Sukhbir Singh vs State of Punjab

Rajesh Bindal, J.—The petitioner, who was discharged from Army on account of disability in operation "VIJAY" held in Kargil, (J&K), has approached this Court impugning the order dated 06.05.2011/03.06.2011 (Annexure, P-4), whereby his claim for promotion from the post of Senior Assistant to Superintendent Grade-II, has been rejected. Learned counsel for the petitioner submitted that the petitioner was serving in Army. He got seriously injured in Kargil War in operation "VIJAY" and was discharged from service. In terms of the policy dated 19.08.1999 issued by the State for appointments of Honour and Gratitude in the State Class-III and Class-IV service to the dependent members of the families of the War Heroes, the petitioner was offered appointment on the post of Senior Assistant in the office of District Sainik Welfare Officer, Amritsar vide letter dated 22.07.2002. War Heroes were offered appointments in terms of the policy including the persons, who are disabled while fighting War declared by the Government of India in Operation "VIJAY" at Kargil. Ever since, the petitioner was appointed, he was serving satisfactorily in the Department. As per the terms of the appointment, service of the petitioner is governed by Punjab Sainik Welfare (Class-III) Services Rules 1987 (for short "the Rules"), in terms of which on completion of eight years of service as Senior Assistant, the person is eligible to be considered for promotion to the post of Superintendent Grade-II. Though the petitioner has completed more than eight years of service, but has not been considered for promotion as Superintendent Grade-II, which is to be filled up by way of promotion. Representation made by the petitioner claiming promotion was rejected by the authority on the ground that in the Rules there is no provision for promotion of Senior Assistant by way of direct recruitment and the proposal has been sent to the Government regarding adjustment of directly recruited Senior Assistant, under Honour and Gratitude and for creating a separate cadre for them. While referring to Clause 15 of the policy, learned counsel for the petitioner submitted that it has been specifically provided therein that in case no vacancy exists in a particular office/department, a new post of direct quota will stand automatically created as temporary addition to the cadre and will be adjusted as and when next vacancy in that office/department of direct quota occurs. He further submitted that even if all the posts of Senior Assistant in the Department in terms of the Rules were to be filled up by way of promotion, as per the policy one post in the direct recruit quota stood automatically created and petitioner will be deemed to have been appointed against that post. He having satisfactory worked in the District Sainik Welfare Department as Senior Assistant for more than eight years, is fully eligible for promotion as Superintendent Grade-II.

On the other hand, contention of the learned counsel for the State is that as per the Rules all the posts of Senior Assistant were to be filled by way of promotion from Clerks and Welfare workers having a minimum five years experience. There is no post meant for direct recruitment quota, hence, appointment of the petitioner as Senior Assistant in the Department is not in terms of the Rules. As there is no quota prescribed in the Rules the petitioner is not entitled to promotion. He further submitted that the rules for taking care of such like appointments are still under finalization. He further submitted that even as per the Clause 15 of the policy an employee, who is appointed in a Department, where no vacancy exists and a new post is automatically created as temporary addition to adjust such an employee will be only against the next vacancy in that office/department against direct quota. As in the present case, till date there is no vacancy in the direct quota in the Department, the petitioner cannot be adjusted.

Heard learned counsel for the parties and perused the paper book.

The fact that the petitioner was serving in Army and was discharged on account of disability-suffered by him during Kargil War, named as operation "VIJAY" is not in dispute. The Government had issued a policy on 19.08.1999 providing employment to the dependents of the War Heroes, who suffered disability in the War. The petitioner being eligible under the policy was offered appointment as Senior Assistant in the office of Punjab Sainik Welfare Department on 22.07.2002. It was in terms of the decision taken in a committee presided over by Chief Secretary, Punjab held on 26.06.2002. It has specifically been mentioned in the letter of appointment of the petitioner that service of the petitioner is to be governed by the Rules. As a consequence of the aforesaid appointment, the petitioner joined his service on 22.07.2002 and is working as Senior Assistant since then. The claim of the petitioner is that he deserves to be considered for promotion as Superintendent Grade-II having got experience of more than eight years while working as Senior Assistant. All the posts of Superintendent Grade-II are required to be filled up by way of promotion in terms of the Rules.

A perusal of the Rules shows that all the posts of Senior Assistant were to be filled up by way of promotion from Clerks and Welfare Workers and in the Rules there is no post meant for direct recruitment. However, still it cannot be presumed that the Government while offering appointment to the petitioner as Senior Assistant in the Punjab Sainik Welfare Department was not aware of this fact. Clause 15 of the policy, which is extracted below, in fact takes care of such situation:-

"15. Efforts would be made to provide a suitable job in each case against existing vacancies. However, even if no vacancy exists in a particular office/department and it is decided by the said Committee/Deputy Commissioner to offer a suitable job in that Office/Department, a new post of direct quota will stand automatically created as temporary addition to the cadre and will be adjusted as and when next vacancy in that office/department of direct quota occurs."

(emphasis supplied)

In terms thereof even if in a Department there is no vacancy and the appointing authority decided to offer a suitable job to a person in that Department, a new post of direct quota will stand automatically created as temporary addition to the cadre and will be adjusted as and when next vacancy in that department of direct quota occurs. Till date no amendment has been made in the Rules. On April 4, 2013, learned counsel for the State submitted that the proposal for amendment in the Rules, which was sent to the Government, is pending for finalization since July, 2009. Despite adjournment, till today stand is that the Rules have not been finalized. As clause 15 of the policy clearly provides that even in a Department, where, no post exists and an incumbent has been appointed, a new post of direct recruit quota shall stand automatically created as temporary addition in the cadre, the appointment of the petitioner shall be considered against the newly created post under that Clause of the policy. An employee cannot be made to suffer because the State is sleeping in the matter of finalization of the Rules. Other similarly situated persons, who may have been offered appointment in different Departments, in terms of the policy may also be facing the same problem. The petitioner is working on the post of Senior Assistant for the last more than 10 years without any promotion. The Rules clearly provide that Senior Assistant having eight years experience is entitled to be considered for promotion as Superintendent Grade-II. In terms of the Clause of the policy the petitioner is deemed to be appointed on a newly created post of Senior Assistant against direct recruit quota in the department in question and will be considered as part of the cadre in terms of the policy. The action of the authority is not considering his claim for promotion as Superintendent Grade-II after completion of more than eight years of service, is clearly arbitrary, hence, the action of the respondents, is set aside and it is directed that the case of the petitioner along with any other person, who may be eligible for promotion to the post of Superintendent Grade-II from Senior Assistant be considered for promotion.

The needful be done within three months.

The writ petition stands disposed of.