Rajiv Bhalla and Another vs State of Punjab and Others

Tejinder Singh Dhindsa, J.—The petitioners who were working as Junior Engineers in the Department of Rural Development and Panchayat, State of Punjab, were promoted as Sub Divisional Officers (Panchayati Raj) [for short to be referred as ''SDOs (PR)''] w.e.f. 6.4.1995 vide order dated 7.4.1995, Annexure P2, upon the recommendations of the Departmental Promotion Committee (hereinafter to be referred as ''the DPC) in its meeting held on 27.6.1994. Thereafter, vide order dated 27.8.2001, Annexure P4, the petitioners were granted the benefit of ante-dated promotion to the post of SDO (PR) w.e.f. 27.6.1994 i.e. the date of the recommendations made by the DPC. The challenge in the instant writ petition is to the order dated 9.5.2011, Annexure P12, whereby the order dated 27.8.2001 granting ante-dated promotion to the petitioners, has been withdrawn and the order dated 7.4.1995 promoting them as SDOs w.e.f. 6.4.1995 has been confirmed.

Facts, in brief, which are relevant for the controversy raised in the present petition are that the petitioners were appointed as Junior Engineers in the respondent-Department in the year 1981. Promotion from the post of Junior Engineer is to the post of SDO (PR). It has been pleaded that the petitioners were vested with the current duty charge of the post of SDO in their own pay scale on 7.4.1993 and 9.5.1994 respectively. A DPC was convened by the respondents on 27.6.1994 for purposes of consideration of the eligible officials to fill up the promotional quota in the cadre of SDOs. In terms of order dated 7.4.1995, Annexure P2, the petitioners along with nine other officials were promoted to the post of SDO (PR) w.e.f. 6.4.1995. It so transpires that the petitioners thereafter raised a claim that since they were already officiating on the higher post i.e. SDO (PR), they be granted the benefit of regular promotion with effect from the date of the recommendations of the DPC i.e. 27.6.1994 on the basis that they were fully eligible in terms of their length of service and the qualifications held. Apparently, advice was sought by the respondent-Department as regards the claim raised by the petitioners from the Department of Personnel, State of Punjab and the following advice was tendered on 8.12.2000 by the Additional Secretary (Personnel):

The Administrative Department is advised that where an Officer is already holding current duty charge of the higher post and thereafter the said officer is found fit for promotion by the DPC, he can be regularly promoted to the post from the date of the meeting of the DPC.

Sd/- Additional Secretary Personnel.

It is in consequence to acting upon such advice that the order dated 27.8.2001, Annexure P4, was issued promoting the petitioners as SDOs w.e.f. 27.6.1994 i.e. the date of holding of the DPC and, accordingly, modifying the earlier order dated 7.4.1995, Annexure P2.

The respondent-Department issued memo dated 18.7.2002, Annexure P6, inviting objections as regards placement of the petitioners in the seniority list of SDOs (PR). In terms of the memo dated 18.7.2002, it was stated that petitioners No. 1 and 2 had earlier been placed at Serial Nos. 40 and 41 in the final seniority list of SDOs (PR), but on account of the fact that they had been granted the benefit of ante-dated promotion to the higher post w.e.f. 27.6.1994 i.e. the date of DPC, accordingly, a decision had been taken to now place them at Serial Nos. 26 and 27 in the final seniority list and it was with regard to such revised seniority position that objections were sought.

The action of the respondent-Department in terms of issuance of order dated 27.8.2001, Annexure P4, granting antedated promotion to the petitioners with effect from the date of holding of DPC as also the tentative revised fixation of seniority as reflected in memo dated 18.7.2002, Annexure P6, was objected to by the directly recruited SDOs who had been appointed on 19.8.1994 in pursuance to the recommendations made by the Punjab Public Service Commission.

The petitioners became aware of the entire issue being reviewed and the State Government contemplating to withdraw the order dated 27.8.2001, and accordingly, they filed Civil Writ Petition No. 10614 of 2010 which came to be disposed of vide order dated 10.9.2010, Annexure P11. It was held by this Court that since no final order had as yet been passed to the detriment of the petitioners, the petition was pre-mature and was, accordingly, disposed of with the directions that in case any adverse order was required to be passed, the affected employee would be given an opportunity of hearing prior to passing of the order.

The petitioners were granted an opportunity of hearing on 15.2.2011 and thereafter the impugned order dated 9.5.2011, Annexure P12, was passed withdrawing the benefit of ante-dated promotion as SDOs from the date of recommendations of the DPC i.e. 27.6.1994 and they were held to be promoted as SDOs (PR) from 7.4.1995.

Learned counsel appearing for the petitioners has vehemently argued that the impugned order is erroneous inasmuch as there is no bar as regards grant of benefit or promotion to the petitioners to the post of SDOs (PR) with effect from the date of holding of the DPC. It was further urged that such benefit of ante-dated promotion had been granted to the petitioners consequent to the advice tendered by the Department of Personnel and as such, the impugned order withdrawing the benefit of ante-dated promotion from the petitioners is wholly unwarranted. Learned counsel has also raised an argument that the impugned order suffers from a total non-application of mind and has been passed in the exercise of a power of review which was not even vested in the competent authority. Still further, learned counsel would contend that in terms of the impugned order dated 9.5.2011, Annexure P12, a settled position as regards promotion of the petitioners to the post of SDOs (PR) w.e.f. 1994 that had held good since the year 2001 was sought to be unsettled and on such ground, the impugned order cannot sustain as it would be against the canons of service jurisprudence.

Written statements have been filed on behalf of respondents No. 1 and 2 as also on behalf of the private respondents No. 4 to 14 who are the directly recruited SDOs. A common stand has been taken on behalf of the official respondents as also the private respondents to the effect that on 27.6.1994 the petitioners had been considered for promotion against two posts of SDOs (PR) against the AMIE quota as against anticipated vacancies which were to become available only on 28.7.1995 when Shri Rajesh Verma and Shri Mahinder Pal, SDOs (PR) were to be promoted as Executive Engineers. Still further, it has been stated that the final seniority list of SDOs (PR) had not been issued and the same is still under consideration by the State Government. The passing of the impugned order dated 9.5.2011 was sought to be justified on the ground that as it had come to the notice of the Department that the post of AMIE quota in the SDO(PR) cadre to be filled up by promotion were not available/vacant as on 27.6.1994 i.e. the date of holding of the DPC. Accordingly, the mistake had been rectified.

Learned counsel for the parties have been heard at length and the pleadings on record have been perused.

The service conditions as regards the post of SDO (PR) are governed by the statutory Rules called the Punjab Development and Panchayat (Class-II) Service Rules, 1974. Promotion from the post of Junior Engineer to the post of SDO (PR) would be governed by Rule 9 and the same reads in the following terms:

Rule 9. The appointment to the service shall be made by the govt.

Sub-Divisional Officer (Panchayati Raj Circle) -(1) Recruitment to the posts of Sub-Divisional Officers in the Panchayati Raj Circle shall be made from the sources listed below in the proportion and the order indicated against a lot of every 40 vacancies.

In case suitable candidate are not available from source No. 4 the vacancies shall be filled by direct recruitment.

A perusal of the above re-produced statutory provisions would make it clear that for purposes of recruitment to the post of SDO (PR), against a lot of every 40 vacancies, four vacancies have been earmarked for Source-4 i.e. by way of promotion from amongst AMIE Degree holders i.e. the category to which the petitioners belong. While raising a challenge to the impugned order, it has been urged on behalf of the petitioners that their names were considered by the DPC against vacancies available against their quota, pertaining to Source-4 and towards such assertion, a reference was made to certain information supplied under the provisions of the Right to Information Act at Annexure P1. On the face of it, Annexure P1 reflects petitioners No. 1 and 2 at roster points 56 and 53 respectively, and show them as AMIE Junior Engineers. However, learned counsel appearing for the private respondents would clarify that the roster point numbers at 56 and 53 wherein the names of the petitioners have been reflected at Annexure P1 relate to a reservation list maintained by the Government as regards reservation points for SC, ST and BC category. It has been argued on behalf of the private respondents that the list at Annexure P1 is a list of all the promotees which, as per practice, is maintained by every Department of the State, separately for direct and promotee Officers to maintain the prescribed percentage of reservation of reserved category employees.

Suffice it to notice that the list at Annexure P1 is not a roster as per the proportion and order reflected in Rule 9 of the 1974 Rules. Still further, the matter would stand crystallized in the light of the categoric and specific stand taken by the State in its reply wherein the details of vacant posts pertaining to different sources for promotion to the post of SDO (PR) as on 27.6.1994 i.e. the date of holding of the DPC has been furnished. The relevant pleadings in the written statement filed on behalf of the State are to the following effect:

...It is submitted that on 27.6.94 when the case of promotion for the posts of S.D.O. (PR) was considered, the details of vacant posts were as under:

It is further submitted that two posts of S.D.O. (PR) in A.M.I.E. quota to be filled up by promotion fell vacant on 28.7.95 on the promotion of Shri Rajesh Verma and Shri Mohinder Pal as Executive Engineers (PRD). Therefore, the petitioners are not entitled to be promoted to the post of S.D.O. (PR) from the date of D.P.C. i.e. 27.6.1994. Those vacancies on which Shri Rajiv Bhalla and Shri Surat Ram Sharma were promoted as S.D.O. (PR) became available on 28.7.1995 when Shri Rajesh Verma and Shri Mahinder Pal, S.D.O. (PR) were promoted as Executive Engineers vacating their posts. It is also pertinent to mention here that final seniority list of S.D.O. (PR) has not yet been issued and it is under the consideration of Government.

It, thus, becomes apparent that on 27.6.1994, there was no vacancy available pertaining to Source-4 i.e. Junior Engineers (AMIE/Degree holders) for promotion to the post of SDO (PR). Such factual assertion made at the hands of the State has gone unrebutted by the petitioners. As such, it is conclusively held that the petitioners could not have been given benefit of ante-dated promotion with effect from the date of the holding of meeting of the Departmental Promotion Committee i.e. 27.6.1994 as there were no vacancies available at that point of time pertaining to Source-4 under Rule 9 of the 1974 Rules to which the petitioners belong.

Mr. Dhiraj Chawla, learned counsel for the petitioners has very strenuously argued that the petitioners had been granted the benefit of ante-dated promotion to the post of SDOs (PR) w.e.f. 27.6.1994 in the light of issuance of order dated 27.8.2001, Annexure P4, and such position has held good till the passing of the impugned order in the year 2011. Learned counsel would even refer to the seniority list dated 18.7.2002 at Annexure P6 to be a final seniority list and would, accordingly, urge that in service matters the issue of seniority cannot be reopened after a lapse of a considerable length of time and even the settled rights as regards ante-dated promotion of the petitioners w.e.f. 27.6.1994 could not be unsettled in terms of passing the impugned order after such a long delay. Towards such assertion, learned counsel would place reliance upon two judgments of the Hon''ble Supreme Court in:

1 B.S. Bajwa and Another Vs. State of Punjab and Others, and

Union of India and Others Vs. Kishorilal Bablani,

I find such assertion raised by the learned counsel to be without merit as the same proceeds on a factual incorrect premise. In terms of issuance of memo dated 18.7.2002, Annexure P6, objections had been invited from the affected employees while contemplating re-fixation of the seniority position as regards the petitioners in the light of the benefit of ante-dated promotion having been granted to them on the higher post of SDO (PR) w.e.f. 27.6.1994, Objections had, in fact, been submitted by the private respondents against such proposed revised seniority position. Representations had also been filed against order dated 27.8.2001 whereby ante-dated promotions to the post of SDOs (PR) had been granted to the petitioners. The matter thereafter remained under active consideration with the State Government. It is only upon the passing of the impugned order dated 9.5.2011, Annexure P12, that the matter stood reviewed and the earlier order dated 27.8.2001, Annexure P4, was withdrawn and the promotion of the petitioners to the post of SDO (PR) w.e.f. 6.4.1995 was confirmed, Insofar as the seniority position is concerned, the categoric plea taken in the written statement by the State is to the effect that the seniority list after issuance of memo dated 18.7.2002, Annexure P6, was never finalized and the matter was yet under consideration by the State. Against such factual backdrop, the assertion on be-half of the petitioners that the settled position of seniority that held good for a number of years and had, in fact, been acted upon is clearly mis-conceived. On the contrary, no final seniority list has been placed on record and none has been impugned.

Equally, devoid of merit is the contention raised by the learned counsel for the petitioners that since they had been holding the current duty/additional charge of the higher post of the SDO even prior to the holding of meeting of the DPC, as such, they would be vested with the right to claim seniority at least from the date of the recommendations made by the duly constituted DPC. It is well settled that current duty charge/additional charge of the higher post is given in the normal administrative exigencies of service and the same does not confer the right of seniority. Be that as it may, seniority, inter se the members of the service, has to be determined by the length of continuous service on a post in each cadre of service as mandated by Rule 13 of the 1974 Rules which reads in the following terms;

The Seniority inter se of members of the service shall be determined by the length of continuous service on a post in each cadre of the service:-

Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows:-

a) a member recruited by direct appointment shall be senior to the member recruited otherwise.

b) A member appointed by promotion shall be senior to a member appointed by transfer.

c) In the case of members appointed by promotion or transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred; and

d) In case of members, appointed by transfer from different cadre their seniority shall be determined according to pay, preference being given to a member who was drawing higher rate of pay in his previous appointment, and if the rates of pay drawn are also the same then by their length of service in those appointments and if the length of such service is also the same an older member shall be senior to a younger member.

Note:- L This rule shall not apply to members appointed on purely provisional basis.

In the case of members whose period of probation is extended under rule 12, the date of appointment for the purpose of this rule shall be deemed to have been deferred to the extent the period or probation is extended,

At this stage, learned counsel for the petitioners would place heavy reliance upon a Division Bench judgment of this Court rendered in Sarv Mittar Sharma, Special Secretary, Punjab and Haryana High Court Sarv Mittar Sharma, Special Secretary Vs. The Punjab and Haryana High Court, 1 to contend that once the competent authority has honestly arrived at one decision and such decision has thereafter been acted upon, the Successor in office cannot re-consider the entire issue so as to arrive at another and totally different decision. Such judicial precedent would have no applicability to the facts of the instant case. In terms of issuance of order dated 27.8.2001, Annexure P4, the petitioners were sought to be given the benefit of ante-dated promotion to the post of SDO(PR) w.e.f. 27.6.1994 i.e. the date of holding of meeting of the DPC. A pointed query was put to the learned counsel for the petitioners as to whether at the stage of issuance of order dated 27.8.2001, Annexure P4, any opportunity had been granted to the direct recruits i.e. the private respondents who already stood appointed on 19.8.1994 in pursuance to the recommendations of the Punjab Public Service Commission. Learned counsel for the petitioners has very fairly responded in the negative. Clearly, the promotion order dated 27.8.2001, Annexure P4, granting ante-dated promotion to the petitioners w.e.f. 27.6.1994 which was to the detriment and prejudice of the interest of the private respondents, had been passed behind their back and the same cannot be construed as a honest decision. A benefit of ante-dated promotion to the post of SDO(PR) against Source-4 under Rule 9 of the 1974 Rules was sought to be given with effect from the date when vacancies pertaining to AMIE public degree holders were not even available. Such ante-dated promotions granted to the petitioners were clearly dehors the Rules. It was a mistake that had been committed by the respondent-Department which stands rectified in terms of passing the impugned order dated 19.5.2012, Annexure P12. The argument raised on behalf of the petitioners that the impugned order has been passed in exercise of power of review which was not permissible in law is rejected. A mistake committed while taking an administrative decision is always open to correction in terms of following due process of law. In taking such view, I would draw support from the following observations of the Hon''ble Apex Court in Union of India (UOI) and Another Vs. Narendra Singh,

It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.

As observed by us, statutory rules provide for passing of departmental examination and the authorities were right in not relaxing the said condition and no fault can be found with the authorities in insisting for the requirement of law, In the circumstances, the action of the authorities of correcting the mistake cannot be faulted.

Admittedly, the impugned order dated 9.5.2011, Annexure P12, was passed after having granted due opportunity of hearing to the petitioners and as such, even the principles of natural justice were duly complied with prior to passing the same.

For the reasons recorded above, I find no infirmity in the order dated 9.5.2011, Annexure P12, whereby the benefit of ante-dated promotion granted to the petitioners to the post of SDO(PR), with effect from the date of holding of meeting of the DPC i.e. 27.6.1994 has been withdrawn and their promotion to the higher post w.e.f. 7.4.1995 has been confirmed. No merit. Dismissed.