Surinder K. Gupta vs State of Punjab and Others

Augustine George Masih, J.—Petitioner has approached this Court praying for issuance of a writ of mandamus directing the respondents to consider and promote the petitioner to the post of Naib Tehsildar from the date his juniors were promoted to the said post. It is the contention of the counsel for the petitioner that next promotion of Clerk is as Senior Assistant. After promotion to the post of Senior Assistant it is the discretion of the Deputy Commissioner, who is competent authority to post such an officer as a District Revenue Accountant, Sub Divisional Accountant, Assistant Sub Divisional Accountant, Tehsil Accountant or Reader to the SDM/District Magistrate. Accordingly, The Deputy Commissioner posted the petitioner as Sub Divisional Accountant in January, 1990. As per notification dated 30.3.1998 (Annexure P-3) clause (e) has been inserted in the Punjab Naib Tehsildars Departmental Examination Regulations 1984, wherein the post of Sub Divisional Accounts has also been included to be one which would be eligible for taking examination for promotion to the post of Naib Tehsildar. Petitioner qualified the test in the year 1995-96. Vide CWP No. 13306 petitioner earlier challenged Regulation 7 of the Punjab Naib Tehsildars Departmental Examination Regulations, 1984, on the ground that it did not include the post of Sub Divisional Accountant to be eligible for taking the departmental examination for promotion to the post of Naib Tehsildar and the said writ petition was allowed by this Court and on the basis of the order passed by this Court in CWP No. 13306 of 1993 on 17.7.1995, notification dated 30.3.1998 (Annexure P-3) was issued. He contends that after the petitioner having become eligible for consideration for promotion to the post, firstly for taking the test, obviously the natural sequence would be that if such an employee passes the departmental test, he has to be considered for promotion to the post of Naib Tehsildar.

Claim of the petitioner for promotion is only being denied on the ground that the post held by the petitioner i.e. Sub Divisional Accountant, does not find mention in Rule 7 in the Punjab Naib Tehsildar (Class-III) Service Rules, 1984. This, the counsel of the petitioner, contends cannot sustain in the light of the notification dated 30.3.1998 (Annexure P-3), which defines the eligibility of an employee to take the departmental test for promotion to the post of Naib Tehsildar. Reference has also been made to a similar matter wherein this Court dealt with such a proposition and had proceeded to grant promotion to an employee who was also similarly placed like the petitioner by giving a finding that all Senior Assistants are posted at the discretion of the Deputy Commissioner posted as District Revenue Accountants, Senior Revenue Accountants, Sub Divisional Accountants etc. are borne on a common seniority list and the posts carry the same scale of pay can be considered for promotion to the post of Naib Tehsildar, if they pass the departmental test. Copy of the said judgment (CWP No. 13674 of 1996 Khush Bhagat Rai v. State of Punjab and others) is annexed with the writ petition as Annexure P-2. He, on this basis, contends that the present writ petition deserves to be allowed.

On the other hand, counsel for the respondents, submits that the petitioner cannot be promoted to the post of Naib Tehsildar as the post held by the petitioner does not find mention in Rule 7 of the Punjab Naib Tehsildar (Class-III) Service Rules, 1984. He contends that in the absence of the mention of post on which the petitioner is serving for being considered for promotion as Naib Tehsildar, promotion cannot be granted to him as the qualifications are prescribed under the said Rule. He, therefore, contends that the action of the respondents is in accordance with law and does not call for any interference by this Court.

I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.

Admitted position is that the petitioner stands appointed and posted as Sub Divisional Accountant in January, 1990 at the discretion of the Deputy Commissioner. It is not in dispute that the post of District Revenue Accountant, Senior Revenue Accountant, Sub Divisional Accountant, Assistant Sub Divisional Accountant and the Readers are borne on a common joint seniority list. The pay scales of these posts are also the same. In the light of this fact merely because a person who has been promoted as Senior Assistant is posted at the discretion of the Deputy Commissioner on a particular post cannot merely because of the nomenclature of the said post be denied promotion to the post of Naib Tehsildar, especially when as per Regulation 7 of the Punjab Naib Tehsildars Departmental Examination Regulations, 1984, which has been framed in exercise of power conferred under Rule 24 of the Punjab Naib Tehsildars (Class-III) Service Rules, 1984, makes the post held by the petitioner also eligible for taking the Naib Tehsildar''s departmental examination, passing of which is an essential qualification for consideration for promotion, apart from holding an experience of five years as Senior Assistant or a District Revenue Accountant as is apparent from Rule 7 of the Punjab Naib Tehsildar (Class-III) Service Rules, 1984. Since, all these posts including Senior Revenue Accountants and District Revenue Accountants are borne on the common seniority list, it cannot be said that merely because such a post is not mentioned in the statutory Rules, a person holding such post would not be eligible for promotion to the post of Naib Tehsildar, although, he might have passed the required departmental examination and would have also served for more than five years on the post. If such a recourse is adopted that would amount to violation of Articles 14 & 16 of the Constitution of India.

The judgment passed by this Court in CWP No. 13306 of 1993 titled Harbans Lal v. State of Punjab and others decided on 17.7.1995, which has been quoted with approval by the Division Bench of this Court in Khush Bhagat Rai''s case (supra), clarifies this position. The claim of the petitioner, thus, being covered by the ratio of this judgment, the present writ petition deserves to be allowed as the action of the respondents denying promotion to the petitioner merely because the said post does not find mention under the Statutory Rules cannot legally sustain. In view of the above, the present writ petition is allowed. Directions are issued to the respondents to consider the claim of the petitioner for promotion to the post of Naib Tehsildar from the date his juniors have been promoted to the post of Naib Tehsildars. This exercise be completed within a period of two months from the date of receipt of certified copy of the order.