STATE OF PUNJAB Vs. KEHAR SINGH

JUDGEMENT

(1.) This judgment will dispose of two Letters Patent Appeals (Nos. 928 and 1006 of 1988) which arise out of the judgment dated 26th July, 1988, passed by A.P. Chowdhri, J. (as then he was), delivered in Civil Writ Petition No. 4135 of 1982 (Kehar Singh and Joginder Singh v. The State of Punjab and 3 others). The aforesaid writ petitioners (Kehar Singh and Joginder Singh) in their petition sought the quashing of order dated 8.12.1981, passed by respondent No. 2/The Commissioner, Ferozepur Division, Ferozepur, whereby the appellants (of LPA 928/1988 namely, G.D. Gaba and Ajaib Singh), who were arrayed as respondents No. 3 and 4 in the writ petition, were selected and appointed as officiating Naib-Tehsildars on purely ad hoc basis against the leave vacancies of one Khushi Ram, Naib Tehsildar, who proceeded on leave w.e.f. 2.12.1981 to 5.2.1982 and Mohan Singh, Naib Tehsildar, who proceeded on leave w.e.f. 2.12.1981 to 8.2.1982 respectively. At the time of their selection and appointment, Ajaib Singh and G.D. Gaba were working as Ziledars in the Irrigation Department of the State of Punjab. The writ petitioners (Kehar Singh and Joginder Singh) had been initially appointed as Patwaris in the Revenue Department in the years 1952 and 1953 respectively and were promoted as qualified Kanungo w.e.f. 6.2.1980 and December, 1980 respectively. The appointment of G.D. Gaba and Ajaib Singh as Officiating Naib Tehsildars by the impugned order (Annexure P1) was challenged on the ground that respondent/Commissioner Ferozepur Division completely ignored the instructions as contained in para 37(ii) of the Standing Order No. 12, issued by the Financial Commissioner, which when read with Rules 8 and 6(i)(b) of the Punjab Tehsildari Rules, 1932 (in short called as "the Rules, 1932") would clearly show that the qualified Kanungos, like the writ petitioners had a preferential claim of being promoted and posted even against officiating vacancies of Naib Tehsildars. The Standing Order No. 12 did not envisage the appointment by promotion of Ziledars in the Irrigation Department and as such, the appointment of aforesaid Ziledars, Ajaib Singh and G.D. Gaba, as officiating Naib Tehsildars in the leave vacancies was contrary to the express provisions of the Standing Order No. 12 and the rules. The writ petitioners claimed a right to be promoted to the aforesaid posts of Officiating Naib Tehsildar, as having a right under the rules to be promoted to the aforesaid posts of Officiating Naib Tehsildar, as having a right under the rules to be promoted and appointed as such. A representation had been made by the writ petitioners against the appointment of the appellants/G.D. Gaba and Ajaib Singh, but despite the representation and the personal interview with the Commissioner, Ferozepur Division, the impugned order was not withdrawn.

(2.) The respondent/State of Punjab and the Commissioner Ferozepur Division, Ferozepur, filed a written statement, wherein a preliminary objection was raised that though the petitioners had a right to file representation against the impugned order (Annexure P1), yet they did not file any such representation and, therefore, the writ petition was premature. On merits, the appointment of Ajaib Singh and G.D. Gaba Ziledars to the post of Officiating Naib Tehsildar by means of the impugned order was defended as being strictly in accordance with the rules and the Standing Order as well as the Punjab Government Revenue Department instructions contained in Memo No. 37/46/78-VII/2110 dated 11.2.1981 (a copy of which is Annexure R1). It was stated that according to the instructions Annexure R1, 80% posts were to be filled from amongst the cadre of Kanungos; 10% posts from amongst the District Revenue Accountants; 6% posts from amongst the Assistant Consolidation Officers and 4% posts from amongst the Ziledars of Irrigation Department. It was categorically mentioned that according to these instructions (Annexure R1), read with Punjab Government Revenue Department Instructions contained in Memo No. 10/3/79-EII/11185 dated 25.5.1979, 4% post of Naib Tehsildars in Officiating capacity were to be filled up from amongst the Ziledars of the Irrigation Department. In the instructions (Annexure R1), it was mentioned that necessary action to amend the Standing Order No. 12 and Rules 1932 was being taken separately, but in the meantime the instructions contained in Annexure R1 were to be followed. Even the instructions dated 25.5.1979 provided for four per cent reservation to be kept in view while making even officiating appointments of Naib Tehsildars. Besides it, the explanation 2 below Rule 12 of the Rules, 1932 provides that all posts of Tehsildars and Naib Tehsildars are selection posts and no body shall be deemed to have suffered the penalty of withholding of promotion by reasons of not having been appointed to fill in any such post. As a fact, it was mentioned in para 6 of the reply that due representation had already been given to the Kanungos in the matter of promotion as Naib Tehsildars. Reference was made to a representation dated 22.7.1982 sent by Shri K. Lall Bharu, Secretary of the Kanungos Association, Punjab (a copy of which has been annexed as Annexure P2 with the writ petition), and, it has been submitted that a requisite reply with regard to the said representation was sent to the Punjab Government in the Revenue Department vide office Memo No. EA.I.82/9826 dated 8.12.1982 (Annexure RI).

(3.) Respondent No. 4/G.D. Gaba filed a separate written statement taking similar pleas to the ones taken by the official respondents in their written statement. Respondent No. 4 defended his appointment as Officiating Naib Tehsildar by quoting the instructions of the Punjab State as contained in the memo dated 11.2.1981 (Annexure R1), read with State Government instructions contained in earlier memo dated 25.5.1979, providing for a reservation of 4% of posts in the enlistment of B-Class Naib Tehsildar candidates to be filled up from amongst the Ziledars of the Irrigation Department. Reference was also made to Rule 22(b) of the Standing Order No. 12 regarding the recruitment to Naib Tehsildars, which provided, inter alia, that preference has to be given to the Canal Ziledars. It was further mentioned that the State Government after seeing the work and conduct of respondent No. 4 accepted him as B-Class Naib Tehsildar candidate on the cadre strength of Ferozepur Division against the quota of Ziledars of Irrigation Department. A copy of the order was placed on record as Annexure R-4/1. It was further averred in the written statement that he was appointed as Naib Tehsildar by way of transfer from the post of Ziledar in the Irrigation Department in accordance with Rule 6(b)(i) of the Standing Order No. 12. Respondent No. 4 referred to the decision of this Court in Civil Writ Petition No. 4113/1971, wherein it was observed that the appointment of Naib Tehsildar from the post of Ziledar is a transfer and as such the petitioners had no right to challenge the said appointment. It was averred further that the writ petitioner had no locus standi to challenge his appointment by way of transfer from one Department to the other, i.e. from Irrigation Department to Revenue Department. He further alleged that he was holding a post in accordance with law and no illegality, whatsoever, had been committed in his appointment under the impugned order Annexure P1.