Punjab-Haryana High Court
Rakesh Kumar vs State Of Punjab And Others on 22 March, 2024
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
Neutral Citation No:=2024:PHHC:041780-FB
Neutral Citation No. 2024:PHHC:041780-DB
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(109) LPA-789-2024 (O&M)
Decided on : 22.03.2024
Rakesh Kumar ......Petitioner
Versus
State of Punjab & others ......Respondents
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA,
ACTING CHIEF JUSTICE
HON'BLE MS.JUSTICE LAPITA BANERJI
Present: Mr.Amit Sharma (Kanav), Advocate for the appellant.
Mr.Saurav Khurana, Addl.A.G., Punjab.
Mr.Vikas Chatrath, Advocate
Mr.Rajbir Singh, Advocate
Mr.BPS Thakur, Advocate, for respondents No.5 to 13.
G.S. Sandhawalia, Acting Chief Justice (Oral)
1. Consideration in the present appeal is to the interim order dated
26.02.2024 whereby the Learned Single Judge has vacated the restraint order
dated 15.12.2023, wherein out of the 37 posts of Assistant Transport Officers,
10 had been filled up by way of deputation in pursuance of Annexure P-1.
2. Learned Single Judge while vacating the stay, noticed that out of
the 37 posts, 27 candidates had been selected and 10 had joined prior to the
issuance of the interim order. However, in the wake of it, they were also
relieved and the work of the Department had been affected. There being still
10 posts available and thus the right of the writ petitioner would not be
prejudiced and therefore, CM-21626-2023 in CWP-28240-2023 was allowed.
3. Counsel for the appellant has vehemently submitted that the said
order seriously prejudices the appellant since he was also aspirant for the said
post being a handicapped person having locomotive disability and working as
Senior Auditor in the Food & Supplies Department and posted at District
Bathinda and there was no provision for reservation made.
4. We have perused the paperbook. Apparently 37 posts were sought
to be filled up on deputation basis. It is his own case of the appellant that he
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Neutral Citation No:=2024:PHHC:041780-FB
(109) LPA-789-2024 (O&M) -2-
had applied against the said advertisement (Annexure P-1) and allegedly the
application (Annexure P-2) was forwarded through proper channel. Stand of
the State, on the other hand, is that the Secretary of the Food & Supplies
Department never forwarded the said application. In such circumstances, we
are of the considered opinion that if his application was not forwarded and he
himself was an aspirant, his locus standi is seriously doubted as to how he can
raise a challenge on the ground that it was not permissible by way of
deputation which was noted by the Learned Single Judge firstly on 15.12.2023
that the filling up the post was de-hors the rules. A person who was himself
aspiring in pursuance of Annexure P-1 itself could not have then challenged it
on the ground that the post could only be filled up by way of promotion or by
way of direct recruitment.
5. The stand of the State is very clear that they are having
difficulties in filling up the posts due to which the said procedure has been
resorted to. Rather, the specific plea has been taken that filling up the posts by
way of deputation would amount to filling the posts by way of transfer.
Reference is made to Rule 10.21 of Chapter 10 of the Punjab Civil Services
Rules, Part 1 (Vol-I) that the term 'deputation' covers only appointment made
by transfer on temporary basis. Rule 5 of the Punjab, Department of Transport
(Non-Commercial Wing) (Class III), Service Rules, 2000 provides that if any
suitable candidate is available for appointment to the service by promotion or
by direct appointment, the appointment to the service may be made by transfer
of a person holding an analogous post under the State Government or the
Government of India.
6. Reliance has also been placed to the order dated 08.12.2023
(Annexure P-3) whereby the 27 persons were selected as Assistant Transport
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(109) LPA-789-2024 (O&M) -3-
Officer wherein the term 'period of deputation' had been specified that the
Government reserves the right to reduce or extend the time of deputation at the
time of absorbing them or if work of the said official is not found satisfactory
or unsatisfactory in the department. Thus, it is clear that it is for the exigency
of the services and in the administration of justice, the process had to be
resorted to. It has also been averred that the restructuring of the Transport
Department is being done and Rules are pending consideration before the
Personnel/Finance Department and it is in such circumstances, resort has been
taken to fill up the said posts by way of deputation.
7. The appellant himself is an applicant and for reasons best known
to his department, his application apparently has not been forwarded. In such
circumstances, we are of the considered opinion that the appellant can have no
grouse against the vacation of the order of stay as 10 posts are still vacant. It is
thus open to him also to press for his application to be forwarded for necessary
action, if he so desires which was not the case before the Learned Single Judge.
Even otherwise, we are of the considered opinion that the appeal itself is not
maintainable in view of the judgment of the Apex Court in Midnapore
Peoples Co-op Bank Ltd. and others Vs. Chunilal Nanda and others,
(2006) 5 SCC 399 since his interests have not been affected in any manner.
8. Resultantly, in view of the above discussion, the present appeal
is dismissed in limine.
(G.S. SANDHAWALIA)
ACTING CHIEF JUSTICE
22.03.2024 (LAPITA BANERJI)
Sailesh JUDGE
Whether speaking/reasoned : Yes
Whether Reportable : No
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