GEETA DEVI Vs. STATE OF HARYANA AND OTHERS

JUDGEMENT

(1.) On 3.7.2009, this Court has allowed C.W.P. No. 21663 of 2008 filed by the non-applicant-petitioner Smt. Gita Devi and the promotion on the post of Head of the Department, Mathematics, granted to the applicant respondent No. 3 Smt. Benu Bajaj was set aside. As a consequence, a direction was issued to the official respondents to reconsider the case of the non- applicant petitioner by treating her eligible as she fulfilled the conditions of 12 years experience of working on the post of Lecturer and Senior Lecturer provided in Column 4 of Appendix "B" attached to Rule 7 of the Haryana Technical Education Department (Group A) Service Rules, 1986 (for brevity, 'the 'Rules'). The aforesaid order was based on two principles laid down by Hon'ble the Supreme Court, namely, that a vacancy which has arisen before amendment of the rules should be filled up in accordance with the un-amended rules and the term 'experience' would also include experience gained while working on ad hoc basis. The amendment in the present case was made in the Rules on 11.11.2008. Earlier to amendment, Rule 7 read with Appendix 'B' Column 4 had laid down 12 years experience as Lecturer in Applied Sciences out of which two years should be as Senior Lecturer. By amendment the term 'experience' was sought to be explained by adding an explanation under Column 4. Accordingly, explanation defined the 'experience' to mean service rendered in the Department of Technical Education, Haryana after regular appointment on the post. As a result of the aforesaid amendment the nonapplicant- petitioner was sought to be non-suited and was not considered because her experience over 7 years as Lecturer in Mathematics gained by working on ad hoc basis at Government Polytechnic College, Sonepat from 24.8.1995 to 11.11.2002 was not taken into account. Her further experience of one year and four months while working on ad hoc basis in Ch. Devi Lal Memorial Engineering College, Panniwala Mota, Sirsa, was also not taken into account. As the vacancy had arisen in May 2007 and the post was filled up on 22.12.2008 (R-2) by promoting the applicant-respondent No. 3, who was otherwise junior to the non-applicant-petitioner in the rank of Senior Lecturer, this Court held that the old vacancy of Head of Department, Mathematics should have been filled in accordance with the old rule which have used the expression 'experience' without any further requirement of nature of service etc. Even on the second question it was held that service rendered on ad hoc basis would become relevant for the purposes of satisfying the requirement of experience. The aforesaid judgment passed by the Division Bench was challenged in SLP, which was dismissed and the following order was passed :-

(2.) In pursuance of the aforesaid order of Hon'ble the Supreme Court the instant review application has been filed. It has been argued that the vacancy had arisen on 9.5.2007 i.e. prior to amendment of Rules and the applicant- respondent No. 3 made a representation on 8.6.2007 seeking her promotion to the post of Head of the Department when the non-applicantpetitioner was not even eligible as per the un-amended Rule. According to the applicant- respondent No. 3 the non-applicant-petitioner became eligible only on 2.6.2008 on acquiring 12 years experience as Lecturer in Applied Sciences out of which two years was of Senior Lecturer, whereas the applicant-respondent No. 3 became eligible on 9.5.2007 as per the unamended Rule. The argument raised by accepting the principle that old vacancy is to be filled up as per old Rules, is that on the date of occurrence of vacancy the non-applicant-petitioner was not eligible and the vacancy should have been filled up by determining the eligibility on the date of occurrence of vacancy, which is 9.5.2007. In support of his submission, learned counsel for the applicant-respondent No. 3 has placed reliance on para 33 of the Full Bench judgment of this Court rendered in the case of Punjab State Electricity Board, Patiala v. Ashok Kumar Sehgal, 1990 AIR(P&H) 117, and argued that the eligibility has to be determined by reference to the date of occurrence of vacancy and not to the date of filling up the vacancy. In other words, date of acquisition of eligibility is the dominant determining factor. According to the learned counsel, if vacancy is not filled up by taking into account those persons who were eligible on the date of occurrence of vacancy, it may lead to undesirable results like breeding of manipulation, calculation and caprice.

(3.) Having heard learned counsel for the applicant-respondent No. 3, we find that there is no rule of law to the effect that eligibility of an employee for promotion has to be determined by confining it to the date of occurrence of vacancy. The Full Bench judgment in Ashok Kumar Sehgal's case firstly does not lay down any principle of general application that the date of occurrence of vacancy is the crucial date for determining eligibility for promotion. We feel that no such principle of general application could be laid down or has been laid down by the Full Bench because in all cases delay in filling up of vacancy may not be because of manipulation, malice or caprice. There may be umpteen number of reasons for the State to proceed with the process of promotion for example the Public Service Commission, which is to approve the appointment may not be available or there may be financial stringency. To lay down it as a principle of law that eligibility has to be determined by referring to the date of vacancy, would curb the right of those who may be senior and become eligible later on than their junior as is the situation in the present case.