Punjab-Haryana High Court
Gurwinder Singh And Ors vs State Of Punjab And Ors on 27 January, 2023
CWP-12435-2015 (O&M)
and other connected cases 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1.CWP-12435-2015 (O&M)
Gurwinder Singh and another
....Petitioners
Versus
State of Punjab and others
..Respondents
2.CWP-23168-2015 (O&M)
Gurwinder Singh
....Petitioner
Versus
State of Punjab and others
..Respondents
3.CWP-19150-2022 (O&M)
Raj Kumar and others
....Petitioners
Versus
State of Punjab and another
..Respondents
4.CWP-14575-2015 (O&M)
Kamaldeep Kaur and others
....Petitioners
Versus
State of Punjab and others
..Respondents
5.COCP-1179-2022 (O&M)
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CWP-12435-2015 (O&M)
Baljeet Singh and others
....Petitioners
Versus
State of Punjab and others
..Respondents
Date of decision: 27.01.2023
Reserved on: 19.01.2023
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Dheeraj Kumar, Advocate
for Mr. H.P.S.Ishar, Advocate for the petitioner
Mr. H.C.Arora, Advocate for the petitioner
in CWP-19150-2022
Mr. Gurpreet Singh, Addl. AG, Punjab
Mr. R.K.Arora, Advocate
for the petitioner in COCP-1179-2022
for respondent no.3 to 11, 13 to 18 & 20 to 22
in CWP-12435-2015
for respondent no.3, 4, 6, 8 to 14 & 16 to 29
in CWP-14575-2015
and for intervenor in CWP-19150-2022
ANIL KSHETARPAL, J
1. By this order, four Civil Writ Petitions i.e CWP-12435-
2015, 23168-2015, 19150-2022, 14575-2015 and one COCP-1179-2022
shall stand disposed of.
2. According to the learned counsel representing the
petitioners, the following questions need adjudication:-
"(1) Whether Rule 20 of the Punjab Civil
Services (General and Common Conditions of Services) Rules,
1994 has overriding effect of the provisions contained in Punjab
Civil Services (Promotion of Stenographer and Steno Typists)
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Rules, 1961 where under Stenographer and Steno Typists, along
with Clerks were eligible for promotion as Senior Assistant."
(2) Whether in view of the judgment rendered
by a Division Bench of this Hon'ble Court in Piara Singh vs. State
of Punjab and another quashing the notification dated 07.06.2001,
the Punjab Civil Services (Promotion of Stenographer and Steno
Typists) Rules, 1961 are still applicable?"
3. The relevant facts, in brief, are required to be noticed to
understand the controversy involved in this batch of writ petitions.
4. The aforesaid issues arise with respect to the validity of the
seniority list of Clerks, Steno Typists and Stenographers drawn on 21st
May, 2015 in the Department of Soil and Water Conservation, Punjab.
5. The following are three different service Rules which will
be referred to while deciding the cases:-
a) the Punjab Civil Services (Promotion of Stenographer and
Steno Typists) Rules, 1961 (hereinafter referred to as the '1961 Rules')
b) the Punjab Civil Services (General and Common
Conditions of Service) Rules, 1994 as amended upto date (hereinafter
referred to as '1994 Rules')
c) The Punjab Soil and Water Conservation and Waste Land
Development Sub Office (Group C) Ministerial Service Rules, 2001
(hereinafter referred to as '2001 Rules')
6. As per Rule 2 of 1961 Rules, the officials working as
Stenographers or Steno Typists are entitled to be considered for
promotion to the post of Assistants, which is extracted as under:-
"2. Stenographers and Steno Typists
shall be eligible for promotion to the post of
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Assistant, Head Assistant, Deputy Superintendent of
Superintendent as the case may be, in accordance
with the provisions hereinafter appearing."
7. Subsequently the 1994 Rules were notified and it is evident
that these lay down general and common conditions of service. The
relevant Rule for the purpose of decision of this case is Rule 20, which is
extracted as under:-
"20. Over riding effect. - The provisions
of these rules shall have effect notwithstanding
anything contrary contained in any rules for the time
being in force for regulating the recruitment and
conditions of service for appointment to public
service and posts in connection with the affairs of the
State
8. At this stage, it is important to note that in the year 2015, the
1994 Rules were amended and a provision was made in them to promote
the Steno Typists/ Stenographers to the post of Senior Scale
Stenographers. It is not disputed that in the Department of Soil and Water
Conservation, the post of Senior Scale Stenographer does not exist.
9. In the year 2001, the Punjab Soil and Water Conservation
and Waste Management Department, Rules 2001 were notified, in which
there were no avenues of promotion of the officials working as Steno
Typists/ Stenographers in the Department of Soil and Water
Conservation. This led to the filing of various writ petitions in the High
Court. In Piara Singh vs State of Punjab and another, CWP-20485-
2006, a Division Bench of this Court, after considering the various
aspects of the matter, quashed the 2001 Rules, which were notified vide
notification dated 7th June, 2006. The operative part of the judgment
reads as under:-
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"We have heard learned counsel for the
parties and perused the record from which we have
found that the petitioner had made a categorical
averment in the writ petition that at the time of his
appointment, his services were governed by the 1961
Rules and as per Rule 5(1) of the 1961 Rules, the
Junior Scale Stenographers and Steno- typists along
with Clerks were eligible for promotion to the post of
Assistant after qualifying the test prescribed for the
said post. This fact is not denied by the official
respondents rather no answer has been given in this
regard which means that the averment made by the
petitioner is correct to the extent that he was
governed by the 1961 Rules in which there were
avenues for promotion to the post of Senior Assistant.
It is also admitted by the official respondents that the
petitioner had passed the Assistant Grade
Examination in the year 1992 naturally when the
1961 Rules were in vogue. More-so, all that has been
stated in the written statement is that 2001 Rules
have been framed in which there is no avenue for
promotion for the Junior Scale Stenographers and
Steno-typists and the 100% promotion to the post of
Senior Assistant is meant for the Clerks. It is also not
denied that the Department of Agriculture had
realized the difficulties of the petitioner and
suggestions were made for amendment in the 2001
Rules which has been accepted by the Punjab Public
Service Commission, as mentioned in para 7 of the
writ petition, and there is no denial in the written
statement to it except that the matter has to be
finalized by the Council of Ministers, though, much
water has flown thereafter as the recommendations
were accepted by the Punjab Public
Service Commission on 28.02.2005. From the resume
of the aforesaid facts, one thing is established that in
terms of Rule 6 and Appendix-B of the 2001 Rules,
there were no promotional avenue for the petitioner
which he was earlier having under 1961 Rules.
In Dr. Ms. O.Z. Hussain's case (supra), it
was held as
"7. This Court, has on more than
one occasion,pointed out that provision for
promotion increases efficiency of the public
service while stagnation reduces efficiency and
makes the service ineffective. Promotion is thus
a normal incidence of service. There too is no
justification why while similarly placed officers
in other ministries would have the benefit of
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promotion, the nonmedical `A' Group scientists
in the establishment of Director General of
Health Services would be deprived of such
advantage. In a welfare State, it is necessary
that there should be an efficient public service
and, therefore, it should have been the
obligation of the Ministry of Health to attend
to the representations of the Council and its
members and provide promotional avenue for
this category of officers. It is, therefore,
necessary that on the model of rules framed by
the Ministry of Science and Technology with
such alterations as may be necessary,
appropriate rules should be framed within four
months from now providing promotional
avenue for the `A' category scientists in the
non-medical wing of the Directorate."
In view of the aforesaid discussion, we
are of the considered opinion that the notification
dated 07.06.2001 is patently illegal, arbitrary and
discriminatory inasmuch as no avenue for promotion
is provided to the persons like the petitioner who was
earlier having the same in the 1961 Rules, despite the
fact that he had passed the Assistant Grade
Examination way back in the year 1992 and was
eligible for promotion to the post of Senior Assistant
since then. Thus, both the writ petitions areallowed
and the impugned notification dated 07.06.2001 is
hereby quashed."
10. On, 7th March 2017, CWP No. 26078 of 2016 'Balwinder
Singh and others vs State of Punjab and others' relating to
Department of Agriculture came up for decision before this Court. In
that Department, the posts of Senior Scale Stenographers did exist which
were meant to be filled exclusively by promotion from the post of Junior
Scale Stenographers and Steno typists. In that context, the Division
Bench declared that Senior Scale Stenographers and Steno Typists
cannot claim promotion to the post of Assistants. The operative part of
the judgment in Balwinder Singh's cse (supra) reads as under:-
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"[7] It is undeniable that 1994 Rules are
applicable to all Government Departments in the
State of Punjab wherever there are no separate
service rules formulated by the Department.
Similarly, where the departmental service rules are
silent on an issue, such Rules stand supplemented by
the provisions of 1994 Rules.
[8] In the Department of Agriculture to
which the petitioners belong, there are no separate
service rules to regulate the conditions of service.
The service conditions of the petitioners and other
employees of Agriculture Department are therefore
governed under the 1994 Rules only.
[9] The claim of the petitioners for
promotion as Senior Assistants and Rules 5&6 of
1961 Rules has been however, taken away by virtue
of Rule 14-A inserted vide the impugned notification
dated 15.03.2015 whereunder the posts of Senior
Assistants are now to be filled up by promotion from
amongst Clerks only having atleast five years'
working experience. In the absence of any other
contrary rule having force of law, the provisions of
1994 rules have occupied the field and are
enforceable to regulate the conditions of services of
all the employees of Department of Agriculture.
[10] At this juncture, it is useful to refer
to Rule 20 of 1994 rules which is loaded with a non-
obstante clause whereby provisions of 1994 rules
have got an over-riding effect on any other rules for
the time being in force.
"...20. Over-riding effect:- The
provisions of these rules shall have effect
notwithstanding anything contrary contained in any
rules for the time being in force for regulating the
recruitment and conditions of service for appointment
to public service and posts in connection with the
affairs of the State......"
[11] It may thus be seen that even if
there are other statutory rules under which the
employees of Agricultural Department can seek some
service benefits, such Rules cannot be enforced if
these are contrary to the provisions of 1994 Rules.
The claim of petitioners for promotion to the posts of
Senior Assistants now has to be determined under
Rule 14-A of 1994 Rules and the said rule has an
over-riding effect over the provisions of the rules
contrary thereto, in view of non-obstante clause
inserted in Rule 20 (ibid).
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[12] The resultant effect is that the
reliance placed on by the petitioners on Rules 5 and 6
of 1961 Rules has lost its strength and the said
provision has become totally defunct by virtue of Rule
14-A read with Rule 20 of 1994 Rules.
[13] The second plea taken by the
petitioners is also misconceived and misdirected. By
virtue of Rule 15-A of 1994 Rules, now post of Senior
Scale Stenographer is exclusively meant for
promotion from amongst the Junior Scale
Stenographers. The post of Senior Scale
Stenographer on one hand and that of Senior
Assistant on the other, carry the same pay-scale and
same pay-band. The petitioners have thus got an
alternative promotional avenue of equal status under
the 1994 Rules. Incidental fact that there are more
posts of Senior Assistants and less of Stenographers,
cannot be seen an element of arbitrariness in the
rules as the vacancy position in a cadre is an
incidence of service. It is well settled that chance of
promotion is not a condition of service."
11. Subsequently in Darshan Singh and another vs. State of
Haryana CWP. 27577 of 2013 decided on 23.04.2015, a direction was
issued to the Chief Conservator of Soil, Punjab to prepare/ finalize joint
seniority list to the concerned posts within a period of four weeks. The
operative part of the order is extracted as under:-
In view of the above, without going into
merits of the case and commenting thereon, the
present writ petition is disposed of with directions to
the Chief Conservator of Soils, Punjab-respondent
No.2 to prepare/finalize the joint seniority list within
a period of four weeks from today and thereafter
consider the claim of the petitioners for promotion to
the post of Senior Assistant from the due date as per
their entitlement and pass appropriate orders within
a further period of four weeks. Decision so taken be
conveyed to the petitioners forthwith.
12. Pursuant to the directions, a joint seniority list of Clerks,
Steno Typists and Stenographers has been notified on 21st May, 2015
consequential orders of promotion, while considering the claim of Steno
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Typists have been passed. In these writ petitions, the challenge is to the
aforesaid joint seniority list issued on 21st May 2015 and the
consequential orders.
13. Heard the learned counsel representing the parties at length
and with their able assistance perused the paper books of the various
cases alongwith their oral and written arguments.
14. On the one hand, the learned counsels representing the
petitioners have drawn the attention of the Court to Rule 20 of the 1994
Rules to contend that the 1961 Rules stand superseded because Rule 20
starts with a non-obstante provision. While relying upon the order passed
in Balwinder Singh's case (supra), they contend that the 1994 Rules
have been placed at a higher pedestal and shall result in superseding the
1961 Rules. It is, thereby, contended that the Stenographers and Steno
Typists are not entitled to seek promotion to the posts of Senior
Assistants.
15. On the other hand, the learned counsels representing the
respondents, including the State Government, contend that Rule 20 of the
1994 Rules cannot supersede the 1961 Rules because the 1961 Rules are
specific to the Department, whereas, the 1994 Rules are general in their
nature and application. They rely upon the doctrine of
generaliaspecialibus non derogant.
16. In the aforesaid circumstances, the questions noted in this
beginning of the judgment arise. First of all, it is important to clarify that
the order passed in Balwinder Singh's case (supra) relate to the
employees engaged in the Department of Agriculture and does not cover
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the employees of the Punjab Soil and Water Conservation Department. In
the Department of Soil and Water Conservation, the posts of Senior Scale
Stenographers do not exist.
17. In the 2001 Rules, the State failed to provide any
channel/avenues of promotion to the employees/officials who were
working as Steno Typists and Stenographers in the Soil and Water
Conservation Department. This led to the filing of the Civil Writ Petition
no. 20485 of 2006 and ultimately, the 2001 Rules were quashed. In these
circumstances, the Department has started applying 1961 Rules which
provide for a proper channel of promotion for Clerks and Steno Typists
working in the Department. Hence, the order passed in Balwinder
Singh's case (supra) shall not be applicable to the facts of the present
case.
18. The second argument of the learned counsel representing the
petitioners is with reference to Rule 20 of the 1994 Rules. The same
needs to be cautiously examined and interpreted. On a careful reading
thereof, it is evident that the various special Rules notified by the specific
Departments have not been entirely/completely superseded except to the
extent specified in Rule 20. In other words, Rule 20 uses a non obstante
provision to a limited extent. The 1994 Rules have been given an
overriding effect over the specific Rules of the various Departments only
for the limited purpose of regulating the recruitment and conditions of
service for appointment to public service and posts in connection with
the affairs of the State. In other words, the 1994 Rules are applicable in
all the Departments of Punjab only with respect to regulating the
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recruitment and conditions of service for appointment to public service
and posts in connection with the affairs of the State. Moreover, the 1994
Rules, as is evident from the long title are relating to general and
common conditions of service. These Rules do not deal with every
aspect of service involved in various Departments of the State. Hence,
the maxim of generaliaspecialibus non derogant shall be applicable to
the facts of the present case.
19. While applying the interpretative tools, the Court is required
to give meaning to each word used in the provision. On a plain and
logical reading of Rule 20, it is evident that the State Government never
intended to supersede the specific Rules which are peculiar to the
situations arising in the individual Departments. Otherwise, the State
Government could have stated that these Rules shall supersede the pre-
existing Rules applicable to the various Departments. It is evident that
this was never the intention of the Government. It was for this reason
that the Rule 1994 Rules were given an overriding effect only with
respect to the situations which have been, explicitly, envisaged in the
Rules, itself.
20. This aspect can be examined from yet another perspective.
The Division Bench in Piara Singh's case (supra) quashed the 2001
rules vide judgment dated 11th December, 2012. At that time, the 1994
Rules were in existence, however, the State of Punjab did not claim that
on account of the 1994 Rules, there was a channel/criteria for promotion
for the incumbents working as Steno Typists and Stenographers in the
Department of Soil and Water Conservation. In 2001, the writ petitions
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were defended only on the basis of the 2001 Rules, which were quashed
and held to be illegal in the said judgments. The entire basis of the
judgment passed in Piara Singh's case (supra) is to the effect that the
officials working on the post of Steno Typists and Stenographers shall
have the proper channels/avenues of promotion. If the argument of the
learned counsel representing the petitioners is accepted, the judgment
passed in Piara Singh's case (supra) would be rendered ineffective.
21. In view of the foregoing discussion, the conclusion is
inevitable. Consequently, it is declared that Rule 20 of the 1994 Rules
has a limited over-riding effect on 1961 Rules with respect to regulating
the recruitment and conditions of service for appointment to public
service and posts held under the State. Secondly, in view of the
judgment passed in Piara Singh's case (supra) the 1961 Rules shall
continue to operate till these are repealed or substituted in the future by
the Legislature or the Government in the exercise of the powers of
delegated legislation.
22. Keeping in view the aforesaid facts, CWP No. 14575 of
2015 filed by the petitioners and CWP 12435 of 2015 challenging the
seniority list dated 21st May, 2015 shall stand dismissed. Similarly,
CWP No. 19150 of 2022 seeking a writ of Mandamus to direct the
respondents to prepare and notify a separate seniority list of Clerks shall
also stand dismissed. The COCP No. 1179 of 2022 filed by the Steno-
Typists and Stenographers shall stand disposed of with a direction to the
respondents to forthwith implement the directions dated 23.04.2015
issued in Darshan Singh's case (supra).
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23. All the pending miscellaneous applications, if any, are also
disposed of.
27.01.2023 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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