JOGINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Petitioners Joginder Singh and Sarwan Kumar through the present petition filed by them under Articles 226/227 of the Constitution of India seek a writ in the nature of Certiorari for quashing the order dated 2.4.1991 (Annexure P-4) vide which respondent No.4 was promoted to the post of Circle Head Draftsmen. They also seek a writ in the nature of mandamus that they be considered for promotion to the post s of Circle Head Draftsman against two vacancies which according to them fell vacant in the year 1991.

(2.) The factual background on which the relief referred to above is sought to be made out is that petitioner No.l joined the P.W.D. Public Health Branch as a Tracer in the year 1969 on temporary basis. Petitioner No.2 joined the post of Draftsman in the same very department. Petitioner No.l was promoted as Assistant Draftsman in the year 1970. He was further promoted to the post of Divisional Head Draftsman with effect from 26.11.1975. He was later sent on deputation to the Punjab Water Supply and Sewerage Board on 26.5.1978. Petitioner No.2 was promoted to the post of Head Draftsman on 7.4.1976. However, during the year 1979 he was transferred to Public Health Division Moga where he served upto the year 1981. On 6.9.1981, he was sent back to his parent department and was posted as Head Draftsman in the office of Executive Engineer, Public Health Division. It is pleaded that the total cadre strength of Circle Head Draftsman in the P.W.D. Public Health branch is 16 out of which six posts are in the Head Office at Patiala while ten posts are in the field offices, but none of the members of Scheduled Castes/Scheduled Tribes has been appointed against the quota reserved for the members of these communities. As per instructions of the State Government vacancies at Sr. No. 1,6,11,16 have to go to the members of the Scheduled Castes/Scheduled Tribes. It is further pleaded that out of four reserved seats, three persons nrmely Sarvshri Surjit Singh, Ajaib Singh and Sarwan Ram were promoted as Circle Head Draftsman. In the year 1982, both Surjit Singh and Ajaib Singh were further promoted to the posts of Sub Divisional engineer while Sarwan Ram was promoted as such in the year 1991. Vacancies fell vacant for the reserved category in the year 1982 out the same were given to the members of the general category. Again in the year 1991, third vacancy fell vacant and the member of the reserved category ought to have been adjusted against the said post. In so far as 4th vacancy belonging to the reserved category it is stated that the same was never filled by the respondent-authorities. The petitioners made representations to the respondent-authorities stating therein that they be considered against the vacancies reserved for scheduled castes/Scheduled tribes but the same brought no tangible results. It is in the wake of the circumstances referred to above that the petitioner filed C.W.P. No. 9661 of 1989. While disposing of the said petition today itself, it has been observed that the same has become infructuous because of the stand of the respondents that as and when any regular vacancy occurs in the category of scheduled castes/scheduled tribes, the petitioners shall be considered according to their seniority, during the pendency of the said writ petition respondent No.4 was promoted and it is the case of the petitioners that they were not considered which necessitated them to file the present writ petition. Obviously, the case of the petitioners is that they have not been considered for the post given to respondent No.4 and that in accordance with the roster points it was their turn i.e. turn of scheduled caste/scheduled tribes candidates. The matter has been contested and two identifical written statements have been filed, one by the State and other by private respondents. It has been pleaded that petitioner No.l came to occupy the post of Asstt. Draftsman in the year 1970 and he was promoted as head Draftsman in 1975. Petitioner no.2 occupied the post of Draftsman in 1970 and was promoted as head Draftsman in the year 1976. Respondent No.4 came to occupy the post of Draftsman on 25.8.1964 and was promoted to the post of Head Draftsman on 26.2.1971. He was further promoted to the post of Circle Head Draftsman,on 11.5.1977. In accordance with the policy Annexure P-3, governing promotion, a Head Draftsman should have an experience of five years on the said post before he could be considered for promotion to the post of Circle Head Draftsman. On the date when respondent No.4 was promoted, it is pleaded that none of the petitioners had requisite experience of five years on the post of Head Draftsman and that being so irrespective of their reserved roster points, they could not secure promotion over and above respondent No. 4 on the said date. It is further the case of respondents that even though respondent No.4 was promoted in May, 1977, the fresh order promoting him in 1991 (Annexure P-4/2) subject matter of challenge in this petition came to be passed on account of the fact that respondent No.4, had filed civil writ petition No. 6718 of 1987 seeking his promotion over and above respondents Nos. 3 to 5 of the said case on the ground that their selection being on the same date and he having been shown higher in merit from respondents 3 to 5, he ought to have....ranked senior to them. It is in that petition that the motion bench had stayed reversion of the petitioner i.e. respondent No.4 in "this writ petition. In asmuch as two persons of the department who were senior to respondent No.4 and had gone on deputation came back, government moved an application for vacation of stay in the said case and the learned Bench dealing with the matter on admitted facts that respondent No.4 was junior to deputationists vacated the stay on 19.3.1991. However, while disposing of the stay application it was observed by the learned Judge that no person junior to respondent No.4 shall be promoted to the post of Circle Head Draftsman. It is in the wake of the facts and circumstances of the case that it became necessary to revert the petitioner and inasmuch as he was senior most Divisional Head Draftsman and meanwhile other post had fallen vacant that he was again promotee vide impugned order Annexure P-4 within a gap of only two days from the date he was reverted. It is thus the case of the respondents that respondent No.4 had been promoted in 1977 on which date none of the petitioners was eligible for promotion to the post under contention. It is alternatively argued that assuming that a post fell vacant in 1991. When respondent No.4 was promoted, then also the petitioners can not be promoted as respondent No.4 was only accommodated against a short term vacancy. There are two rosters which are maintained, one with regard to regular appointments and the other with regard to short appointments. The contents of the written statement filed in both the petitions i.e. C.W.P. No. 9661 of 1989 and C.W.P. No. 737 of 1992 reveal that when only short term vacancies become available, the same are filled in accordance with roster system. According to short term roster register, 7th point had been consumed. The point at Sr. No.2 was consumed by Ajaib Singh and 6th point of roster was consumed by Sarwan Ram who is still continuing. It is, thus, the case of the respondents that in short term roster vacancies the petitioners could not be considered when respondent No.4 had been promoted. It is further the case of the respondents that the petitioners can not stake claim over and above the candidates i.e. scheduled caste/scheduled tribe category who are still awaiting promotion to the post under contention and who senior to them and the case of the petitioners will come up for consideration after their seniors are promoted.

(3.) After hearing the learned Assistant Advocate General and Mr. Anil Malhotra counsel for respondent No.4 and going through the records of the case, there does not appear to be any substance in the writ petition and in considered view of this Court, it deserves to be dismissed. Nothing has been bro tht on the record to show as to when the vacancies in which respondeat No.4 was adjusted by way of promotion occurred. Assuming that the same became available when the petitioners did not have the requisite experience on the lower post, obviously they had no right for being considered against the said post. It requires to be mentioned that the learned counsel for the petitioners while this case was earlier argued on 6.5.1994 had sought adjournment to amend the petition but till date, no amended petition has been brought on record. It may be clarified that order dated 6.5.1994 does not show that the matter was adjourned enabling the petitioner to amend the writ petition but the learned counsel appearing for the respondents vehemently contend that it was precisely for showing the date when vacancy occurred that the Counsel for the petitioner has sought adjournment in the matter. However, the year when the vacancy become available against which respondent No.4 was appointed would pale into complete insignificance in view of the other points projected by the respondents as have been noticed above. It is the positive stand of the respondents that two rosters are maintained, one for regular appointments/promotions and the other for short appointments/promotions. In so far as short term appointments are concerned against which alone respondent No.4 was considered and actually promoted, all roster points meant for scheduled castes/scheduled tribes stood exhausted. It is positive case of the respondents in the written statement that respondent No.4 was promoted against a vacancy which was a short term one and senior to petitioners in the same category are still awaiting promotion.