Sutantar Kumar Airi vs State of Punjab and others

The instant writ petition has been filed, inter-alia, with the

prayer for issuance of appropriate writ, order or direction especially in the

nature of Certiorari for quashing the order dated 30.1.2017, which was

endorsed vide No. 3/41/2016-Ag. 1 (1)/1980-83, Chandigarh dated

31.1.2017 (Annexure P/10), whereby the respondent No.4, in the order of

extension has been given the (look after) charge of promotional post of

Director, which is contrary to the provisions of Punjab Civil Services Rules

(2nd Amendment) Rules, 2015, which provides as to how the extension can

be granted.

The petitioner is aggrieved against Annexure P/10 by which

extension in service has been granted to respondent No.4--Shri Jasbir

Singh Bains from 1.2.2017 to 31.1.2018 with (look after) charge of Director

Agriculture. In para 2 of the writ petition, it was submitted "but the

petitioner at the moment is aggrieved against the grant of look after charge

of the promotional post of Director to which the petitioner is fully eligible

and, therefore, the petitioner is restricting the pleadings concerning to the

said relief, which would be apparent from the narration of the factual

position, which would certainly show that undue favour is being given to

respondent No.4 at the official level and for that purpose, the Rules as well

as Instructions have been totally side tracked."

The claim of the petitioner further is that he joined the

Agriculture Department on 28.6.1982 through selection process held by the

Punjab Public Service Commission, Patiala, and after holding various posts,

he was ultimately promoted to the post of Joint Director Agriculture on

18.12.2015. It is contended that the Government of Punjab notified the rules

regulating the recruitment, and conditions of service of person appointed to

the Punjab Agricultural (Group-A) Services Rules, 2013 on 26.8.2013, in

which the post of Director Agriculture was to be filled up by 100% by

promotion from amongst the Joint Directors of the Agriculture of

administrative Wing/Cane Commissioner. It further provided that in case

the Government feels that no Joint Director of the Administrative Wing is

suitable on merit for promotion as Director, it shall then consider the Joint

Directors of the other Wings of the Department for promotion to the post of

Director Agriculture who have an experience of working as such for a

minimum period of 3 years. Since the rules have been promulgated, the

petitioner contends that he is only person who is entitled to to be promoted

on the post of Director Agriculture being the senior most Joint Director of

administrative wing. However, respondent No.4 has been given charge

(look after) to the post of Director Agriculture by the impugned, while

granting him extension in service. It is argued that the rules do not permit a

person to be promoted to a higher post while on extension.

Notice of motion was issued by this Court on 9.2.2017, while

granting interim prayer, by noting the contention of the petitioner, which is

reproduced as under:-

"Learned counsel for the petitioner contends that after superannuation on 31.01.2017 respondent No.4 Jasbir Singh Bains, who had retired as Joint Director, Agriculture, could not have been given look after charge of promotional post of Director, Agriculture during the period of his extension. Notice of motion returnable by 17.04.2017. Issue notice re: stay as well. Process dasti. In the meanwhile, effect of the impugned order to the extent of granting ''look after'' charge on the promotion post of Director, Agriculture is stayed till the next date of hearing."

An application has been filed by the learned counsel appearing

on behalf of respondent No.4 for vacation of the interim order on the ground

that there has been concealment of facts and misrepresentation in the writ

petition.

Mr. Puneet Jindal, learned Senior Counsel, assisted by Ms. N.A.

Mahajan, appearing on behalf of respondent No.4, contends that there has

been concealment of facts in the writ petition. It has been projected in the

writ petition as if Shri Jasbir Singh Bains--respondent No.4 was given the

(look after) charge of post of Director Agriculture by the impugned order

dated 30.1.2017, whereas the fact of the matter is that respondent No.4 was

already working on the post of Director with effect from 4.4.2016 and order

30.1.2017 (Annexure P/10) only granted him extension in service, which

would necessarily mean that he would continue to discharge duties of (look

after) the post of Director Agriculture, which had been entrusted to him as

far back as on 4.4.2016. It is argued that Annexure P/10, as translated,

would not reflect true order that was passed. It is further argued that the

petitioner''s claim to be promoted on the post of Director Agriculture under

the Rules of 2013 cannot be granted since a writ petition is pending before a

Division Bench of this Court i.e. CWP No. 7205 of 2001 whereby a

direction had been issued not to fill up the post of Director Agriculture on

regular basis, leaving it open to the Department to make "working

arrangement" till such regular appointment is made. It is also argued that

the petitioner would be aware of the order passed by this Court on account

of the fact that an arrangement was made to appoint the senior most person

in the Department to continue on the post of Director Agriculture.

I have heard learned counsel for the parties and with their

assistance gone through the record of the case.

The first issue that needs to be determined is, as to whether

there was misrepresentation on behalf of the petitioner and deliberate

concealment of true and correct facts, as alleged.

The entire tone and tenor in the writ petition which seeks to

challenge Annexure P/10 (in both the body and the prayer clause of the writ

petition) is as if respondent No.4 had been granted (look after) charge to the

post of Director Agriculture after extension was granted to him. For the

sake of clarity, it can be said that by the impugned order (Annexure P/10),

respondent No.4 on his extension had been given the higher post, that is to

(look after) the post of Director Agriculture. Learned counsel for the

petitioner urges that in para 11 of the writ petition, it is mentioned that

respondent No.4 was having look after charge, however, on superannuation

this charge has wrongly been given to him. It is argued that there no

concealment of this fact. However, this Court is of the opinion that the

pleadings, as made out in the writ petition, are not specific to substantiate

the plea that respondent No.4 had been given the (look after) charge as

Director Agriculture prior to his retirement.

In para 11, it is averred "However, while granting extension, he

has further been given the look after charge of Director Agriculture." A

plain reading of these averments would mean, that while granting extension

to respondent No.4, who was a Joint Director, he has also been given (look

after) charge of Director Agriculture, which is a higher post. The petitioner

ought to have brought to the notice of this Court that respondent No.4 prior

to his retirement had been given this charge as on 4.4.2016, which order was

not placed in the writ petition, for the reasons best known to the petitioner.

No doubt, the Punjab Civil Services (Second Amendment) Rules, 2015

clearly provides that a government employee, whose service is extended,

shall not be entitled to promotion; the benefit of Assured Career

Progression; an annual increment and any revision of pay made by the State

Government, but in the instant, case as has been brought on record,

respondent No.4 was not given promotion in the true sense during his

extension period. In fact, he was already working and discharging the duties

of Director Agriculture as far back as on 4.4.2016. This was on account of

the fact that no regular appointment to the post of Director Agriculture could

have been made by the Department by virtue of the stay order that had been

issued in CWP No. 7205 of 2001, which is still pending consideration.

Therefore, on account of working arrangement, the senior most Joint

Director at the relevant time was discharging the duties of Director

Agriculture. As per the written statement filed, one Gurdial Singh, Joint

Director Agriculture being the senior most was given the charge of Director

Agriculture and allowed to continue to hold the same post during his

extended service till his retirement i.e. on attaining the age of 60.

Admittedly, respondent No. 4, being the senior most was granted (look

after) charge of the post of Director Agriculture and thereafter extension

was granted to him.

Under orders of this Court, learned counsel for the petitioner

has placed on record another translated copy of Annexure P/10 which reads

as "Shri Jasbir Singh Bains, Joint Director Agriculture (look after) charge

of Director Agriculture, who was to retire on 31.1.2017, after attaining the

age of 58 years is hereby granted extension in services from 1.2.2017 to

31.1.2018." From another reflection of Annexure P/10, it is clear that the

impugned order only grants extension in service from 1.2.2017 to 31.1.2018

to Shri Jasbir Singh Bains, Joint Director Agriculture with (look after)

charge of Director Agriculture. The said order does not under any

circumstances promote Shri Jasbir Singh Bains to the post of Director

Agriculture, while on extension. He was already holding the charge of

Director Agriculture on the date he was to superannuate. Therefore,

amendment in the Punjab Civil Services (Second Amendment) Rules, 2015

specifying that no person would be granted promotion during the extension

period has not be violated in the instant writ petition. If the petitioner has

any grievance regarding promotion or the post held by respondent No.4, he

was always at liberty to move an appropriate application in the writ petition

which is pending before this Court and place before the said Bench the rules

that had been promulgated which specify that promotion to the post of

Director Agriculture be made by 100% by promotion from the post of Joint

Director Agriculture belonging to the administrative wing.

In view of the fact that respondent No.4, who was the senior

most in hierarchy, was already working on the post of Director Agriculture

and on extension he was only ordered to continue to hold the charge of

Director Agriculture and he was never promoted to the post of Director

Agriculture and there was no violation of the Punjab Civil Services Rules

(2nd Amendment) Rules, 2015, the interim stay granted by this Court is

hereby vacated and the writ petition is dismissed being bereft of merit.