State of Haryana vs S.C. Diwan

V.K. Bali, J.—S.C. Diwan, in Civil Writ Petition No. 5042 of 1988 filed by him, succeeded in gelling a direction from learned Single Judge that respondents would treat him already promoted as Sub Divisional Engineer w.e.f. September 4, 1985, i.e., the day he was reverted as he happened to be senior most qualified AMIE Junior Engineer and was entitled to be promoted as Sub Divisional Engineer from that day automatically and a further direction that the respondents would regularise his services as Sub Divisional Engineer w.e.f. April 8, 1988, i.e.. the date on which, according to the respondents themselves, a permanent post of Sub Divisional Engineer, belonging to the quota of AMIE Junior Engineers, became available. The direct result of the directions given by learned Single Judge, as noted above, was to result in reversion of Gursharan Dass Sharma, Sub Divisional Engineer (Mechanical) and adversely affect Radhe Sham Aggarwal, another Sub Divisional Engineer (Mechanical). Whereas, therefore, State of Haryana has challenged order of learned Single Judge dated July 19, 1991, rendered in Civil Writ Petition No. 5042 of 1988 by way of Letters Patent Appeal No. 173 of 1992, Gursharan Dass Sharma and Radhe Sham Aggarwal, in their endeavour to achieve the same result, have filed Civil Writ Petition Nos. 16824 and 15947 of 1991 respectively. L.P.A. and two writ petitions, noted above, can, thus, be disposed of by a common order to be recorded in LPA No. 173 of 1992, as is also the suggestion given by learned counsel representing the parties, during the course of arguments. The facts that need a necessary mention, however, have been ex-tracted from CWP No. 5047 of 1988, giving rise to LPA No. 173 of 1992.

Respondent in the appeal, S.C. Diwan (hereinafter to be referred as ''petitioner'') was appointed as a Sectional Officer (Mechanical) by the Superintending Engineer, Mechanical Circle, PWD B&R, Kamal vide orders dated March 15, 1972. He appeared in AMIE Section A and B of the AMIE Examination Mechanical Engineering in Summer, 1975 and 1980 and passed the aforesaid examination from the Institute of Engineering (India) during June, 1980. It has been the case of petitioner that he was the only qualified AMIE holder during 1980 in the department, fit for promotion to the next higher rank, as the only other Junior Engineer, available, having degree in Mechanical Engineering, did not have good service record for promotion. After passing AMIE Mechanical Examination, he made a representation for considering him for promotion to the post of Sub Divisional Engineer (for short ''SDE'') which was lying vacant under the control of the respondents. His name was accordingly considered along with other eligible Junior Engineers in the month of January, 1982, by a properly constituted Departmental Promotion Screening Committee and proper screening of all the cases was made by the Screening Committee and after careful consideration of the service record of the petitioner, being the only AMIE degree holder, his name was recommended for promotion as SDE. Respondent No. 1, thus, issued orders of ad hoc promotion of petitioner on December 14, 1981, Annexure P-3. In the orders aforesaid, name of one Tek Chand Garg was also included along with the petitioner for promotion to the post of SDK (Mechanical) against the quota of Junior Engineers. It has further been the case of petitioner that the orders aforesaid were issued under sub-Rule (4) of Rule 6 of Punjab Services of Engineers (Class-II PWD B&R), Rules, 1965 (hereinafter referred to as the ''1965 Rules'') and promotion was made on ad hoc basis for six months which was extended further till September 3, 1985. On promotion, petitioner joined as SDE (Mechanical) on January 30, 1982 at Gurgaon under the control of the Executive Engineer (Mechanical) Stores and Procurement Division, PWD, B&R, Kamal and he was made incharge of Mechanical Sub Division Stores and Procurement Sub Division, Gurgaon and continued to hold the said charge upto October 12, 1984. He worked as SDE till September 3, 1985 when, suddenly, orders of reversion were issued on August 27, 1985. Aggrieved by the order of reversion, petitioner made several representations, referred to in para 7 of [he writ petition and when same brought no tangible results, he filed the writ petition for the relief, as has been granted to him by learned Single Judge, indicated above.

The cause of petitioner was opposed by the respondents, who, in the written statement filed by them, inter-alia, pleaded that the Government intended to fill up the vacancy according to rules and regulations but petitioner''s turn for promotion as per statutory service rules, had not yet come under the roster even for being considered for promotion. Petitioner had not been passed over or superseded and, therefore, he had no cause of action nor any legal right that might have been infringed. He was promoted purely on ad hoc basis for a period of six months against a post meant for direct category. Sub-rule (4) of Rule 6 of 1965 Rules deals with filling up of a short term vacancy, in the exigencies of public service, for a period not exceeding six months by local arrangement from amongst the members of Haryana PWD B&R Sectional Officers (Engg.), without resorting to the select list prepared under Rule 9. It is only in the exigencies of public interest that ad hoc promotion for a period of six months, in case of immediate non- availability of candidates from source (1) under Rule 6, could be made. Rule 6 which has a direct bearing on the controversy involved in this case, needs an immediate mention. Same reads thus :-

"6. Recruitment to service :-(1) Recruitment to the Service for cadre and ex-cadre post shall be made in the following manner only from the sources listed below in the proportions and the order indicated against a lot of every 40 vacancies :-

Method of Recruitment

Proportion

Allocation to each source in a lot of 40 vacancies.

Direct appointment

26

5 6 5 5 5

Promotion from the members of the Punjab PWD (B&R), Sectional Officers (Engineering) Services.

2 1 2 1 2

Promotion from draftsmen members of the Draftsmen and Service.

2

1 - - 1 -

Promotion from the members of the Punjab PWD (B&R), Sectional Officers (engineering) Service and the Draftsmen members of the Draftsmen and Tracer Servicescribed in Appendix "B"

4

- 1 1 1 1

40

8 8 8 8 8

(2) In case suitable candidates are not available from source No. (4), the vacancies shall be filled by direct recruitment.

(3) In case a candidate is not available from sources 1 and 3 and a person has to be appointed, in public interest, as a stop gap arrangement from other than the allotted source such a person shall be liable to be reverted to his original cadre when a candidate from the allotted source is available and the period of service rendered by such person will not be reckoned for the purpose of seniority.

(4) The Government may fill a short term vacancy, in the exigencies of the Public service, after recording specific reasons, for a period not exceeding six months in each case by local arrangement from among the members of the Punjab P.W.D. (B&R) Sectional Officers (Engineering) Service, without resorting to the select list prepared under rule 9.

(5) No person, except to the extent provided under sub-rule (4) -

(a) who is not substantive member of the P.W.D. (Building and Roads Branch) Class II service or a member of P.S.E. (B&R) Class I Service in the Junior Scale on the date of enforcement of these rules, or

(b) who is not considered suitable for appointment to the Service as provided in rule 7 read with Appendix ''G'' shall hold the post of a Sub Divisional Officer, even in an officiating capacity, unless he is declared within a period of six months from the date of enforcement of these rules, as suitable for appointment to the Service under the provisions of these rules."

It was then pleaded that representation of petitioner for reconsideration of his promotion was rejected on April 21, 1987 and the writ petition was filed in June, 1988, i.e., after a delay of nearly one year and two months and on that count as well, writ petition was liable to be dismissed. It has further been the case of respondents thai no non-AMIE holder was being considered for promotion against the 40th vacancy meant for AMIE degree qualified candidates, as alleged by the petitioner. Petitioner passed his AMIE in June, 1980. Names of Diploma Holder/AMIE Degree qualified candidates were considered for promotion including the petitioner and after finding him suitable, his name was approved for promotion on ad hoc basis for a period of six months against the post meant for quota of direct recruits. Had the four direct recruits (against the post of one of which petitioner was pro- moted on ad hoc basis) recommended by the Haryana Public Service Commission in September, 1980, joined the department, there would have arisen no necessity to promote the petitioner and others on ad hoc basis against the posts meant for direct recruits. Out of four direct recruits, so recommended by the Commission, only one candidate joined and vacancies of direct recruitment quota continued to exist against one of which petitioner was considered for promotion on ad hoc basis for a period of six months. During the period from July, 1980 to December, 1981, efforts were made to till up remaining posts meant for direct recruits by asking substitutes of recommendees of Commission, who had not joined. However, to man the vacant charge, due to immediate non-availability of direct recruits, stop-gap arrangement was made by promoting the petitioner and other Junior Engineers as SDEs, purely on ad hoc basis, Petitioner could not claim this ad hoc promotion against the vacancy meant for direct recruitment quota as a matter of right. Assertion of the petitioner that during January, 1982 Screening Committee was constituted to examine the cause of petitioner, was denied and it was asserted that petitioner was promoted along with another Junior Engineer, namely, Tek Chand Garg, purely on ad hoc basis under sub-rule (4) of Rule 6 of 1965 Rules and for that promotion, constitution of any Screening Committee, as alleged by the petitioner, was not required. It has further been the case of respondents that Haryana Public Service Commission did not allow continuance of their ad hoc promotion to the post of SDB and as such petitioner along with other SDEs had to be reverted. There was, thus, no violation of principles of natural justice and action of the department in reverting the petitioner was within the frame work of the rules. It was also averred in the written statement that petitioner was not the only senior-most Junior Engineer whose name could be considered for promotion against 40th vacancy. His name stood at Sr. No. 4 in the seniority list amongst AMIE/Degree holder Junior Engineers and terms of the petitioner for promotion as per statutory service rules had not come as yet. The regular vacancy that continuously existed from September 4, 1985 and of which petitioner was making mention of, was not meant for AMIE Degree qualified quota candidates and it was meant for diploma holder Junior Engineers'' quota/direct recruits and persons against these vacancies stood already promoted/recruited. The vacancy in the quota of petitioner had arisen only on Aprils, 1988. It requires to be mentioned at his stage that petitioners in CWP Nos. 15947 and 16824 of 1991 assert that by the time vacancies in their quota, had become available, they were eligible having acquired the requisite qualification for promotion to the post of SDE and were senior to petitioners in CWP Nos. 15947 and 16824 of 1991.

On the pleadings of the parties, as mentioned above learned Single Judge held that "since the petitioner by acquiring the qualification of AMIE came to possess the qualification prescribed in Appendix ''B'' of the Rules. While being a member of the Haryana Pub- lic Works Department (Building and Roads Branch) Sectional Officer (Engineering) Services, from whom four posts, out of a lot of 40 vacancies stood earmarked under the statutory rules, he was entitled to be considered against the same. The mere fact that, to start with, promotion of petitioner was made under rule 6(4) ibid, in a short term vacancy in December, 198 L but later on it was continued right upto 3rd September, 1985, there was no occasion to revert the petitioner with effect from 4th September, 1985, when he was entitled to be considered against the post earmarked for his quota". Learned single Judge also relied upon policy instructions of the Government issued by the Chief Secretary to Government of Punjab, by letter dated 8/15th September, 1961, and came to the conclusion that petitioner having been promoted by order dated December 11, 1981 and having continued to serve as such upto September 3, 1985, even if he was to be reverted, he had a prior right to be considered for promotion immediately thereafter as and when vacancy arose. The policy instructions, referred to above, were read to mean that if an employee had to be reverted for want of vacancy at the time of fresh promotion, the claim of that employee for promotion would have to be considered first, whose claim had already been established by his earlier promotion. On the conclusion so arrived, based upon the policy instructions aforesaid, learned Single Judge held that "therefore, before considering any other Junior Engineer for promotion, the petitioner, who was a qualified AMIE Junior Engineer, was to be considered on priority. The inaction of the respondents by not considering the petitioner for promotion with effect from 4th Septemer, 1985 and by promoting other junior Engineer, is violative of Articles 14 and 16 of the Constitution".

Before we might proceed any further in this case, it would be relevant to mention that at the time of admission of appeal, the Bench, seized of the matter, ordered maintenance of status-quo during the pendency of appeal. Relevant part of order dated February 3, 1992, reads as follows :-

"Appeal be registered. Counsel heard on the question of admission of the appeal. The Appeal is admitted. Heard the counsel on the question of grant of operation of the impugned order. The Teamed DAG points out that the implementation of the judgment means reversion of one person, senior to the respondent, S.C. Diwan, in the existing cadre. In our opinion, it will, therefore, be just if status-quo during the pendency of the appeals is maintained. We make the order accordingly. To be heard early. The operation of the impugned judgment will remain stayed during the pendency of this appeal".

Inasmuch as operation of the order passed by the learned Single Judge has since been stayed by the admitting bench, learned counsel representing petitioners in CWPNos. 15947 and 16824 of 1991 state that in case LPA. filed by the State is allowed, they would like to withdraw their writ petitions inasmuch as it is only on the dint of orders passed by learned Single Judge that they were either to be reverted or adversely affected and if order of learned Single Judge is set aside, they will have no existing cause of action.

From the pleadings of the parties, as have been reflected above, it would be seen that it is the common case of parties that promotion of the petitioner on ad hoc basis for a period of six months was under sub-rule (4) of Rule 6 of 1964 Rules. Recruitment to the service for cadre and ex-cadre post has to be made in the manner, mentioned in sub-rule (1) of Rule 6 only for the sources listed and the apportion and order indicated against the list of every 40 vacancies. In a lot of 40 vacancies, concededly, four post are earmarked for source (4), i.e., members of the Punjab PWD (B&R) Sectional Officers (Engineering) Service and the Draftsmen members of Draftsmen and Tracer Service, possessing qualifications prescribed in Appendix ''B''. Concededly as well, petitioner, who belongs to source 4, could be promoted from that source alone. Sub-rule (2) of Rule 6 specifically provides that in case a suitable candidate is not available from source (4), the vacancy shall be filled by direct recruitment. By virtue of provisions contained in sub-rule 3 of Rule 6, in case a candidate is not available from sources 1 and 3, i.e., direct appointment and members of Draftsmen and Tracer services, and a person has to be appointed, in public interest, as stop gap arrangement from other than the allotted source, such a person shall be liable to be reverted to his original cadre when a candidate from the allotted source is available and the period of service rendered by such person would not be reckoned for the purpose of seniority. Sub-rule (4) then deals with filling up of the short term vacancy. After recording specific reasons, for a period not exceeding six months in each case by local arrangement from among the members of the Punjab PWD (B&R) Sectional Officers of (Engineering) Service, without resorting to the select list prepared under Rule 9. It is quite apparent from the provisions of Rule 6, as mentioned above, that in an event a candidate may not be available from source 4, the vacancies earmarked for the said source in 40 point roster, can be occupied by way of direct recruitment, whereas the converse is not true. If a candidate is not available from sources I and 3 and in the public interest, has to be promoted from other than the allotted source, such a person has to be reverted to his original cadre when a person from the allotted source is available, but insofar as source 4 is concerned, vacancies can be filled only for a short term, without even resorting to select list prepared under rule 9. It is, thus, clear than members of the Punjab PWD (B&R) Sectional Officers (Engg.) can occupy the post under the said rule for a period of six months against a vacancy not allotted to the said source in the 40 point roster. In other words, right to occupy the post to a member belonging to source 4 accrues only when there is a vacant post earmarked for the said source in the 40 point roster. As to whether such a vacancy was available at a time when petitioner came to be promoted on ad hoc basis for a period of six months is thus, the crucial question that needs determination. It may be recalled at this stage that learned Single Judge, in addition to holding that petitioner stood earmarked, for whom four posts, out of lot of 40 vacancies were available, was entitled to be considered against the same, further held that there was no occasion to revert the petitioner w.e.f. September 4, 1985 when he was entitled to be considered against the post earmarked for his quota. It is this latter finding of the learned Single Judge that has been seriously questioned in this appeal. Mr. Dahiya, learned Deputy Advocate General, Haryana, on the basis of pleadings as also records of the case which have been made available to us, vehemently contends that aforesaid finding of learned Single Judge cannot possibly sustain.

After hearing learned counsel for the parties and examine the records, leading to first promotion of the petitioner on the post of SDE for a period of six months and then his reversion, we find merit in the contention of learned counsel, noted above. Reverting to the pleadings of the parties, no doubt, it has been the case of the petitioner that a vacancy, meant of source 4 was all through available and that he was considered for promotion against the vacancy meant for his source, but the same was emphatical denied by the respondents. It was further the assertion of respondents that turn of the petitioner, as per statutory rules, had not come in the roster inasmuch as the post meant for source 4 became available only on April 8, 1988. It has also been the case of the respondents that promotion of petitioner on ad hoc basis under sub-rule (4) of rule 6 was made as three out of four candidates, who were selected by the Haryana Public Services Commission from source 1, i.e., direct recruitment, did not join service and that no non-AMIE holder was considered for promotion against the 40th vacancy meant for AMIE degree qualified candidate, as alleged by the petitioner. The matter with regard to making ad hoc promotions came up for consideration by the respondents on October 28, 1981, as is clear from the records made available to us, leading to promotion of petitioner on ad hoc basis. Relevant parts of note, prepared by the concerned official on October 28, 1981 and as translated into English, reads thus :-"This ease pertains to filling up of the post of Sub Divisional Engineer (Mechanical) by promotion on ad hoc basis.

In this regard, vide his letter dated 30.9.1981, the Engineer-in-Chief, Haryana, while sending proposal has intimated that uptil now total 38 vacancies of Class-II Mechanical have arisen in the Department as per details given at Annexure ''A'' at Flag ''J'' 33-34. Vacancies upto Sr. No. 33 have already been filled up on regular basis and vacancies at Sr. No. 34 to 37 pertain to direct recruitment cadre and vacancy at Sr. No. 38 is meant for promotion from Junior Engineers quota which has arisen as a result of suspension of Shri D.D. Sharma.

So far as filling up of the post of direct recruitment is concerned, the Engineer-in-chief has intimated that four candidates of direct recruitment were re- ceived from the Haryana Public Service Commission but out of them only one candidate, namely, Shri S.K. Chaudhary has joined the department, who is now under training. Forgetting the substitute of remaining two candidates, the Haryana Public Service Commission has already been requested. The third candidate has also not joined the post and a proposal for cancellation of his offer of appointment has been received from the Engineer-in-Chief, Haryana, which is under consideration. In view of this situation, the Engineer-in- Chief has informed that after completion of training of Shri S.K. Chaudhary, there would remain three vacancies of direct recruitment quota. After receipt of candidates against these posts from Haryana Public Service Commission and after the character verification as well as medical examination and for giving them training for a period of six months a sufficient time is expected to take place. Engineer-in-chief has opined that it would not be in the public interest to keep these posts for such a long period. It has, therefore, been proposed that these three vacancies may be filled by ad hoc promotion under rule 6.4 of Class-II rules from Junior Engineer (Mechanical) without convening the meeting of the Screening Committee.

So far as filling up the vacancy at Sr. No. 38 meant for Junior Engineers quota, the Engineer-in-chief has stated that this is a resultant vacancy which has arisen as a result of suspension pf Shri D.D. Sharma. He has requested that approval for filling up this post may also be given so that work may not suffer due to suspension of Shri Sharma for a long period."

After recordings as mentioned above, the concerned official then discussed service records of Shri Ram Dayal, Ramesh Chander Juneja, Jawahar Lal Jain, Tek Chand Garg, Mahiya Singh, Subhash Chander Dewan (petitioner) and Gurminder Singh and then further proceeded to observe as follows :-

"In this regard, it is also submitted that Shri Gurminder Singh was promoted as Sub Divisional Engineer (Mechanical) on ad hoc basis during December, 1976 and in the meeting of the Screening Committee held on 22.11.1979, he was recommended for promotion on regular basis. But on the basis of record, Public Service Commission did not approve his promotion. Thus, he was reverted to the post of Sectional Officer on 15.5.1980. As regards, Shri Tek Chand Garg, there are remarks in the column of his integrity in the ACR for the year 1977-79/8 that he is involved in misappropriation/temporary embezzlement of Government money and shortage of cash in chest. In this regard Engineer-in-chief was asked to intimate as to what happened in the said case. The Engineer-in-chief has informed that in this case no financial loss to the Government had been found and thus Shri Garg had been warned to be more careful in future in such irregularities. The Engineer-in-chief has also sent a copy thereof which is at J/17. But the Engineer-in-chief has neither proposed for expunging the above remarks from ACR of Shri Garg nor Shri Garg has submitted any representation in this regard. Thus, these remarks stand on the ACR of Shri Garg and the Engineer-in-chief has written that these remarks are vague and should not be considered as bar in promotion. Thus, the Engineer-in-Chief has requested that promotion order of Shri Tek Chand Garg, Subhash Chander Dewan and Gurminder Singh to the post of Sub Divisional Engineer (Mechanical) on ad hoc basis may be made at an early date.

Besides above, the Engineer-in-Chief requested for grant of approval for filling up vacancy No. 38 which is a resultant vacancy arisen on suspension of Shri D.D. Sharma. As per provision of note below rule 7.4 of Civil Service Rules Volume I Part I, a resultant vacancy of suspension can be filled through leave reserve and if reservist is not available, it can be filled from outside or by officiating appointment. In a similar other case a vacancy arisen on suspension of Shri R.C. Dhir was filled up by promotion of Shri A.K. Narang to the post of EE (Electrical). In view of above, officers may please consider whether approval may be given for filling up of vacancy arisen as a result of suspension of Shri D.D. Sharma, Sub Divisional Fngineer (Mechanical). It may also be decided whether accepting the recommendations of Engineer-in-chief, Shri Tek Chand Garg, S.C. Dewan and Gurminder Singh may be promoted as Sub Divisional Engineer (Mechanical) on ad hoc basis. Besides these three officers, the ACR files of Shri Ram Dayal, R.C. Juneja, Jawahar Lal Jain and Mahiya Singh are placed below.

Submitted for approval of Hon''ble P.W.M."

The proposal of the department then came to be considered by the Superintendent (B&R) who observed as follows on November 5, 1981 :-

"There is a proposal from the Engineer-in-chief, for filling up of three vacancies of Sub Divisional Engineer (Mechanical) by ad hoc promotion from present Junior Engineers due to non-availability of candidates of direct recruitment. In this connection, Engineer-in-Chief has recommended that Shri Tek Chand Garg, Subhash Chander Dewan and Gurminder Singh may be promoted as Sub Divisional Engineer (Mechanical) on ad hoc basis. Out of these, Shri Subhash Chander possesses the qualification of AMIE and Shri Gurminder Singh Degree holder. On the basis of record, Shri T.C. Garg and S.C. Dewan are suitable for promotion and thus if approved, they may be promoted on ad hoc basis i.e. for six months as Sub Divisional engineer(Mechanical). Shri Gurminder Singh has earned total eight and half reports out of which three and three-fourth reports are of good category but four and three-fourth reports are of average category. Thus he is not suitable for promotion.

So far as the question of second proposal of Engineer-in-Chief is concerned that is for filling up of vacancy No. 38 arisen on suspension ot Shri D.D. Sharma, in this regard, while inviting attention of Engineer-in-Chief to rule 7.4 of CSR Vol. I Part I, it may be advised that this vacancy may be filled from leave reserve quota :

Submitted for approval of Hon''ble P.W.M"

From the perusal of the records, as fully detailed above, it would, thus, transpire that in a roster of 40 vacancies, 33 had since already been filled on regular basis and that vacancies at Sr. No. 34 to 37 stood earmarked for direct recruitment whereas vacancy No. 38 was meant for promotion from Junior Engineers quota. The 40th vacancy, against which the petitioner lays his claim, had not even arisen at the time when he was given promotion on ad hoc basis. It is further clear from the pleadings in the written statement as also in the note prepared by the concerned official on October 28, 1981 that petitioner found his promotion by way of stop-gap arrangement against a vacancy clearly earmarked for a direct recruit.

13., as Coming now to the records pertaining to reversion of petition, it would be clear from note dated May 16, 1985, which was approved by the Secretary of the Department on May 21, 1985 that the petitioner had to be reverted as his ad hoc promotion was ultimately not approved by the Haryana Public Service Commission Relevant part of the note dated May 16, 1985translated into English, runs thus :-

"Due to non-availability of direct recruits from the Haryana Public Service Commission, Shri Tek Chand Garg and Subhash Chander Dewan were promoted to the post of Sub Divisional Engineer (Mechanical) for six months. The Commission was requested to allow continuation of ad hoc promotion beyond six months. Earlier, the Commission had demanded some information, therefore, the Commission vide its letter dated 22.1.1985 had informed that they are not in agreement with the proposal of ad hoc promotion made by Government and it should be undone at once and the concerned officials be reverted as the requisition for filling of two vacancies was not sent to Haryana Public Service Commission within fifteen days from the date of appointment on ad hoc basis as this arrangement is not according to the Government Rules/instructions. In this connection the Commission was informed that for the purpose of filling up the posts to Sub Divisional Engineer (Mechanical) the main case has been sent to the Chief Secretary for obtaining no objection certificate as per instructions. According to the instructions, no post can be filled up without obtaining No Objection Certificate because many officers/officials have become surplus on account of imposing 10% cut in the State. On receipt of advice from the Chief Secretary in respect of the requisition, the same will be sent ana till then the Commission was requested to allow continuation of ad hoc promotion of these two officers.

Now the Haryana Public Service Commission again informed vide letter under consideration that the Commission is not in agreement with the proposal of promotion made by the Government on ad hoc basis and the same is rejected. It will be worthwhile to mention here that Shri Tek Chand Garg was placed under suspension on account of withdrawing Rs. 60,000/- in place of Rs. 6000/-from the Bank. The Commission has not given approval of the promotion for six months only and thereafter it can be continued with the approval of the Haryana Public Service Commission only. If officers agree, Shri Tek Chand Garg and Subhash Chander Dewan may be reverted from the post of Sub Divisional Engineer (Mechanical). The approval of Hon''ble PWM may kindly be obtained".

From the records, it does become clear that the petitioner was not promoted against his own source as in the said source no vacancy, out of 40 point roster, was available. His appointment/promotion was purely on ad hoc basis, as envisaged under the provisions of sub-rule (4) of Rule 6 of 1965 Rules. Even by the time he came to be reverted, a vacancy in his source had not become available, the same having become available only on April 8, 1988 and further that this reversion was on account of non-approval by the Haryana Public Service Commission as is also the case of respondents, so pleaded in the written statement. The very basis of the case of the petitioner, thus, stands knocked out. The finding of learned Single Judge that there was no occasion to revert the petitioner w.e.f. 4th September, 1985 when he was entitled to be considered against the post earmarked for his quota, has, thus, necessarily to be set aside. So ordered.

The only other ground that prevailed with learned Single Judge in granting relief to the petitioner is based upon the policy instructions of the Government issued by the Chief Secretary to Government of Punjab, vide letter dated September 8/11,1961. It was pleaded in para 10 of the writ petition that there were certain set of rules of the department regarding procedure to be followed in selection of officers/officials for promotion to higher posts and greater emphasis was on merits than on seniority and it is for that reason that instructions were issued vide letter dated September 8/1l, 1961. In the said policy, which is applicable to Haryana also. Point III reads as follows :-

"Point 111:- Official ''A'' is considered unsuitable and official ''B'' is suitable for promotion. B is promoted but lateron, has to be reverted for want of a vacancy. By the time a vacancy arises again, A too has become suitable. Will this vacancy go to B?

Clarification : As the claim of B for the vacancy has been established earlier and he has also officiated in the higher post for some time, B should normally get the vacancy in preference to A".

In the reply that came to be filed by the respondents, it was pleaded in corresponding para that peti- tioner''s promotion was purely on ad hoc basis for a period of six months against a vacancy meant for direct recruitment quota and name of junior engineer having AMIE Degree qualification had to be considered for promotion in order of seniority as fixed under the provisions of the statutory rules against 40th vacancy and the petitioner could not stake his claim for promotion as a matter of right on the basis of instructions which were not applicable in his case when his turn under the rosier point had not come even for being considered in view of the Government instructions dated August 12, 1988, Annexure, R-II and letter dated September 17, 1956, Annexure R-III.

Instructions, Annexure P-10, relied upon by the petitioner, in our view, do not advance his case at all. Point III of the said instructions deal with a case where official ''A'' is not found suitable and it is for that reason that official ''B'' is found suitable and promoted and by the time vacancy arises, official ''A'' too has become suitable. The case in hand is not where the petitioner, as compared to his seniors might have been found suitable and his seniors might have not been found suitable for the post under contention. It appears to us that his seniors were not even considered and it further appears to us that by the time petitioner came to be promoted on ad hoc basis, they were not having AMIE qualification. It is not the case of petitioner nor any instructions have been relied upon for that purpose that irrespective of his seniority, he was the only candidate eligible for promotion, even though on ad hoc basis and that he could steal march over his seniors irrespective of his seniors becoming eligible by acquiring AMIE qualifications by the time a post in his quota becomes vacant.

The twin grounds that prevailed with the learned Single Judge in granting the desired relief to the petitioner, in pur view, can not sustain and, thus do not find favour with us. Resultantly, the impugned judgment of learned Single judge dated July 19, 1991 is set aside and this appeal is allowed.

Insofar as CWP Nos. 15947 and 16824 of 1991 are concerned, same are dismissed as withdrawn. Parties in all the matters, are, however, left to bear their own costs.

Appeal allowed.