SUBHASH CHANDER DUREJA Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner, Shri S.C. Dureja, was appointed to the Haryana Civil Service (Judicial Branch) on 5th June, 1971 and was posted as Sub Judge IIIrd Class and in due course was conferred the powers of Sub Judge IInd Class, Sub Judge 1st Class, Chief Judicial Magistrate and was appointed as Senior Sub Judge on 20th June, 1985. Vide orders of the State Government dated 25th April, 1988 and published in the Gazette on 3rd May, 1988, Annexure P-l to the petition, he was appointed by promotion as officiating Addl. District and Sessions Judge in the State of Haryana by virtue of the powers conferred on the State Government under Rule 8 of the Punjab Superior Judicial Service Rules, 1963 as applicable to the State of Haryana (hereinafter referred to as 'the Rules') with the rider that "the promotion was subject to the condition that in the annual confidential reports for the years 1986-87 and 1987-88 in respect of the promotees their integrity is not doubted and these are not to be less than B plus (Good)". It appears that subsequent to the order of promotion Annexure PI two annual Confidential Reports i.e. for the years 1986-87 and 1987-88 were subsequently recorded in which the grading given to the petitioner was B (satisfactory) the former report being apparently recorded on the basis of an Inspection Note Annexure R-2/II which had been written by justice I.S. Tiwana, on 28 the August, 1987. The inspection remarks was a conveyed to the petitioner on 17th September 1987 vide Annexure P-2 and the assessment made thereon i.e. B (satisfactory) vide Annexure P-3 dated 1.11.1988. Aggrieved by the assessment and the gradation given, the petitioner filed a representation before the High Court Annexure P-4 dated 9.12.1988 but the same was rejected on 9.11.1989. The petitioner was also assessed as B (satisfactory) for the year 1987-88 and these remarks top were conveyed to him through Annexure P-5 dated 10.4.1990. Against these remarks be filed a representation annexure P-6 dated 223.1990 and the same was rejected vide Annexure P7 dated 17.8.1990. As the petitioner had failed to get B plus in the annual confidential reports for the years 1986-87 and 1987-88 as per the rider put in Annexure P1 the order of promotion, he was reverted and posted as Sub Judge-cum- Judicial Magistrate 1st Class under order Annexure P-ll, dated 20.11.1990. He thereafter filed a representation Annexure P-ll/A dated 26.11.1990 against the order of reversion before the High Court, but to no effect. This petition has been filed praying that Annexure P-3 dated 1.11.1988 conveying the remarks for the year 1986-87, Annexure P-5 dated 10.4.1990 conveying those for the year 1987-88 and the order of reversion Annexure P-ll dated 20th November, 1990 be quashed primarily on the ground that rule 8 required that promotion to the service was to be made exclusively on the basis of seniority and as such the instructions annexure R-2/1 which had provided for, in addition, an element of selection as well could not be sustained. Elaborating this argument Mr. Rajiv Atma Ram learned counsel for the petitioner, urged that if a further requirement that an officer was required to have B plus or above assessment so as to be eligible for promotion was to be enforced the Court found that there was a gap in the rules, the same could be filled in by executive instructions which could be issued by the Government alone being the rule making authority and that the High Court was, therefore,not competent to issue the instructions Annexure R-2/a. Reliance for this proposition has been placed by Mr. Rajiv Atma Ram on State of Haryana and others vs.Shamsher Singh Bahadur and others, 1972 SLR 441 and Sardul Singh Head Constable vs. Inspector General of Police, Punjab and others, 1970 SLR 505

(2.) The stand of Mr. J.S. Khehar, learned counsel for respondents, however, is that admittedly it was the High Court which was the selecting body and only the formality of appointment lay with the State Government and, as such, it was only proper that the High Court lay down its own guidelines so as to ensure that the criteria for promotion was uniformly applied so that the officers who could seek promotion were of a certain standard. In the alternative, it has been pleaded by Mr. Khehar that even assuming that the instructions Annexure R-2/1 could be issued by the Government alone yet it could be presumed that the government had themselves accepted them as they had been acted upon right from the date of their issuance in the year 1969. I have heard the learned counsel for the parties in this aspect. Rules 8,9 and 14 of the Rules are reproduced below;-

(3.) There is another aspect which comes to mind. Admittedly, the instructions have been acted upon without demur by the government since 1969, and all promotions have been made on that basis. I am, therefore, of the view that an element of acquiescence comes in and even accepting that the government alone was competent to issue these instructions, yet by the passage of time, they can well be deemed to have accepted as valid by the government.