Punjab-Haryana High Court
Kulbir Kaur vs State Of Punjab And Others on 23 January, 2024
Neutral Citation No:=2024:PHHC:009363
CWP No.4625 of 2020 (O&M)
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2024:PHHC:009363
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.4625 of 2020 (O&M)
Date of decision: 23.01.2024
Kulbir Kaur
....Petitioner
Versus
State of Punjab and others
....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Jadeep Singh Gill, Advocate
and Mr. Kanwar Raj Singh, Advocate
for the petitioner.
Mr. Arun Gupta, AAG, Punjab.
Mr. Vaibhav Sharma, Advocate
for respondents No.2 and 3.
NAMIT KUMAR J.
1. The present writ petition has been filed by the petitioner
under Articles 226/227 of the Constitution of India, for issuance of a
writ in nature of certiorari, for quashing the impugned orders dated
16.09.2019 (Annexure P-8) and 01.10.2019 (Annexure P-9), as well as
the orders dated 13.12.2019 (Annexure P-12) and 16.01.2020
(Annexure P-14) and further to issue a writ of mandamus for directing
the respondents to allow the petitioner to continue on the post of Clerk,
which the petitioner was holding before passing of the impugned
order(s). Although, prayer for issuance of direction to the respondents to
allow the petitioner to join on the post of Auction Recorder, in view of
Resolution No.101 dated 21.06.2019 passed by respondent No.3, has
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also been made, however, the said claim has not been pressed by
learned counsel for the petitioner, during the course of arguments and
liberty has been sought to agitate the same in a separate proceeding at
an appropriate stage.
2. In view of the statement made by learned counsel for the
petitioner, liberty is granted to the petitioner to agitate the claim for
promotion to the post of Auction Recorder in separate proceeding, in
accordance with law.
3. In nutshell, vide aforementioned orders, the earlier
Resolution dated 19.05.2015 (Annexure P-5), passed by the Market
Committee granting promotion to the post of Clerk, on notional basis to
the petitioner, have been annulled and the petitioner has been ordered to
be reverted to the post of Peon and her revision against the said order
has been rejected by the Revisional Authority, being not maintainable.
4. Brief facts, as have been pleaded in the present petition,
are that the husband of the petitioner namely Gurpreet Singh was
working as an Auction Recorder with the Market Committee,
Chanarthal, District Fatehgarh Sahib and after his untimely death on
21.11.2010, the case of the petitioner for appointment as Peon was
approved vide Resolution passed by the Committee, which was also
approved by the Punjab Mandi Board (hereinafter referred to as 'the
Board') vide letter dated 30.06.2011 (Annexure P-1) and the petitioner
was appointed as Peon vide order dated 05.07.2011 (Annexure P-2),
passed by the Market Committee, Sirhind, Fatehgarh Sahib.
5. It has further been averred that before the year 1997, all
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appointments and promotions made in various Market Committees in
the State of Punjab to Class III and Class IV posts were subject to the
final approval of the Board in view of provision of Section 20(2) of
'The Punjab Agricultural Produce Markets Act, 1961', however, vide
office order dated 07.10.1997, the Board decided that all such
employees who are employed by the Committee on earlier occasions
and if such employees are sought to be promoted by the Committee then
in such case, the Secretary of the Board shall not be required to again
seek prior sanction and the following directions were issued:-
"A) The Market Committee shall seek prior sanction
from the Secretary of the Board under Section 20(2) only in
such cases where the committee for the first instance is
granting employment to the concerned person, and the
concerned post should have the salary of Rs.500/- and
above.
B) In case of promotions, the Employing Authority of
the Market Committee Employee, shall on its own letter
head decide the promotion cases, but the committee shall
decide such cases in accordance with the following, and
compliance with the same shall be mandatory:-
1) Whichever post is being filled, the same should be
sanctioned in the budget. Apart from this the said post
should be covered under the Service Rules.
2) While passing the necessary orders, Reservation
shall be taken into consideration.
3) Whichever post is being filled through
recruitment, the same shall be related to the particular
Committee, and the employee receiving promotion shall be
receiving the same from the parent committee itself.
In the future, all cases of appointments/promotions
in the Market Committee shall be undertaken in
accordance with the above directions only.
Date Sd/-
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(P.S. Aujla)
Secretary
Endst. No.55330-875 Dated: 07.10.97"
6. Thereafter, in the year 2012, the Chairman of the Board
vide letter dated 11.12.2012 (Annexure P-4), further delegated its
powers in making appointments on compassionate grounds, promotions,
fixing of seniority and administrative action of the employees and it was
ordered that the same shall be managed by the Committees at their own
level in Group 'C' and Group 'D' category.
7. Further promotion from the post of Peon is to the post of
Clerk, which is to be filled up from amongst the Class IV employees
working in the Committee, who have 05 years experience and are
matriculates and have passed the typewriting test in Punjabi language at
a speed of 30 words per minute and the same is governed by the Rules
known as 'The Punjab Market Committee (Class III) Rules, 1989'. Rule
8(1) and 8(2) of the Rules provide as follows:-
8. Method of recruitment and qualifications.-
(1) Subject to the provisions of sub-rule (4),
appointments to the service shall be made in the manner
specified in Appendix 'B'.
Provided that no person shall be appointed on daily wages
or on ad hoc basis.
(2) No person shall be appointed to a post in the
service unless he possesses the qualifications and
experience as specified against that post in Appendix 'B'."
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Sr. No. Designatio Method of Qualifications for recruitment
n of the Recruitment
Post
By direct By By
Appointment promotion transfer
5 Clerk By direct Should have From
appointment passed amongst
Provided that Matriculation the Class-
upto ten Examination IV
percent of in 5 [second Employees
the posts as division for working in
per 10+2 the
instructions examination Committee
of the from the who have
Government education an
of Punjab board] and experience
Issued or up should pass a of working
to such test in as such for
percentage of typewriting in a minimum
posts as may Punjabi period of
be specified language at a five years
by it from speed of and who
time to time thirty words are
for the per minute. Matriculate
services s of the
under it shall Education
be filled in Board and
by promotion pass the
typewriting
in Punjabi
language at
a speed of
thirty
words per
minute.
8. In the year 2015, one post of Clerk was lying vacant and
the second post became vacant on promotion of the incumbent of the
said post Sh. Raju, who was promoted to the post of Auction Recorder
and the petitioner submitted her application to be considered for the said
post and it was stated that the petitioner has been granted exemption for
passing the typewriting test and the 05 years experience, she would
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complete on 31.07.2016. The case of the petitioner was put up before
the Committee and vide Resolution No.7 dated 19.05.2015 (Annexure
P-5), it was agreed with consensus and in the public interest that the
petitioner, who was appointed on compassionate grounds be promoted
with the condition that the petitioner will ensure completion of 05 years
service on 31.07.2016 and thereafter, the pay-scale of Clerk i.e. 10300-
34800+Grade Pay will be fixed.
9. The petitioner joined as a Clerk on 21.05.2015 and
thereafter, she completed 05 years service on 31.07.2016 and she was
granted the pay-scale of the post of Clerk.
10. Thereafter, the Board vide office order dated 26.07.2017
(Annexure P-6) withdrew the office order dated 07.10.1997 (Annexure
P-3) whereby the Market Committees were authorized to make
appointments/promotions to Group C and Group D posts.
11. In the year 2019, the petitioner became eligible for further
promotion to the post of Auction Recorder and her case for promotion to
the post of Auction Recorder was sent by the Committee to the Board
on 21.06.2019 (Annexure P-7), however, the same was rejected by the
Board vide letter dated 16.09.2019 (Annexure P-8) on the ground that
she was not having requisite experience when she was promoted to the
post of Clerk on 19.05.2015. Thereafter, vide another order dated
01.10.2019 (Annexure P-9), the Resolution No.07 dated 19.05.2015 of
the Committee whereby the name of the petitioner was approved for
promotion to the post of Clerk, has been cancelled even after recording
the fact that the petitioner now fulfills all the requisite conditions for
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promotion as Clerk/Auction Recorder and since the petitioner was not
fulfilling the condition of 05 years experience when Resolution No.7
dated 19.05.2015 was passed.
12. The petitioner challenged the orders dated 16.09.2019 and
01.10.2019 (Annexures P-8 and P-9), before this Court in CWP
No.35877 of 2019 and during the pendency of the said writ petition, the
petitioner was ordered to be reverted back from the post of Clerk to
Peon vide order dated 13.12.2019 (Annexure P-12) and, therefore, the
said writ petition was withdrawn by the petitioner with liberty to file
afresh petition with better particulars, vide order dated 10.01.2020.
13. The petitioner preferred a revision petition dated
17.12.2019 before the Secretary, Department of Agriculture,
Government of Punjab, impugning the order dated 13.12.2019 whereby
the petitioner was ordered to be reverted back by cancelling the
Resolution dated 19.05.2015, however, the said revision petition was
rejected by stating that appeal lies with the Secretary, Punjab Mandi
Board and liberty was granted to file appeal before the said authority
vide order dated 16.01.2020 (Annexure P-14), which was conveyed to
the petitioner vide letter dated 04.02.2020 and since the Board has
already taken the decision and annulled the Resolution dated
19.05.2015, whereby the petitioner was ordered to be promoted,
therefore, filing of appeal before the Secretary of the Punjab Mandi
Board, would be a futile exercise and consequently, the present writ
petition has been filed by the petitioner impugning her reversion to the
post of Peon.
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14. The writ petition initially, came up for hearing before this
Court on 25.02.2020 and while issuing notice of motion to the
respondents, operation of the orders dated 16.09.2019 (Annexure P-8)
and 01.10.2019 (Annexure P-9), as well as the orders dated 13.12.2019
(Annexure P-12) and 16.01.2020 (Annexure P-14) have been stayed and
it was also clarified that the petitioner shall be permitted to render
services as Clerk in the Market Committee, Chanarthal, District
Fatehgarh Sahib, Punjab.
15. Written statement on behalf of respondent No.2/Board has
been filed and the claim of the petitioner has been resisted by stating
that no post of Clerk for appointment by way of promotion was
available as on 09.12.2016 and further the petitioner had not passed the
Punjabi typewriting test and she did not have 05 years experience as
Class IV employee when she was promoted and, therefore, the
impugned orders are perfectly legal and valid. It has further been
submitted that the Board has powers to annul the Resolutions passed by
the Committee, if the same have been passed in violation of the
provisions of the Act.
16. Learned counsel for the petitioner submits that although the
petitioner was not fulfilling 05 years experience when she was
promoted, however, the said promotion was on notional basis and the
petitioner was to get the pay-scale of the promoted post only on
completion of 05 years experience i.e. on 31.07.2016. The petitioner
was promoted against one of the vacant post caused by the incumbent,
Sh. Raju, who was promoted as Auction Recorder. The petitioner was
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granted exemption from passing typewriting test when she was
appointed as Peon. He further submits that in any case when the order of
reversion has been passed by the respondents, the petitioner had already
completed 05 years experience and this fact has been recorded by the
respondents in the impugned order and the same reads as under:-
"Though the employee now fulfills all requisite
conditions for the promotion as Clerk/Auction Recorder,
however, Resolution No.7 dated 19.05.2015 passed by
Market Committee, Chanarthal, District Fatehgarh Sahib,
vide which Smt. Kulbir Kaur, was promoted from Sewadar
to Clerk was passed without completion of her 05 years
experience and the same is contrary to the
Rules/Instructions."
17. He has placed reliance upon the judgment of the Hon'ble
Supreme Court in case of "Ram Sarup vs State of Haryana", 1979(1)
SCC 168.
18. Per contra, learned counsel for the respondent/Board
submits that since the petitioner was not eligible when she was
promoted on 19.05.2015 as she was not fulfilling the clause of
experience of 05 years, therefore, she has rightly been ordered to be
reverted back and, therefore, the impugned order(s) passed by the
respondents are perfectly legal and valid.
19. I have heard learned counsel for both the parties and
perused the record with their able assistance.
20. The facts are not in dispute that the petitioner was
appointed as Peon on compassionate grounds on 08.07.2011 on account
of death of her husband. Further promotion from the post of Peon is to
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the post of Clerk and one post was vacant and another became vacant in
the year 2015 on account of promotion of Sh. Raju, who was promoted
to the post of Auction Recorder from Clerk. The petitioner submitted
application for consideration for promotion to the post of Clerk.
Although the petitioner was eligible as she was matriculate and clause
of passing the typewriting test was relaxed in her case and as on that
date, she was having experience of 03 years and 09 months as against
required experience of 05 years as Peon, however, her case was
considered by the Committee and it was ordered that she would be
promoted on notional basis and would be entitled to the pay-scale on the
post of Clerk on completion of 05 years service as Peon. She has been
granted the said pay-scale after she has completed 05 years experience.
In terms of Circulars dated 07.10.1997 (Annexure P-3) and 11.12.2012
(Annexure P-4), the Board was competent to make promotion to the
post of Clerk, although the said powers have been withdrawn later on by
the Board vide letter dated 26.07.2017 (Annexure P-6), however, the
said order cannot be made applicable retrospectively and would be
applicable only with effect from the date of issue of the said order i.e.
26.07.2017. In the impugned order dated 01.10.2019 (Annexure P-9), it
has been admitted by the Board that the petitioner now fulfills all the
requisite conditions for the promotion not even as Clerk but also for the
post of Auction Recorder but since she was not having the experience of
05 years, when she was promoted to the post of Clerk, therefore, she is
liable to be reverted back. Once the petitioner has already completed the
experience of 05 years on 08.07.2016, she cannot be reverted back in
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view of the law laid down by the Hon'ble Supreme Court in Ram
Sarup's case (supra) wherein a confirmed Statistical Officer was
appointed as Chief Inspector of Shops. After he had worked for about
ten months on the said post, he was transferred to the post of Labour-
cum-Conciliation Officer because the Government had taken a decision
that the posts of Statistical Officer and Labour-cum-Conciliation Officer
should be made interchangeable. However, the Rules were not amended
in conformity with the said decision. The employee continued in his
new post for about nine years whereupon he was reverted on the ground
that he was not qualified for the post of Labour-cum-Conciliation
Officer under Rule 4(1) of the Punjab Labour Services (Class I & II)
Rules, 1955, which required the experience for five years in the working
of labour laws as Labour Inspector or Deputy Chief Inspector of Shops
or Wage Inspector. The question which came up for consideration
before Hon'ble the Supreme Court was whether his appointment was
wholly void and ineffective or merely irregular. Their Lordships' have
held that the appointment as Labour-cum-Conciliation Officer was
irregular and not void since the employee did not possess the requisite
experience but as soon as he acquired the necessary experience
mentioned in the relevant Rules, his appointment must be regarded as
having been regularised. It was further held that the employee must be
deemed to have been appointed to that post only on the expiry of a
period of five years calculated from the date when he was appointed
Chief Inspector of Shops. The judgment in Ram Sarup's case (supra)
has been followed and applied in the cases of Buddhi Nath Chaudhary
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v. Abahi Kumar, (2001) 3 SCC 328 and Tridip Kumar Dingal v.
State of West Bengal, (2009) 1 SCC 768. In Buddhi Nath's case
(supra) it has also been held that where appointment has been made long
back pursuant to a selection that need not be disturbed.
21. Even otherwise, the petitioner was promoted on 19.05.2015
on notional basis and was to get the pay-scale of the post of Clerk only
on completion of 05 years experience, therefore, she could not have
been reverted back from the said post once she has already completed
the experience of 05 years. The petitioner is even eligible for further
promotion to the post of Auction Recorder, a fact which has been
admitted by the respondents in the impugned order itself. Still further,
she has continued to work on the post of Clerk from 08.07.2011 till date
and a period of more than 08 years have passed, therefore, she cannot be
allowed to be reverted back, at this stage.
22. Consequently, the present petition is allowed and the
impugned order(s) dated 01.10.2019 (Annexure P-9), 13.12.2019
(Annexure P-12) and 16.01.2020 (Annexure P-14) are hereby set-aside
and the petitioner shall be allowed to continue as Clerk, with all
consequential benefits.
(NAMIT KUMAR)
JUDGE
23.01.2024
yakub
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
Neutral Citation No:=2024:PHHC:009363
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