LAWS(P&H)-1993-11-169

INDERJIT SINGH Vs. COMMISSIONER, PATIALA DIVISION

Decided On November 11, 1993
INDERJIT SINGH Appellant
V/S
Commissioner, Patiala Division Respondents

JUDGEMENT

(1.) Inderjit singh, Field Kanungo, claims mandamus in this petition filed under Articles 226 and 227 of the Constitution with direction to the official respondents - the Commissioner and the Collector, Patiala, for promoting him to the pot of Naib Tehsildar from the date persons junior to him were so promoted, the petitioner in January 1955 was appointed as patwari and posted at patiala. In 1959 he was transferred to the department of Consolidation of Holdings. The petitioner was promoted as Kanungo on October 27, 1986 considering his excellent record of service under the Punjab Kanungo Service (State Service Class III) Rules, 1976. He was promoted as Field Kanungo on January 1, 1988 and posted at Dudhan Sadhan district Patiala. On August 4, 1988, he was placed under suspension on account of being absent on August 4, 1988. Copy of the order is Annexure P.1 A charge-sheet was served upon the petitioner to which suitable reply was given. Ultimately the petitioner was ordered to be re-instated vide Annexure P.2-dated February 2, 1990 pending enquiry aforesaid. On re-instatement he was appointed as Kanugo Sales, Patiala. The decision with respect to the suspension period salary was to be taken after the enquiry. ON receipt of the enquiry report order Annexure P.3 was passed on July 26, 1990. The petitioner was exonerated in the enquiry. The suspension period was to be counted towards duty for all the purposes but he was not to draw anything more than the subsistence allowance already drawn during the period of suspension. The petitioner filed an appeal against the aforesaid order which was allowed vide order Annexure P.4 dated February 15, 1991, passed by the Commissioner, Patiala Division. The petitioner was held entitled to full salary and allowances for the period of suspension. In the meantime the petitioner was appointed by transfer as Kanungo SYL Patiala on May 15, 1990-annexure P.5. Vide order Annexure P.6 dated July 22, 1992 the petitioner who was working as Field Kanugo, Patiala, was transferred as Field Kanugo, Dudhan Sadhan. Since then he is working there as such. The allegation of the petitioner is that as per Rule 7 of the Punjab Naib Tehsildar (Class III) Service Rules, 1984, the petitioner possesses the requisite experience for the purposes of promotion to Naib Tehsildar which is of five years, out of which two years as Field Kanungo, if the period of suspension is also considered as such and thus, the petitioner was entitled to be considered for such promotion from the date persons junior to him were promoted. The promotion orders of the private respondents are Annexures P.8, P.9 and P.10. The representation filed by the petitioner claiming promotion as such is Annexure P.11. Written statement contesting the petition has been filed on behalf of the official respondents (respondent No. 1). The other respondents did not file any reply. However, on a miscellaneous application filed by the petitioner the names of respondents Nos. 3 and 4 Amarjit Singh and Sukhdev Singh who were promoted as Naib Tehsildars on September 1, 1992 vide order Annexure E8 were deleted. At this stage it may be observed that these two persons Amarjit Singh and Sukhdev Singh were otherwise eligible for promotion possessing requite qualifications and experience. Vide this order Annexure P.8 other respondents Avtar Singh.

(2.) Mukesh KUmar, Joginder Singh, Gurmit Singh and Harbhajan Singh were temporarily appointed as naib Tehsildars but they did not possess the requisite experience. They were appointed in their own pay-scales till tbey were to compete prescribed period of five years experience as Kanungo. Similar orders of promotion of Paramjit Singh and Jasbir Singh respondents Nos. 10 and 11 were passed vide order Annexure P.9. They were also not possessing the requisite 5 years experience. Harbhajan Singh was promoted vide order Annexure P.10 dated December 25, 1992.

(3.) The question for consideration is short with respect to consideration of the period of suspension towards the experience to make the petitioner eligible for promotion as Naib Tehsildar. If such period is considered as experience on the post from which he was suspended, he would be fulfilling the requisite qualification for promotion. The perusal of the orders Annexures P.3 and P.4 leaves no manner of doubt that the petitioner was exonerated in the enquiry and the fact of re-instatement was that he was deemed to be on duty entitled to all the salary and allowance. The stand of the official respondents that during the period of suspension the petitioner did not work as Field Kanungo and thus he lacked experience as such for two years to make him eligible for promotion, cannot be accepted. When the petitioner was exonerated in the enquiry it is to be taken that he was wrongly placed under suspension. The State cannot take benefit of their own wrong and thus deny promotion to the petitioner on that account The petitioner was entitled to be considered for promotion from the date persons junior to him were considered and appointed.