CD SHAD Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner was appointed as a Clerk on 17.12.1956 in the Office of Consulting Architect to Government, Punjab at Shimla. With effect from 1.1.1961, the office of Consulting Architect and the Senior Architect, Capital Project were merged and a new department of Architecture was created. As per the averments made in the petition, there were no statutory service rules governing the conditions of service of the Clerks and other staff of the department of Architecture. This fact has been admitted by the respondents.

(2.) The State of Punjab had issued executive instructions on 23.9.1957 followed by instructions dated 5.9.1958, laying down a condition that all Clerks were required to qualify the Assistant Grade Examination before they were promoted as Assistants on regular basis. In accordance with these instructions all Clerks in the Architecture department were required to qualify the Assistant Grade Examination for being considered for regular promotions as Assistants. Petitioner and respondents No. 3 and 4 (S/Shri Darshan and Om Parkash Kaura) sat in the test (known as Assistant Grade Examination). The petitioner qualified the test whereas respondents No. 3 and 4 failed to qualify the same. In view of qualifying the test, the petitioner was promoted as an Assistant on 20.2.1963, earlier than respondents No. 3 and 4 though he was junior to them as Clerk. Thereafter, the petitioner was further promoted as Superintendent on 5.2.1975 and was sent on deputation with the Chandigarh Administration.

(3.) Similar administrative instructions laying down a condition for the Clerks to qualify Assistant Grade Examination before they could be promoted on regular basis as Assistants in some other department came up for consideration before the Apex Court in State of Haryana and others vs. Shamsher Jang Bahadur and others, 1972 SLR 441, wherein the Apex Court struck down those instructions on the ground that the same ran counter to the statutory rules. Further the instructions changed the service conditions of the existing employees and the same could not be affected without the prior approval of the Central Government under the States Re-organisation Act, 1956. On the basis of the said judgment, the instructions, which governed the petitioner's case to which the reference has already been made above, were treated as non-est by the State Government and it was taken that the passing of the Assistant Grade Examination was not required for a Clerk to be promoted as an Assistant on regular basis. Some instructions were issued to that effect and on the basis of that the persons who were ignored for promotion as an Assistant or were promoted later on the ground that they had not passed the Assistant Grade Examination or had passed it later were treated and deemed to have been promoted from the date they were otherwise entitled to be promoted without passing the test. Respondent No. 3, Shri Darshan Singh, though was senior as a Clerk to the petitioner but, as observed above, was promoted as an Assistant later than the petitioner, having failed to qualify the Assistant Grade Examination, was restored his seniority as an Assistant by giving him a deeming date of promotion and the petitioner was reverted by an order dated 23.12.1978 which reads as under:-