RAMINDER SINGH Vs STATE OF PUNJAB
Bench: J. CHELAMESWAR,ABHAY MANOHAR SAPRE
Case number: C.A. No.-002127-002127 / 2009
Diary number: 34785 / 2008
Advocates: ABHISHEK ATREY Vs
AJAY PAL
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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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