. However, I have been informed, that respondent No. 2 has since retired on May 31, 1999, resultantly the post of Additional Director Factories had fallen vacant on that day. Petitioner No. 2 has since died, petitioner No. 1 upon consideration in pursuant to order April 2, 2001 has been promoted/appointed to the post of Additional Director factories with immediate effect.

I have considered all the facts in totality and I have also perused the table reflecting the dates on which the petitioners and respondent No. 2 had been appointed to the post of Inspectors and thereafter promoted to the rank of Deputy Director and Joint Director respectively. The application of catch up formula may affect the dates of promotion of the aforesaid officials but in view of the fact that respondent No. 2 has since retired in the year 1999 from the post of Additional Director Factories and that petitioner No. 2 has since died, the entire exercise may not achieve a very fruitful result for the petitioner but if his effective date of promotion to the post of Additional Director Factories as on May 31, 1999, he should be amply satisfied. I refrain myself from granting relief of the petitioner for disturbing the dates as noticed above of petitioner No. 1 and2and respondent No. 2 in the respective ranks but it shall be in all fairness that petitioner No. 1 should have been given the effective date of promotion to the post of Additional Director Factories as May 31, 1999.

The petition is partly accepted and the respondents are directed to give effective date of promotion to petitioners No. 1 in the rank of Additional Director Factories as May 31, 1999. This exercise be carried out within a period of one month from the date of receipt of certified copy of this order and that upon such communication, the financial effect, if any, which may accrue to the petitioner should also be accorded accordingly within the aforesaid period. No costs.

Petition partly allowed.