SUBHASH CHANDER Vs. STATE OF HARYANA

JUDGEMENT

(1.) PETITIONER has approached this Court, assailing the order dated 21.06.2010 (Annexure P -4), vide which the service appeal preferred by private respondent Nos.4 and 5 has been allowed, which has resulted in quashing of the order of promotion of the petitioner passed by the Deputy Commissioner, Sirsa, on 07.11.2009 (Annexure P -2).

(2.) PETITIONER as also respondent Nos.4 and 5 were working on the posts of Peons in the office of Deputy Commissioner, Sirsa. The Deputy Commissioner held a Hindi dictation test in which apart from the petitioner, the private respondents also participated. In the said test, the petitioner obtained 27 marks out of 30 whereas the private respondents obtained 3 and 19 marks respectively, which were much less than the petitioner. Since the petitioner had obtained higher marks in the test, which was conducted at the behest of the Deputy Commissioner, Sirsa, the petitioner was promoted in preference to respondent Nos.4 and 5, who otherwise were senior to the petitioner in the cadre of Peon. This action of the Deputy Commissioner, Sirsa, was challenged by the private respondents by preferring service appeal before the Commissioner, Hisar Division, Hisar, the result whereof is quashing of the promotion order of the petitioner dated 7.11.2009 (Annexure P -2) vide order dated 21.06.2010 (Annexure P -4).

(3.) THIS , the counsel for the petitioner contends is not sustainable in the light of the fact that there is no appeal maintainable before the Commissioner and the said appeal could not have been entertained by the said authority. His further submission is that the promotion is not merely dependent upon the seniority of the employee but is also relatable to the merit. He, in this regard, refers to Rule 7 of the Haryana Revenue Department District Subordinate (Group C) Service Rules, 1988 (for short, "the 1988 Rules"), which provides that the appointment to the service is dependent upon the qualification and experience as specified in Column No.3 of Appendix B to the 1988 Rules in case of direct recruitment and as specified in Column No.4 of the said appendix with regard to appointment by promotion. Method of recruitment has been provided in Rule 9, which, as per clause (i) deals with Clerks. 80% appointments have to be made by direct recruitment and remaining 20% by promotion from amongst Class IV and Class III employees of the service having scales less than those of Clerks and are otherwise eligible in accordance with the instructions issued by the Government from time to time. These 20% posts of Clerks have to be filled on the basis of seniority -cum -merit. Counsel contends that mere seniority is not to be looked into but the merit of the candidate has also to be assessed and for the said purpose, the Principal, on the behest of the Deputy Commissioner, had resorted to the process of holding a test of dictation of Hindi words to be written in long hand. As mentioned earlier, in the said test the petitioner and respondent Nos.4 and 5 obtained 27, 3 and 19 marks respectively out of 30 marks. Petitioner having secured higher marks than the private respondents and also being B.A, B.Ed. qualified, was promoted to the post of Clerk vide order dated 7.11.2009 (Annexure P -2). He contends that the process of holding the test for the purpose of determining the inter -se merit of the candidates eligible for promotion is fully justified and in this regard he has referred to the judgement of Hon'ble Supreme Court in the case of Rajendra Kumar Srivastava and others Vs. Samyut Kshetriya Gramin Bank and others, 2010 1 SCC 335. On the basis of the said judgement, he contends that the order passed by the Commissioner, Hisar Division, Hisar, although in any case not maintainable as there is no appeal provided under the statutory rules governing the service, on merits itself cannot be sustained. He, therefore, prays for settingaside of the impugned order dated 21.06.2010 (Annexure P -4) passed by the Commissioner, Hisar Division, Hisar -respondent No.2.