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CORRECTED

REPORTABLE

        IN THE SUPREME COURT OF INDIA

        CIVIL APPELLATE JURISDICTION

          CIVIL APPEAL No. 2127 OF 2009         

Raminder Singh …….Appellant(s)

VERSUS

State of Punjab & Anr. ……Respondent(s)

          J U D G M E N T

Abhay Manohar Sapre, J.

1) This appeal is filed against the final judgment

and  order  dated  31.10.2008  passed  by  the  High

Court of Punjab and Haryana at Chandigarh in Civil

Writ  Petition  No.  1066 of  2006 whereby the High

Court  dismissed  the  writ  petition  filed  by  the

appellant  herein  against  the  office  order  dated

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13.01.2006 by which the promotion of the appellant

was cancelled and he was  reverted from the post of

Research Assistant Grade B to Silt Observer.

2) Facts of the case need mention, in brief, infra

to appreciate the controversy involved in the appeal.

3) The appellant was recruited as Silt Observer in

the  year  1986  in  Irrigation  and  Power  Research

Institute,  Amritsar,  which  is  a  Branch  of  Public

Works Department, Government of Punjab.  At the

time  of  his  appointment,  his  qualification  was

matriculation with Science subjects and B.A. with

Economics and Political Science.  While working as

Silt  Observer,  the  appellant  was  performing  the

duties  of  Research Assistant  Grade B,  as per  the

directives of his superiors.

4) The State  of  Punjab promulgated the Punjab

Public  Works  Department  (Irrigation  Branch),

Research Assistants’  State Service Class III  Rules,

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1956 (in short “the Rules”).  The Rules,  inter alia,

provides  three  Grades  in  the  cadre  of  “Research

Assistant”  in  Public  Works  Department  (Irrigation

Branch),  namely,  Research  Assistant  Grade  A,

Research Assistant Grade B and Research Assistant

Grade C.  Rule 10 with which we are concerned here

deals  with  the  Method  of  Recruitment  and

appointment to various Grades of the Service, which

reads as under:  

“10. Method of recruitment – (1) Appointment to the various grades of the

Service shall be made-

(a)   in  the  case  of  Research  Assistants, Grade A:-

(i) by  promotion  from  amongst Research Assistants Grade B; or

(ii) by  transfer  of  an official  already in the service of the Government of a State or of the Union; or

(iii) by direct appointment;

(b)   in  the  case  of  Research  Assistants, Grade B:-

(i) by  promotion  from  amongst

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Research Assistants Grade C; or (ii) by  transfer  of  an official  already

in service of the Government of a State or of the Union; or

(iii) by direct appointment;

(c)  in  the  case  of  Research Assistants, Grade C:-

(i) by  promotion  from  amongst Analysts or Silt Analysts or other ranks  already  working  in  the Institute  or  Laboratories  under the control of Institute, provided the  official  so  promoted  is reported  to  be  fit  for  research work  expected  of  Research Assistants and has worked in the Institute  or  Laboratories  for  at least 5 years and has also passed the  F.Sc.  examination  of  a recognized university; or

(ii) by  transfer  of  an official  already in service of the Government of a State or of the Union; or

(iii) by direct appointment.

(2) For promotion from Grade C to Grade B and from Grade B to Grade A, a Research Assistant  must  have  crossed  the efficiency bar in the Grade from which he is promoted.

(3) Appointment  to  any  post  to  be  filled either  by  the  promotion  of  officials already in the Service or by the transfer of officials already in the service of  the Government  of  a  State  or  of  the  Union

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shall be made purely by selection and no official  shall  have  any  claim  to  such appointment as of right.

Note  :  When  any  vacancy  arises  and  the recruitment  is  to  take  place  through  the Punjab  Public  Service  Commission  the method  of  recruitment  shall  always  be decided in consultation with them.”

5) In  the  year  1967-68,  the  State  of  Punjab

abolished the post of  Research Assistant Grade C

and it was merged in Research Assistant Grade B.

Despite  merger  of  the  post,  Rules  were  not

amended.

6) On  21.06.2001,  respondent  No.2  invited

applications  for  filling  up  the  post  of  Research

Assistant  Grade  B  from  amongst  the  cadre  of

research  staff  working  as  Silt  Analyst  and  other

categories in the Irrigation laboratories.   The said

invitation  specifically  mentions  that  the  officials,

who  are  employed  as  Silt  Analyst  or  Observer

should be working in the Institute or laboratories of

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the Department of Irrigation for at least 5 years and

has also passed F.Sc. examination or equivalent.

7) In  response  to  the  said  invitation,  the

appellant  submitted  his  application  without

concealing any fact or qualification along with the

attested photocopies of his educational qualification

certificates.   

8) On  consideration  of  his  application  and  the

experience, the Research Officer, Chemistry Branch

of  the  Irrigation  and  Power  Research  Institute,

Amritsar recommended the case of the appellant for

being  promoted  as  Research  Assistant  Grade  B.

After consideration, the appellant was promoted as

Research  Assistant  Grade  B  on  14.12.2001  and

accordingly his pay and other allowances were also

fixed.   Since  14.12.2001,  the  appellant  was

continuing to work as Research Assistant Grade B.   

9) After  the  promotions,  some  complaints  were

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received by the Punjab Government regarding  the

promotion  of  the  appellant  as  well  as  other

promotions  made  subsequently  and  the  Under

Secretary,  Irrigation  Department,  Government  of

Punjab  asked  for  the  detailed  comments  and

records from respondent No.2 regarding promotions

made by him during the period 2001-2002.

10) On  24.05.2002,  respondent  No.2  submitted

detailed comments to the Under Secretary whereby

the  promotions  of  the  appellant  and  others  were

explained.

11) On 10.10.2002, the Under Secretary, Irrigation

Department,  Government  of  Punjab  directed  the

appellant  and  seven  other  promotees  to  appear

before the Special Secretary, Irrigation Department,

on 16.10.2002 regarding the complaint about their

promotion.

12) Accordingly,  the  appellant  and  other

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promotees appeared before the Special Secretary on

16.10.2002  and  explained  to  him  about  their

eligibility under the Rules for promotion to the post

of Research Assistant Grade B.

13) After considering the matter, vide order dated

10.12.2002,  the  promotion  of  the  appellant  was

cancelled on the ground that he did not fulfill the

requisite  qualification and experience and that  he

was not promoted in accordance with Rules.

14) Challenging  the  order  of  cancellation  of

promotion, the appellant along with one Sohan Lal,

who was also promoted with him,  filed C.W.P. No.

19893 of 2002 before the High Court for quashing

the order of cancellation of promotion.

15) The  High  Court  by  order  dated  01.04.2004

disposed of the petition directing the Department to

examine  the  case  of  the  appellant  in  view of  the

decision of the High Court rendered in C.W.P. No.

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19906 of 2002  (Kuldip Singh & Ors. Vs. State of

Punjab & Anr.).

16) In compliance with the directions issued by the

High  Court,  the  claim  of  the  appellant  was

reconsidered  and  the  same  was  rejected  on  the

ground  that  he  did  not  fulfill  the  prescribed

qualification for promotion.

17) By order dated 13.01.2006, the promotion of

the appellant was cancelled and was reverted to the

post from which he was promoted.

18) Challenging  the  said  cancellation  order,  the

appellant filed writ petition being C.W.P. No. 1066 of

2006  before  the  High  Court.   By  impugned

judgment  dated  31.10.2008,  the  High  Court

dismissed the petition filed by the appellant herein.

19) Aggrieved by the said judgment, the appellant

has filed this appeal by way of special leave before

this Court.

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20) Heard Ms. Niharika Ahluwalia, learned counsel

for  the  appellant  and  Ms.  Disha  Singh,  learned

counsel for the respondents.

21) Learned  Counsel  for  the  appellant  while

assailing  the  legality  and  correctness  of  the

impugned order made three-fold submissions.

22) In the first  place,  learned counsel  contended

that  the  High  Court  erred  in  dismissing  the

appellant's  writ  petition  and  thereby  erred  in

upholding the order impugned in the writ petition

by which the appellant's  promotion to the post of

Research Assistant Grade B was cancelled and he

was reverted to the post of Silt Observer.

23) In  the  second  place,  learned  counsel

contended that when admittedly the appellant had

possessed the requisite qualification as provided in

Rule  10  (1)(b)(i)  and  (2)  for  the  next  promotional

post of Research Assistant Grade B and further the

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competent  authority  had  duly  recommended  the

appellant's  case  for  promotion  to  the  post  of

Research Assistant Grade B pursuant to which the

appellant  was  promoted  and  worked  on  the

promoted  post  from  14.12.2001  to  10.12.2002,

there was no justification on the part of the State to

have cancelled the appellant's promotion order and

revert him to his original post.  

24) In the third place, learned counsel contended

that  when the  State  merged the  Grade C post  in

Grade B and after merger, did not amend the Rules

by  providing  any  separate  qualifications  for  the

posts  in  question  nor  did  provide  any  other

requirement  by  making  any  amendment  in  the

existing  rules,  there  was  no  reason  much  less

justifiable  reason  for  the  State  to  cancel  the

appellant's promotion.  

25) In reply, learned counsel for the respondents

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supported the reasoning and the conclusion arrived

at by the High Court and prayed for its upholding.

26) Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

find force in the submissions urged by the learned

counsel for the appellant.

27) The short question that arises in this appeal

is whether the State was justified in cancelling the

promotion order of the appellant by which he was

promoted to the post of Research Assistant Grade B

from the post of Silt Analyst/Silt observer?

28) In our considered opinion, the State was not

justified  in  cancelling  the  appellant's  promotion

order as also the High Court was not  justified in

upholding the cancellation order.

29) This we say for more than one reason. First, it

is an admitted case that the appellant being an in

service candidate, his case for promotion from the

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post  of  Silt  Observer/Analyst  to  the  next

promotional  post  of  "Research Assistant  Grade B”

was  required  to  be  considered  as  an  in  service

candidate as provided in Rule  10.  Second,  it  was

again  an  admitted  case  that  the  appellant  was

working as a Silt Observer/Analyst and in addition

to  the  duties  assigned  to  this  post,  he  was  also

performing the duties of Research Assistant Grade

B  as  per  the  directives  of  the  office.  Third,  the

appellant  had  admittedly  fulfilled  the  eligibility

criteria and qualification prescribed in Rule 10 (1)(b)

(i)  and (2) as also the qualifications prescribed for

appointment  to  the  post  in  question  for  direct

recruits. Fourth, the competent authorities had also

recommended  the  case  of  the  promotion  of  the

appellant  certifying  that  the  appellant  is  fit  for

promotion.  Fifth,  the  appellant  worked  on  the

promotional post and performed the duties assigned

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to  the  promotional  post  from  14.12.2001  till

10.12.2002.  Sixth,  since  the  Government,  despite

merging the Grade C post in Grade-B post,  did not

amend the Rules and on the other hand continued

with the un-amended Rules for filling the vacancies

including vacancies by promotion, hence, the case

of the appellant had to be considered in the light of

the requirement of the Rules.  In other words, it was

necessary for  the State  to  have made appropriate

amendments in the Rules after merger of one post

into another, but so long as this exercise was not

done  by  the  State,  the  employees,  who  had

otherwise fulfilled the requirement prescribed in the

existing  Rules  for  consideration of  their  cases  for

promotion,  they  could  not  be  denied  the  benefits

flowing from the Rules and lastly, in the absence of

any adverse entries or/and record of the appellant

and further in the absence of any allegation made

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against the appellant for suppressing any material

information, we do not find any justification on the

part of  the State to have recalled the promotional

order  of  the  appellant  on  the  basis  of  some

complaints  said  to  have  been  made  by  someone

after a long lapse of time which also had no factual

or/and legal foundation.

30) Learned Counsel for the respondents, however,

contended that  the  appellant  did  not  possess  the

requisite qualifications that were necessary for the

promotional post as prescribed in the advertisement

and hence cancellation of the appellant’s promotion

was appropriate. We do not find any force in this

contention.  

31) As held supra, the appellant had fulfilled the

necessary criteria prescribed in Rule 10. It was, in

our  view,  sufficient  compliance  for  the  in  service

candidate.  Anything  prescribed  in  the

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advertisement,  which  was  de  hors the  Rules  was

bad in law.

32) In the light of foregoing discussion, we do not

agree with the view taken by the High Court and

accordingly  allow  the  appeal  and  set  aside  the

impugned  order  of  the  High  Court  and,  in

consequence,  allow  the  writ  petition  filed  by  the

appellant  (writ  petitioner)  and set  aside  the  order

dated 10.12.2002 (Annexure P-9) impugned in the

writ petition.

33) As a consequence, the appellant is restored to

the promotional post of Research Assistant Grade B.

If  the  appellant  has  discharged  the  duties  of

Research Assistant Grade B after the cancellation of

his promotional order for any reason in addition to

his  duties  assigned during the period in  question

then he would be entitled to claim the salary of the

promotional post from the date of cancellation order

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after adjusting his salary, which he has received as

Silt Observer during such period.

                  ………...................................J.    [J. CHELAMESWAR]

                           …...……..................................J.

 [ABHAY MANOHAR SAPRE] New Delhi; September 19, 2016   

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