Vijay Kumar vs Housing Board Haryana and Others

Ranjit Singh, J.—The petitioner has filed this writ petition praying for writ of mandamus directing the respondents to consider his claim for promotion to the next higher post of Assistant Engineer in the quota fixed for degree holders/A.M.I.Es and for grant of any other relief''s.

The petitioner was appointed as Junior Engineer (Civil) by the respondent-Board on 22.11.1983. The petitioner, accordingly, joined the services on 1.12.1983. He passed the examination of A.M.I.E. Degree in Civil Engineering in June, 1989. The next promotion from the post of Junior Engineer is to the post of Assistant Engineer. The promotion is governed by the Rules known as Punjab Service of Engineers, Class-II, P.W.D. (Buildings and Roads Branch) Rules, 1965 (for short ''the Rules''). Rule 6 of the Rules deals with recruitment to service, which provides the manner and the source of the proportion of filling up the vacancies. The promotion/recruitment to the service is made either by way of direct appointment or by way of promotion from members of the Haryana PWD (B&R) Sectional Officers (Engineering) Service. The allocation of each source in the lot of 40 vacancies is given in this Rule. The qualifications are prescribed under Rule 7 and appointment by way of promotion is required by Rule 9 of the Rules. It is so averred in the petition that for the purpose of appointment/promotion to the post of Assistant Engineers, out of a lot of 40 posts, the A.M.I.Es./Degree Holders are allotted 4 posts/vacancies and the Diploma Holders are allotted 8 posts.

The respondent-Board has been making appointment/promotion to the post of Assistant Engineer by strictly following the roster and quota as provided in Rule 6 as noted above. The grievance is mat this exercise continued upto limited extent i.e. upto 40 vacancies and thereafter, the respondent-Board has never followed the roster nor has done the promotion as per quota fixed in Rule 6. The petitioner would aver that respondent-Board has been adopting the policy of pick and choose and in support has made reference to list of officers (Annexure P-l) so appointed to the posts of Assistant Engineers either by direct recruitment or by way of promotion. A perusal of the list shows that the diploma holders are allotted 8 posts/vacancies, but they are holding more posts than their quota, whereas degree holders/A.M.I.Es. to which the petitioner belongs, have been allocated 4 posts, but they are tailing short of their quota because of the policy of pick and choose adopted by the Board. Not only that the respondent-Board had recommended the names of three persons for promotion to the posts of Assistant Engineers, who were diploma holders, at the time of filing of this writ petition, but the claim of degree holders like the petitioner was ignored. Relying upon Annexure P-l, counsel for the petitioner contends that the Board has promoted 6 officers from the category of diploma holders whereas one person has been promoted from the category of degree holders. Thus, there are three vacancies, which are fallen to the share of degree holders, but all these posts have been given to diploma holders. At that time, degree holders were not available, which was not the situation at the time of filing of the writ petition. The persons like the petitioner were available for the promotions and there were vacancies. The petitioner made representation on 4.11.1993''and when no reply was received, he has filed this writ petition.

The grievance made by the petitioner is not seriously disputed by the respondents in the reply filed. After giving break up of the vacancies etc., it is stated that claim of the petitioner will be considered as and when quota meant for degree holders will become available in future. The prayer, accordingly, is made to dismiss the writ petition being premature.

During the pendency of this writ petition, the petitioner has filed Civil Miscellaneous No. 7103 of 2008 on 6.4.2008. The petitioner had prayed for grant of some ad interim relief. The reliance is made on Annexure P-2, which is on the basis of a representation made by NK Sahu, Junior Engineer. While dealing with the same, Financial Commissioner & Secretary to the Government Haryana, Housing Department had written to Chief Administrator, Housing Board Haryana to point out the anomalies in the manner of carrying out promotions meant for diploma holders and degree holders. A perusal of this communication would show that from the inception of the Board, 44 vacancies of Assistant Engineers from various categories were available. 30 vacancies were meant for direct recruitment, but only 23 vacancies have been filled in this category i.e. 7 vacancies less. There are 8 vacancies for diploma holders quota, whereas 14 vacancies have been filled in this category i.e. they are occupying 6 vacancies in excess. Two vacancies go to Draftsman quota, whereas 3 vacancies have been filled, which is one vacancy in excess.

From this, counsel for the petitioner would urge that there are already vacancies available, but the same have unfairly and arbitrarily been filled up from the diploma holder category, thus, depriving the right of the petitioner to consider for promotion. As per the counsel, the petitioner has a right to make a claim for promotion despite the averment in reply that the name of the petitioner shall be considered for quota posts meant as and when these become available in future. Nothing has been done from the year 1993 till date. 18 years is a too long period requiring the person to wait for promotion. This aspect is further required to be appreciated in the background that the posts meant for promotion are available, but have been filled from a quota of diploma holders. The communication of Financial Commissioner clearly indicates mat the quota meant for degree holders has been filled up and given to diploma holders. This certainly leads to depriving the petitioner of his legitimate rights to ask for promotion if he is otherwise suitable. No objection has been raised in the reply filed that the petitioner has been considered and found not suitable for promotion. In the reply, which was filed in the year 1994, the post meant for degree holders have continuously been occupied by the diploma holders. This position cannot be termed as fair. The respondents must make amends and grant their legitimate rights to all the persons.

In view of the factual position as noticed above, a case is made out for direction to the respondents to consider the claim of the petitioner. No one has appeared for the Housing Board to make submissions as to why the case of the petitioner for grant of promotion has not been considered. It would be unfair to allow such a situation to continue. It is not that posts are not available. The available posts have been filled from the wrong quota, which is in violation of the Rules. A direction, therefore, is issued to the respondents to consider the claim of the petitioner for promotion within a period of three months from the date of receipt of certified copy of this order. If the petitioner is considered otherwise suitable for promotion, he shall be granted promotion against the posts occupied by respondent Nos.3 & 4, who were promoted though were diploma holders against the posts meant for degree holders. The necessary consequences would also be allowed to the petitioner in accordance with law.

The writ petition is, accordingly allowed.