Roop Singh vs State of Punjab

Rameshwar Singh Malik, J.—This writ petition is directed against the order dated 13.12.1991 (Annexure P-5) passed by Chief Engineer (Canals) Irrigation Works, Punjab, whereby the better and preferential claim of the petitioners for absorption as Junior Engineers, with effect from the date their juniors were absorbed, was denied. The facts of the case, which are necessary for disposal of the present writ petition, can be put into narrow compass. Petitioners were diploma holders and they were appointed as Supervisors on work charged basis for the purpose of Construction of Satluj-Yamuna Link Canal Project (for short ''SYL Canal Project''). They had been continuing without any break in service and to the satisfaction of their Seniors. There was no complaint against their work and conduct. Since some of the projects got completed or were near completion, a large number of Engineers like the petitioners were declared surplus or were likely to be declared surplus, respondent-State took a policy decision dated 23.11.1990 (Annexure P-1) to absorb the surplus employees in the different departments of the State Government. The list of surplus employees were sought and based on the information supplied by the competent authorities, respondent No. 3 issued promotion order dated 08.02.1991 (Annexure P-2), promoting as many as 41 work charged Supervisors/work Mistaries as Junior Engineers including respondents No. 4 to 6, who were admittedly junior to the petitioners.

In the interregnum, another communication dated 06.12.1996 (Annexure P-3) came to be issued by the Chief Engineer, Irrigation Works, Punjab, to the Chief Engineer Canal, requesting to give preference to the experienced diploma/degree holders, who were similarly situated like the petitioners. Aggrieved, petitioners approached this Court by way of C.W.P. No. 9021 of 1991, which was disposed of vide order dated 17.07.1991, granting liberty to the petitioners to make a representation and the respondents were directed to decide the same by passing a speaking order.

Consequently, representation dated 23.07.1991 (Annexure P-4) was moved by petitioner No. 2. The impugned order dated 13.12.1991 (Annexure P-5) came to be passed by respondent No. 3, thereby rejecting the claim of the petitioners. Hence, this writ petition.

Notice of motion was issued and pursuant thereto written statement was filed on behalf of respondent No. 3. An additional affidavit dated 15.07.2013 of Dr. N.R. Goyal, Chief Engineer Drainage, Irrigation Works, Punjab was also filed. Later on, the writ petition came to be admitted for regular hearing. That is how, this Court is seized of the matter.

Learned counsel for the petitioners submits that a bare combined reading of the pleadings in para. 2 of the writ petition and the promotion order dated 08.02.1991 (Annexure P-2), will make it clear that the private respondents were junior to the petitioners. When the promotion order (Annexure P-2) was passed, petitioners were not considered for promotion. He further submits that qualification of the petitioners, their eligibility as well as entitlement for consideration for promotion had never been in dispute. He concluded by submitting that if the petitioners could not be considered for promotion at that time, because of serious communication gap amongst the respondent and the State, petitioners could not have been made to suffer for none for their fault. He finally prays for setting aside the impugned order dated 13.12.1991 (Annexure P-5) passed by Chief Engineer (Canals), Irrigation Works, Punjab-Respondent No. 3, by allowing the present writ petition.

On the other hand, learned counsel for the State, at the very outset, on instructions from Ashok Kumar, Superintendent Office of Meli Construction Division, Punjab, Chandigarh, submits that since petitioner No. 2, namely, Shri Muneesh Jain has left the service of his own and that too long back, the present writ petition survives only qua petitioners No. 1 and 3. He further submits that the services of the petitioners were never terminated. Since their names were not supplied by the competent authority, at the time of passing of the promotion order (Annexure P-2), claim of the petitioners could not be considered. He next contended that pursuant to the orders passed by this Court on 17.07.1991 disposing of C.W.P. No. 9021 of 1991 filed by the petitioners, the only relief sought by the petitioners was that they be not terminated from their services and did not come to this Court for claiming promotion. He prays for dismissal of the writ petition.

Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the case, the present writ petition deserves to be allowed with costs. To say so, reasons are more than one, which are being recorded hereinafter.

It is the undisputed position on record that the qualification, eligibility as well as entitlement of the petitioners had never been in dispute, at any point of time. Learned counsel for the State has rightly pointed out that the claim of the petitioners could not be considered, at the time of passing of the promotion order dated 08.02.1991 (Annexure P-2), because the competent authority under whom they were working, did not send their names in time. However, he fairly states that no fault can be alleged against the petitioners in that regard. It is also a matter of record that respondents No. 4 to 6 were junior to the petitioners. Having said that, this Court feels no hesitation to conclude that respondent No. 3 proceeded on erroneous approach. At the time of passing the impugned order dated 13.12.1991 (Annexure P-5), respondents failed to consider the better and preferential claim of the petitioners for promotion as Junior Engineers with effect from the date their juniors were promoted. Thus, the impugned order cannot be sustained.

The other argument raised by the learned counsel for the State that claim of the petitioners was only qua apprehended termination of their services and not for promotion, is again misplaced and cannot be accepted. Once the juniors of the petitioners were being considered for promotion, it was the bounden duty of the competent authority, respondent No. 3 in the present case, to ensure that no senior person was left out of zone of consideration.

Further, once it was brought to his notice and that too at the time of passing of the impugned order dated 13.12.1991 (Annexure P-5), he was under obligation to rectify, if it was a bona fide mistake, at the time of the passing of the promotion order (Annexure P-2).

However, he failed to do so. Instead of denying the undisputed claim of the petitioners, respondent No. 3 ought to have directed the competent authority to consider the claim of the petitioners for considering them for promotion with effect from the date their juniors were promoted, vide Annexure P-2 dated 08.02.1991 and that too with all consequential service benefits.

However, since respondent No. 3 misdirected himself while proceeding on a misconceived approach, at the time of passing of the impugned order (Annexure P-5), it has resulted in miscarriage of justice causing serious prejudice to the petitioners. They have been made to suffer all these long 21 years, despite the fact that they had never been at fault, at any point of time. In this view of the matter, it is unhesitatingly held that the impugned order dated 13.12.1991 (Annexure P-5) passed by Chief Engineer (Canals), Irrigation works, Punjab-respondent No. 3, is illegal on face of it and the same cannot be sustained.

The case of the petitioners was also squarely covered under the policy instructions dated 23.11.1990 (Annexure P-1) issued by the State Government and followed by another official communication dated 06.12.1990 (Annexure P-3). It is not the case of the respondent-State that petitioners misrepresented their case before the respondent-authorities. It is also not denied that the case of the petitioners was covered under the policy instructions (Annexure P-1). In this view of the matter, it is held that the action of the respondents was arbitrary and discriminatory, being violative of Article 14 and 16 of the Constitution of India, because of which the impugned order (Annexure P-5) cannot be sustained.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that in view of the peculiar fact situation of the case, the instant writ petition deserves to be allowed.

Consequently, the impugned order dated 13.12.1991 (Annexure P-5) passed by respondent No. 3, is hereby ordered to be set aside. The respondent authorities are directed to consider the claim of the petitioners for promotion to the post of Junior Engineers with effect from the date their juniors i.e. respondents No. 4 to 6 were promoted, as Junior Engineers.

The petitioners shall be entitled for all consequential service benefits including continuity of service, revision of pay scale, proficiency step-ups and other incidental benefits. The respondent-authorities are also directed to grant and release the arrears of salary to the petitioners along with interest @ 9% within a period of three months, from the date of receipt of a certified copy of this order. Resultantly, with the observations made and directions issued, hereinabove, the present writ petition is allowed with costs, which are quantified at 30,000/-.