TARLOK SINGH BATRA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Tarlok Singh Batra and another, who are Superintendent Grade-II and Senior Assistant, respectively in the office of Advocate General, Punjab, through present petition filed by them under Articles 226/227 of the Constitution of India, seek a direction to be issued to the respondents to promote them to the posts of Superintendent Grade-I and Superintendent Grade II, respectively as also to set aside the order, Annexure P-3, dated December 20, 1989 vide which respondent No. 3, Mohan Singh, an Assistant, was promoted as Superintendent Grade-I.

(2.) The brief facts, on which the relief aforesaid tests, reveal that petitioner No. 1 was appointed in the office of the Advocate General, Punjab in the year 1964 as Clerk on ad hoc basis and was regularised in November, 1965 on the said post. Petitioner No. 2 was appointed as Clerk straightaway on regular basis on November 16, 1965, Respondent No. 3 who belongs to Scheduled Caste, was appointed as Clerk on December 15, 1967 on the reserved vacancy of Scheduled Caste. Petitioners were promoted as Assistants with effect from August 23, 1969 and were confirmed on the said post with the effect from December 19, 1974. They were granted selection grade in the office of the respondent No. 2 whereas respondent No. 3 was promoted as Assistant on October 20, 1973 on a reserve vacancy of Scheduled Caste by superseding three clerks of the general category, namely, Karam Singh, Jagbir Singh and Ram Parkash. Respondent No. 3 was, however, confirmed as Clerk w.e.f. December 20, 1974 and thereafter as Assistant on October 30, 1980. In the manner aforesaid, it is pleaded that petitioners are senior to respondent No. 3 and the fact aforesaid is also reflected in the seniority list, Annexure P-1. Prior to February 23, 1977, the office of Advocate-General, Punjab was 'B' class office and there were posts of Head Clerk, Assistants, Stenographer, Clerks and Restorers as sanctioned by the Government and provided the Rules called 'The Punjab Advocate General's Office Class III Service Rules, 1965. Thereafter, post of Personal Assistant was kept in abeyance and in its place. A post of Superintendent was sanctioned by the Government vide letter dated June 2, 1970. This post was abolished on August 17, 1970 while reviving the post of Personal Assistant. Again on November 20, 1970, the post of Superintendent was revived while keeping the post of Personal Assistant in abeyance and was made permanent subsequently in April, 1974. In the manner aforesaid, it is pleaded that in the year 1970, there was one post of Superintendent, Head Assistant, Personal Assistant and 12 posts of Assistants and Clerks. The promotion of the post of Superintendent was to be made from Head Clerk/Head Assistant and the Head Clerk/Head Assistant was to be promoted from the Assistants. The post of Head Assistant was upgrade to that of Superintendent w.e.f. July 15, 1975. However, on February 23, 1977, the office of the Advocate General, Punjab was upgraded from 'B' class to 'A' class office having the post of Superintendent which was later on categorised as Superintendent Grade-I in the pay scale of Rs. 825-1580/- which was revised and the present pay scale of the Superintendent Grade I is Rs. 2,000-3,500. The unrevised pay scale of the Superintendent Grade-II was Rs. 800-2,400/-. Prior to the promotion of respondent No. 3 that has been challenged in the present petition, he was given promotion to the post of Incharge, Copying Branch against the reserved quota which post was having a special pay of Rs. 15/- per month over and above the pay of Clerk by superseding a number of persons of the general category. Aker the upgradation of the office of respondent No. 2, a post of Superintendent Grade-II was created by the Government vide its order dated July 16, 1987 and petitioner No. 1, being the seniormost Assistant in the selection grade, was promoted to the said post of Superintendent Grade II on July 31, 1987. Prior to 1975, there was one post of Superintendent, which is now known as Superintendent Grade-I, which was a non-reserved post being a solitary post. Thereafter, in 1975 another post of Superintendent was created by upgrading the post of Head Assistant/Head Clerk. In the manner aforesaid, it is pleaded that the incumbent who was already working as Head Assistant/Head Clerk became the Superintendent now known as Superintendent Grade-I. The first vacancy of Superintendent Grade-I occurred in July, 1980 on the retirement of Shiv Kumar Sharma which was filled up by promotion of the seniormost Assistant, Harnam Singh, as no suitable candidate of Scheduled Caste was available. It is also pleaded that the first vacancy could not got to reserved category being a cadre of only two posts of Superintendent Grade-I. Further, the next vacancy became available in 1982 and once again Lachhman Dass was promoted against that post which was in fact a second point roster and as per recording scheduled caste candidate was available. The third vacancy which could at the most be taken as carry- forward rule occurred in July, 1983 and it was given to a general category candidate by promoting Mohinder Singh, seniormost Assistant as on suitable Scheduled Caste candidate was available. The forth vacancy occurred in 1986 which too was filled up by promoting as Assistant of general category, namely, Gurdev Singh Dhaliwal. Again on November 7, 1989, a vacancy of Superintendent Grade I became available for promotion on account of promotion of Shri Gurdev Singh Dhaliwal Superintendent Grade I on previsional basis and the petitioners alongwith other eligible persons were called to represent their claim for promotion. Petitioner No. 1 claimed promotion on the post under contention being seniormost, that is of Superintendent Grade-I. The cadre of Superintendent Grade-I is only of two posts. Petitioner No. 1 pleaded in support of his claim for promotion that the cadre being only of two posts, it could not be allocated to a candidate of reserved category as that would tantamount to 50% reservation which is contrary to the instructions of the Government as also against the ratio of decision in Joginder Singh Sethi v. State of Punjab and ors., 1982 2 SLR 307. He further stated that the reservation in Class III for promotion is fixed by the Government upto 20% for the Scheduled Caste and 2% for the Backward Classes and, therefore, as well there could be no reservation in a cadre of two posts. Petitioner No. 2, who was senior-most Assistant in selection grade, also staked his claim on parity of same reasoning, and further stated that in case petitioner No. 1 was promoted to the post of Superintendent Grade I, he was entitled to promotion to the post of Superintendent Grade II being solitary post on which a person of Scheduled Caste category could not be accommodated. He further pleaded that even otherwise the reserved vacancy could be carried forward upto two subsequent years in case no suitable person was available and inasmuch as the vacancy of Superintendent Grade I occurred for the first time for Promotion in the year 1980 it could not be carried forward in the recruitment year 1982 and 1983 when in those years also no suitable candidate of scheduled caste was available.

(3.) Inasmuch as petitioner No. 1 was apprehensive of his claim being ignored by the Deputy Advocate General, Punjab, as it was likely that respondent No. 3 would be promoted, he submitted representation on December 13, 1989. The said representation was rejected. Considering the vacancy at reserved roster point, respondent No. 3-Mohan Singh was promoted on provisional basis vide order dated December 20, 1989. Ignoring the claim of petitioners and favouring respondent No. 3 to the promoted post is challenged in the present petition and Mr. Chopra, learned counsel appearing on behalf of petitioners vehemently contends that Advocate-General, Punjab, has given double promotion to respondent No. 3 from the post of Assistant to the post of Superintendent Grade-I by ignoring the claim of his senior Assistants and Superintendent Grade-II, who were eligible and suitable for the post of Superintendent Grade-I. It is also contended that the action of respondent No. 2 in considering the vacancy of Superintendent Grade-I as reserved for Scheduled Caste category is illegal and contrary to the instructions issued from time to time making the reservation of posts for Scheduled Caste to the extent of 20%. The cadre of Superintendent Grade-I is of only two posts and the next vacancy is likely to occur after more than eight years. That being so, reserving one post out of the two will tantamount to 50% reservation.