DINA NATH MEHTA Vs. FINANCIAL COMMISSIONER, REVENUE, PUNJAB

JUDGEMENT

(1.) Petitioner, Dina Nath Mehta, a Senior Assistant of the office of Commissioner, Patiala Division, Patiala, through present petition filed by him under Articles 226/227 of the Constitution of India, seeks a writ in the nature of certiorari so as to quash the order dated December 4, 1990 (Annexure P-1) issued by the respondent No. 2 as also the order issued by the Financial Commissioner-respondent No. 1, dated July 15, 1991 (Annexure P-2) as also the order dated June 15, 1992 (Annexure P-3). In the wake of setting aside of the orders aforesaid, his further prayer is to consider him for promotion to the post of Superintendent Grade-II.

(2.) Brief facts reveal that petitioner was appointed as Clerk in the D.C. office, Kapurthala on March 25, 1958. He was confirmed on the post aforesaid with effect from March 1, 1962 vide orders dated March 1, 1965. Respondent No. 3, Gurmail Singh, with whom the petitioner has dispute with regard to promotion to the post of Superintendent Grade-II, was appointed as Peon in November, 1974. At the time of his appointment, he was shown to have been belonging to general category and his promotion was not against any reserved seat. Petitioner was, however, promoted to the post of Assistant with effect from June 15, 1981 whereas respondent No. 3 came to occupy the said post i.e. of Assistant w.e.f. January 1, 1983. The promotional post from Assistant is that of Superintendent Grade-II and it is not disputed that one such post fell vacant on August 1, 1988. Respondent No. 3 staked his claim to the said post against reserved vacancy of a Backward Class candidate. His representation was, however, rejected vide order dated August 29, 1988. Being aggrieved, he filed an appeal before the Financial Commissioner-respondent No. 1 but during the pendency of the appeal, the desired relief was granted to respondent No. 3 and he was promoted to the post of Superintendent Grade-II. However, on successful result of his appeal, he was given the said promotion w.e.f. August 1, 1988 i.e. the date from which the post fell vacant. Since respondent No. 3 had secured promotion in the manner aforesaid, petitioner, who claims that he was senior and was actually senior to respondent No. 3, carried an appeal against the orders vide which respondent No. 3 was given promotion. This matter came up for decision before the Financial Commissioner and vide order (Annexure P-3) the appeal preferred by petitioner was dismissed. While rejecting the appeal of petitioner, the Financial Commissioner observed that it was evident from the record that point No. 15 of the Running Roster was reserved to be filled up by promoting a person belonging to Backward Class. The petitioner had failed to prove that being a general category candidate, he had superior claim for promotion against roster No. 15 which was reserved for Backward Class. It was further observed that petitioner had failed to prove that Gurmail Singh-respondent No. 3 did not belong to Backward Class. On the other hand the perusal of his service book evidenced that he belonged to the Backward Class and was recorded as such. The Financial Commissioner further observed that in view of the fact that appeal filed by Gurmail Singh had been allowed by his predecessor, the appeal preferred by petitioner had to be dismissed.

(3.) Mr. Tewari, learned counsel appearing for petitioner, has raised only two points that need determination by this Court. His first point is that simply because the appeal filed by respondent No. 3 was allowed, it would not mean that the appeal of petitioner carried no weight and as such had to be dismissed. His second contention is that under the service Rules, five rosters had to be maintained and by maintaining only one roster which indicates the promotion only on regular basis, the case of petitioner was prejudiced. With a view to further strengthen his contention, as mentioned above, it has been pleaded and so argued by learned counsel that four persons in the seniority list out of first fourteen were given only short term-ad hoc promotions and if these four persons were not to have been counted as promoted on regular basis, only ten persons would have been regularly promoted and therefore, the 11th point for promotion would have become available to the petitioner.