Subhash Chander vs State of Haryana

V.S. Aggarwal, J.—Petitioners Subhash Chander, Azad Kaur and Rajinder Singh are the Restorers working in the Haryana Civil Secretariat, Chandigarh. By virtue of the present writ petition, they seek a direction to consider their case for promotion as Clerk from the date respondents No. 2 to 8 have been promoted as Clerks with all the consequential benefits.

The facts alleged are that the petitioners are matriculates and were appointed as Restorers on 20.5.1992, 8.5.1992 and 18.11.1992. The service conditions for the post of Clerk are governed by the statutory rules called the Punjab Civil Secretariat (State Service Class III) Rules, 1952 (for short "the Rules"). Certain amendments were made in the year 1978. Vide the amendment effected in the year 1978, 20% of the posts of Clerk were to be filled up by promotion on seniority-cum-fitness basis from amongst Class III employees whose scale of pay is less than that of Clerks and Class IV employees.

It is alleged that whenever promotions are made from the posts of Restorers/Class IV employees to the post of Clerks, the Restorers are promoted first being in higher pay scale and the petitioners being in higher pay scale, thus, have prior right of consideration. The petitioners were eligible on 20.8.1998 when promotions were effected but their claims have been ignored arbitrarily. Their representations even were rejected. It is asserted that the petitioners should be promoted and considered for promotion before respondents No. 2 to 8.

The petition as such has been contested by respondent No. 1. It has been pointed out that promotion to the post of Clerk from the post of Class III whose scale of pay is less than that of Clerk and Class IV employees is governed by the Rules referred to above. According to the provisions, as per amendment effected on 17.3.1978, promotion to the post of Clerk can be made from amongst Class III employees whose scale of pay is less than that of a Clerk and have five years working experience and Class IV employees who have five years experience of wo''rking besides being matriculate. In the year 1996, for the purpose of making promotion to the post of Clerk from amongst Class III and IV, a circular was issued on 8.11.1996. Applications were invited from Class III and Class IV employees who were eligible in terms of the provisions of the notification dated 17.3.1978. On account of increase in the number of vacancies of Clerks, the date of receipt of applications were extended upto 30.1.1997. Thus, the cut off date for the receipt of applications was 30.1.1997. The employees who were eligible on that date could apply. The petitioners did not submit the applications as they did not have five years experience on that date. Since no Restorer was eligible for the post of Clerk, Class IV employees were considered.

In the written statement it has further been pointed out that in the past it was found that most of the Class III and Class IV employees who were promoted as Clerks were not able to discharge their duties as Clerks. It was found that there was wide-spread malpractices in obtaining the matriculation certificates through the middlemen. It was decided that for filling of 20% posts reserved for Class III and Class IV employees, there should a written test of Hindi and English language of matriculation level. Instructions were issued. However, against the said instructions, a Civil Writ Petition No. 8466 of 1997 was filed. This Court had held the said instructions to be contrary to the law. Thus, it was denied that the petitioners had any right to be considered because they did not apply nor they were eligible.

At the time of arguments, learned counsel for the petitioners submitted that the promotions had been effected in the year 1998 and at that time the petitioner had become eligible and, therefore, their cases should have been considered and the petitioners should have been promoted. The learned counsel strongly relied upon the decision of the Supreme Court in the case of Narender Chadha and Ors. v. Union of India and Ors. 1986 (1) SLR 437.

Before proceeding further, we deem it-necessary to relist some of the salient facts. In the Punjab Civil Secretariat (State Service Class III) Rules, 1952 an amendment was effected on 17.3.1978. Itwas thought appropriate to give a chance to Class III and IV employees for the post of Clerks. The said amendment reads as under :-

"1. These rules may be called the Punjab Civil Secretariat (State Service Class III) Haryana Second Amendment Rules, 1978.

In the Punjab Civil Secretariat (State Service Class III) Rules, 1952, in Rule 5, for item (a), the following item shall be substituted, namely :-

(a) Clerk - If appointed direct or by transfer from amongst the officials employed in Government Departments other than the Haryana Civil Secretariat :

(i) Matric Ist Division/Higher Secondary Division/Intermediate Second Division/Graduate of a recognised University or its equivalent; and

(ii) Knowledge of Hindi upto Matric standard. For ex-servicemen :

Matric or fifteen years service in the army and army certificate Class I.

If appointed by promotion from amongst Class III employees whose scale of pay is less than that of a Clerk or Class IV employees : Clerk or on any Class IV post or combined experience on such Class Id and IV posts. (i) Matric; and. (ii) Knowledge of Hindi, upto matric standard."

Five years experience of working on any Class III post whose scale of pay is less than that of

In the said Rules, in rule 6, in sub-rule (i), for clauses (h) and (i), the following clause shall be substituted, namely :

"(h) in the case of Clerks :-

(i) 80% by direct appointment or by transfer from amongst officials employed in Government Departments other than the Haryana Civil Secretariat.

(ii) 20% by promotion, on seniority-cum-fitness basis from amongst the Class III employees whose scale of pay is less than that of a Clerk and Class IV employees."

It is abundantly clear from the amendment effected that for the post of Clerks 20% were reserved for promotion on seniority-cum-fitness basis from amongst the Class III employee whose scale of pay is less than that of a Clerk and Class IV employees but they have to| have five years experience on any Class III post. It is also not in controversy that the State of Haryana notified for holding of an examination before promotion and Annexure R-I is the copy of the instructions. Admittedly, the said instructions had been quashed. It is yet another admitted fact that the petitioners were appointed as Restorers on 20.5.1992, 08.05.1992 and 18.11.1992 respectively. The fact alleged by the respondent has not been controverted that on 8.11.1996 applications were invited for filling up the post of Clerks. On account of increase in the number of vacancies of Clerks, the date of receipt of the application was extended uptil 30.1.1997 and that became the cut off date. The promotions, if any, actually were effected in the year 1998. Meanwhile, Annexure R-l had been quashed.

So far as the decision in Narender Chadha''s case (supra) is concerned, indeed, the perusal of the facts clearly reveal that it has little application to the facts of the present case. In Narender Chadha''s case (supra), the Departmental Promotion Committee met in the year 1970. It prepared a select list consisting of 33 names to fill 33 vacancies only in Grade IV from amongst those who had already been promoted to Grade IV temporarily. The Departmental Promotion Committee had made its recommendations on the basis of the record. Then after an interval of 12 years the Departmental Promotion Committee met in the year 1982. Same procedure was adopted. For no fault of certain petitioners and others, they were not considered but it is abundantly clear from the aforesaid that it is the inordinate delay that occurred which prompted the Apex Court to interfere.

The position in the facts of the present case is different. Herein, by the cut off date the petitioners had not completed five years experience and, therefore, in January, 1997 they were not eligible to be considered for the post of Clerk. To crown it all, they even never applied for the post of Clerk. Thus in the present pulled (petition ?) it is not inordinate delay, but because of the pendency of the writ petition the extension of the date. Even in that period, the petitioners never requested that they should be considered. If during the period that had elapsed the petitioners had completed five years experience, by itself will not permit to claim that they should be considered for the post of Clerks. Having not applied for the post of Clerk, indeed, they cannot claim the right of being considered.

So far as the argument of the petitioners that they were in higher scale and, therefore, "they should be given the first chance of being considered is concerned, in the peculiar facts of this case no opinion need by given. The reasons are obvious. When they were not eligible by the relevant date when the applications were to be submitted, the question of having a prior right of consideration does not arise.

Keeping in view the aforesaid, the conclusions are obvious that the writ petition is without merit. It must and is accordingly dismissed.

Petition dismissed