BALWINDER SINGH Vs. STATE OF PUNJAB & OTHERS

JUDGEMENT

(1.) By this common order, this Court proposes to dispose of two writ petitions which have been filed seeking to challenge the promotion of respondent No. 4 as Kanungo with a prayer that the relaxation given while promoting respondent as Kanungo be set-aside.

(2.) The petitioner was working as a Patwari in Gurdaspur District from date of appointment i.e 11.01.1983. Respondent No. 4 was also working as Patwari in the same district and appointed w.e.f. 01.04.1985. The petitioner and respondent No. 4 belong to the Scheduled Caste as notified in the State of Punjab and as per seniority list the name of the petitioner stood at Sr. No. 47 and that of the respondent at Sr. No. 101. Next avenue of promotion for the Patwari is to the post of Kanungo and appointment to the post is regulated by Punjab Kanungo (Class III) Service Rules 1994. As per Rule 8 (1) of the Rules, 85% of the seats of Kanungo are to be filled up by promotion from amongst Patwaris who have a work experience of 10 years in a district and have undergone refresher course as specified in Appendix `B' of the Rules. These Rules can be relaxed by invoking Rule 20. By order dated 07.06.1995, respondent No. 4 was promoted as Kanungo. The petitioner represented against the said promotion being an affected party since a person, junior to him, was being promoted. Aggrieved against the promotion given to respondent No. 4 dehors the Rules, the CWP No 13794 of 1995 has been filed. Thereafter, private respondent No. 4-Yash Pal made a representation for granting him promotion from the date when a similarly situated candidate, Mr. Bawa Singh, had been given promotion by invoking Rule 20 of the Rules of 1994. This was allowed by the impugned order dated 10.08.2004 and which is the subject matter of CWP No.13474 of 2004.

(3.) Learned counsel appearing on behalf of the petitioners contends that the Rule 8 (1) of 1994 Rules provides for promotion as Kanungo and it is mandatory that the incumbent must have undergone a refresher course as specified thereunder, which course has not been done by respondent No. 4. It is also argued that the power of relaxation by invoking Rule 20 vests with the Government and not the Financial Commissioner Revenue while further submitting that before any Rule is relaxed, the Government is to form an opinion that it is necessary or expedient to do so which conscious decision was not taken. It is submitted that the order dated 07.06.1995 has been reviewed and by order dated 20.07.2004 a decision has been taken to promote the petitioner on the post of Kanungo w.e.f. 25.01.1994 and as such the order is illegal as there is no provision for review under the Rules of 1994. It is also argued that the Rule 20 further provides that there will be no relaxation as far as educational qualification and experience is concerned, and respondent No. 4 had not completed his refresher course.