Sher Singh vs The Commissioner and Secretary to Govt. Haryana, Industries Department and Others

Alok Singh, J.—Present petition is filed seeking mandamus commanding the respondents to promote the petitioner forthwith on the post of Inspector, Weights and Measures w.e.f. 20.01.1985 and to fix seniority of the petitioner accordingly.

The brief facts of the present case are that petitioner joined as Sub Inspector in Food and Supplies Department in the year 1975; Thereafter, his services were absorbed in the Weights and Measures department as Clerk since post of Sub Inspector in Food and Supplies department were found to be surplus; Petitioner did his graduation while remain in service as Clerk in the Weights and Measurements department and applied for promotion to the post of Inspector, Weights and Measures; Since petitioner was not granted promotion, hence, petitioner has approached this Court by way of present petition invoking Article 226 of the Constitution of India.

Respondents have refuted the claim of the petitioner and contended that post of Inspector, Weights and Measures is a Technical post and only Manual Assistants, who are holding the Technical post, can be considered for promotion. Further case of the respondents is that Clerk being a Ministerial staff cannot ask for promotion on the Technical post i.e. Inspector, Weights and Measures.

I have heard learned Counsel for the parties and perused the record.

Learned Counsel for the petitioner submitted that although petitioner stood retired in 2000 yet he is entitled for notional promotion for the purpose of post retirement benefits. Undisputedly, petitioner himself took voluntary retirement on 30.04.2000. Learned Counsel for the petitioner has placed reliance on Rule 9(2) of the Punjab Industries Department (State Service, Class III), Rules 1956 which were in force at the relevant time.

Rule 9(2) of the Punjab Industries Department (State Service, Class III), Rules 1956 reads as under:

9(2) - Appointment to the Technical posts in the Service, as given in Appendix ''A'' shall be made by promotion from the service, or by transfer or deputation of officials working in other departments of Punjab Government or under the Government of a State other than Punjab or of India, or by direct recruitment according to their requirements of each case. The appointing authority, has given in Appendix ''A'' shall determined in each case the manner in which such vacancy shall be filled. Promotion shall be by selection on the basis of seniority and merit.

From the perusal of the aforesaid Rule 9(2), it can safely be held that word ''service'' used therein would mean service as defined in Appendix ''A''. Perusal of Appendix ''A'' reveals that it is in two parts. In one part Ministerial posts are defined and in another part Technical posts are given. Since, post of Clerk is under the Ministerial service and post of Inspector, Weights and Measures is under the Technical service, hence, it would be safe to hold that service defined in Rule 9(2) would mean relevant service. In other words, if promotion is to be made on the higher post pertaining to the post mentioned under the Ministerial service then employees working in the Ministerial service would be entitled for the promotion and in the same fashion for the post of Inspector, Weights and Measures which is under the Technical service, only those employees would be entitled for promotion who are working under the Technical service.

In view of the above, since petitioner was working on the post of Clerk, hence, was not eligible to be considered for promotion to the post of Inspector, Weights and Measures.

Learned Counsel for the petitioner stated that in past some of the Clerks were given promotion. Perusal of Annexure P-11 dated 20.5.1987 reveals that even Law Department of the State had opined that only Manual Assistants can be considered for the promotion to the post of Inspector, Weights and Measures. The advice given by Law Department interprets Rule 9(2) (supra). The position was made clear by the Law Department way back in 1987. In my humble opinion, even if some Clerks were granted promotion to the post of Inspector by misconstruing Rule 9(2) (supra) it does not give any right to petitioner for parity. Any wrong decision cannot be precedent and cannot be made basis for parity. No other point is raised.

The petition is devoid of merit. Hence, the petition is dismissed with no order as to costs.