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Friday, September 23, 2016

promotion= the appellant had fulfilled the necessary criteria prescribed in Rule 10.= First, it is an admitted case that the appellant being an in service candidate, his case for promotion from the 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 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 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. 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. As a consequence, the appellant is restored to the promotional post of Research Assistance 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 after adjusting his salary, which he has received as Silt Observer during such period.

                                                                  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
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,
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 –
Appointment to the various grades of the Service shall be made-

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

by promotion from amongst Research Assistants Grade B; or

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


by direct appointment;

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

by promotion from amongst Research Assistants Grade C; or
by transfer of an official already in service of the Government of  a  State
or of the Union; or

by direct appointment;

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

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

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


by direct appointment.

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.

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 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 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  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  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. 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.
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  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 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 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 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  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  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 Assistance 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  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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