TARA CHAND Vs. STATE OF HARYANA

JUDGEMENT

(1.) This petition filed under Article 226 of the Constitution prays for issuance of a writ in the nature of certiorari quashing order dated 24.3.1989 (Annexure P-5) passed by respondent No. 2 granting promotion to Prem Pal, respondent No. 3 from the post of Fisherman to that of Pumping Set Driver/Operator. A further direction has been sought to the official respondents to promote the petitioner from the date respondent No. 3 has been considered and promoted.

(2.) Brief facts of the case are that the petitioner was appointed as Fisherman in the Fisheries Department on 9.12.1975 and respondent No. 3 Prem Pal was appointed as such on 22.8.1977. According to the rules titled as Haryana Fisheries Department (State Group "C") Rules, 1979 (for brevity, Rs. 1979 Rules'), the post of Pumping Set Driver/Operator is required to be filled up by promotion to the extent of 50 percent. The further requirement of the Rules is that a candidate should have passed middle and must be possessing two years experience as fisherman. It is claimed that the petitioner being senior by almost two years was entitled to be considered and promoted ahead of respondent No. 3. It has also been claimed that his service record has always been Good/Very Good and he was never conveyed any adverse entry till then. The petitioner has also placed reliance on instructions dated 30.3.1973 (Annexure P-2) as clarified further on 5.6.1973 (Annexure P-3) to argue that the principle of seniority-cum-fitness was applicable to the case of the petitioner and on the fulfilment of educational qualifications and the requirement of experience the petitioner was entitled to be promoted. Further reliance has been placed on instructions Annexure P-6 dated 7.5.1974 issued by the Chief Secretary to Government Haryana, instructions dated 16.8.1983 (Annexure P-7) and the instructions dated 1.7.1991 (Annexure P-8) which provides that no notice is required to be taken of uncommunicated adverse remarks and the criterion for promotion that a person must have 50 percent good record till the year 1985 and 70 percent good record after 1985. It is claimed that the record of the petitioner has been Good/Very Good to the extent of 70 percent in accordance with those instructions.

(3.) In the written statement it has been admitted that the petitioner is senior to respondent No. 3 as per rule of seniority governing the service known as Punjab State (Class IV) Services Rules, 1963. It has further been admitted that according to 1979 Rules Fisherman can be considered for promotion to the extent of 50 percent of the posts provided he fulfils the qualification of Middle pass with two years experience of the line with mechanical knowledge. It has further been accepted that the petitioner duly fulfilled the qualification for the post of Pumping Set Driver/Operator. However, it has been asserted that the post of Pumping Set Driver/Operator has to be filled up by promotion on the basis of seniority-cum-merit as per the directions issued by the Chief Secretary, Haryana stating that the administrative department would enjoy power to promote on the basis of seniority-cum-merit in the absence of a specific provision in the service rules governing promotion to higher posts as mentioned in Appendix 'A' attached to the Rules. The afore- mentioned presumption has been read into rules after obtaining opinion of the Legal Remembrancer, Haryana and therefore it has been urged that the instructions dated 5.6.1973 and 13.6.1973 (Annexures P-3 and P-4) on which reliance has been placed by the petitioner would not be applicable. In para 7, the stand taken is that the A.C.Rs. of the petitioner for the years 1984-85 and 1986-87 with regard to 'integrity' have been recorded to be doubtful. It was on account of the afore-mentioned reason that his case was considered but he could not be promoted to the higher post on the basis of record.