Nanak Singh And Ors vs Punjab School Education Board And Ors
2024 Latest Caselaw 16051 P&H

Punjab-Haryana High Court

Nanak Singh And Ors vs Punjab School Education Board And Ors on 3 September, 2024

                                  Neutral Citation No:=2024:PHHC:114902
                                                                             1
CWP-12530
    12530 of 1997 (O&M)




      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH


                                 CWP-12530
                                      12530 of 1997 (O&M)
                                 Reserved on
                                          on: 07.08.2024
                                 Pronounced on: 03.09.2024

Nanak Singh and others
                                                              ......Petitioners

                   Versus


Punjab School Education Board and others
                                                            ......Respondents

CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR

Argued by: - Mr. R.K. Arora, Advocate,
            and Mr. Jugam Arora, Advocate,
            for the petitioners.

             Mr. R.S. Kalra, Advocate,
             for respondents No.1 to 3.

             Mr. Teevar Sharma, AAG, Punjab,
             for respondent No.4.

NAMIT KUMAR, J.

1. The petitioners have approached this Court by way of

filing the instant petition under Articles 226/227 of the Constitution of

India, seeking a writ of certiorari, quashing the order dated 11.07.1995

(Annexure P-12), P 12), whereby the posts of the petitioners have been

included in the category of Packers for the purpose of their promotion

to the post of Clerk from amongst the 25% quota meant for Class Class-IV

employees and also also the subsequent decision taken by respondent respondent-Board

in its meeting held on 01.07.1997 (Annexure P P-15) regarding creation

of 5% quota for the purpose of promotions promotions from amongst the cadre of

Packers and Restorers and also the order dated 16.01.1997 (Annexure

1 of 7

Neutral Citation No:=2024:PHHC:114902

CWP-12530 12530 of 1997 (O&M)

P-14),

14), whereby the petitioners have been reverted from the post of ad

hoc Clerks to the post of Restorers.. Further, a writ of mandamus has

been sought for directing the respondent-Board respondent Board to give promotions to

the petitioners as Clerks on regular basis fro from the date of availability of

vacancies after completion of five years experience as Restorers.

2. Present petition had been preferred on behalf of 20

petitioners, however, the same has been withdrawn by petitioners No.2

to 9; 11 to 15, 17, 18 and 20; petitioner petitioner No.10 has expired and

petitioners No.16 and 19 have been terminated from service and the

present petition is survived only qua petitioner No.1.

3. Petitioner No.1 was initially engaged as Restorer on

temporary basis on 01.07.1986 and he joined on 14.07.1986 and his

services were regularised on 07.07.1992. On 15.10.1993, petitioner

No.1 and others were given ad hoc promotion as Clerk on 89 89-day basis

and thereafter they made representations to the respondents respondents-Board to

regularise their ad hoc promotion. Subsequently, their ad hoc

promotion was withdrawn withdrawn and they filed CWP No.1274 No.12747 of 1994 with

a prayer for grant of promotion on regular basis. This Court while

issuing notice of motion granted status quo qua the services of the

petitioners.. Thereafter, respondent-Board Board passed impugned order dated

11.07.1995,, whereby Restorers were included in Class IV category for

promotion within 25% quota.

quota The said writ petition came up for

hearing earing before this Court on 16.12.1996 16.1 and the petitioners were given

liberty to amend the writ petition to challenge the order dated

11.07.1995, however, the status quo order was vacated on the statement

2 of 7

Neutral Citation No:=2024:PHHC:114902

CWP-12530 12530 of 1997 (O&M)

of learned counsel for the respondents that the Board would not fill up

the posts of Clerks Clerks vacated by the petitioners till further orders.

Consequently, the amended writ petition was filed by the petitioners.

Thereafter, vide order dated 16.01.1997, petitioner No.1 and others

were reverted from the post of ad hoc Clerk to their original pos post of

Restorer. The T Punjab School Education Board, in its meeting dated

27.06.1997 created promotional avenues for Restorers/Packers i.e. 5%

posts of Clerks to be filled by way of promotion from amongst the

Packers and Restorers. Thereafter the said writ ppetition was withdrawn

by the petitioners with liberty to file fresh writ petition on the same

cause of action so as to challenge the decision of the Board dated

27.06.1997.

4. Written statement on behalf of respondents No.1, 2 and 3

has been filed wherein the claim of the petitioner has been contested.

Thereafter additional written statement on behalf of respondent respondent-Board

has been filed wherein it has been stated that the case of petitioner No.1

was considered for promotion to the post of Clerk on 23.10.2001 along

with other similarly situated Restorers.

Restorers However, owever, he was not found fit

for promotion because he was awarded punishment of withholding of

five increments with cumulative effect in departmental proceedings

vide order dated 12.10.2001, which was operative on 23.10.2001.

During the pendency of the present petition, petitioner has also been

promoted to the post of Clerk vide order dated 01.10.2012 and

thereafter he has been given the designation of Junior Assistant w.e.f.

01.10.2017,, vide order dated 19.03.2018.

3 of 7

Neutral Citation No:=2024:PHHC:114902

CWP-12530 12530 of 1997 (O&M)

5. Learned counsel for the petitioner submitted that ad hoc

promotion of the petitioner is liable to be regularized in view of the fact

that earlier also some Restorers were promoted who were given

promotion on temporary basis vide order da dated 30.10.1987 (Annexure

P-3)

3) and thereafter their services were regularized vide order dated

23.06.1992 (Annexure P-5).

5). Therefore, it is a case of discrimination

and violation of Articles 14 and 16 of the Constitution of India. He

further submitted that while reverting the petitioner from the post of

Clerk to that of Restorer, no opportunity of hearing was granted. He

further submitted that the petitioner while working as Restorer was

performing the duties of Clerk and, therefore, he was entitled to be

promoted as Clerk.

6. Per contra,, learned counsel for the respondents submitted

that the ad hoc promotion granted to petitioner No.1 No.1, on the post of

Clerk, does not confer any right of regular appointment to the said post.

He further submitted that there was no avenue for promotion from the

post of Restorer to that of Clerk and for the first time the Board in its

decision dated 11.07.1995, 11.07.1995 included the Restorers in Class IV category

for promotion within 25% quota and thereafter the Board vide its

decision dated 27.06.1997 created promotional avenues for Restorers

and Packers and 5% posts of Clerks were ordered to be filled amongst

the Packers and Restorers and the petitioner has been promoted during

the pendency of the present petition under 5% quota, ther therefore, he is

estopped from challenging the same.

4 of 7

Neutral Citation No:=2024:PHHC:114902

CWP-12530 12530 of 1997 (O&M)

7. I have heard learned counsel for the parties and perused

the record.

8. Since there was no avenue of promotion for the post of

Restorer, therefore, the ad hoc promotion granted to the petitioner does

nott confer any right for regularization. The petitioner cannot claim

promotion in the absence of avenues of promotion in the rules. For the

first time, the Board in its meeting dated 11.07.1995, included the

Restorers in Class IV category for promotion within 25% quota and

lateron changed the same vide decision dated 27.06.1997, whereby 5%

posts of Clerks were ordered to be filled amongst the Packers and

Restorers.. Petitioner No.1 has already been promoted under the said

quota on 01.10.2012 and thereafter thereafter has been designated as Junior

Assistant w.e.f. 01.10.2017, 01.10.2017 vide order dated 19.03.2018. Once he has

been promoted under 5% quota, petitioner is estopped from challenging

the same as he cannot be allowed to approbate probate and reprobate in the

same breath. No fault can be found in the action of the respondent respondent-

Board in providing promotional avenues in the manner provided.

9. The Hon'ble Supreme Court in Ajit Singh v. State of

Punjab, 1999(4) SCT 1; Union of India and others v. Sangram

Keshari Nayak, 2007(3) SCT 512 and Union of India and another v.

Hemraj Singh Chauhan and others, 2010(2) SCT 421 has held that

the promotion is not a fundamental right, however, consideration for

promotion is a fundamental right. The promotion can only be

considered in terms of of the rules governing the service of the employee.

5 of 7

Neutral Citation No:=2024:PHHC:114902

CWP-12530 12530 of 1997 (O&M)

The Hon'ble Supreme Court in P.U. Joshi and others v.

Accountant General, Ahmedabad and others, 2003(1) SCT 435 has

held that questions relating to the constitution, pattern, nomenclature of

posts, cadres, adres, categories, their creation/abolition, prescription of

qualifications and other conditions of service including avenues of

promotions and criteria to be fulfilled for such promotions pertain to

the field of Policy and within the exclusive discretion and jurisdiction

of the State, subject, of course, to the limitations or restrictions

envisaged in the Constitution of India and it is not for the Courts to

direct the Government to have a particular method of recruitment or

eligibility criteria or avenues of promotion or impose itself by

substituting its views for that of the State and similarly, it is well open

and within the competence of the State to change the rules relating to a

service and alter or amend and vary by additions/substruction the

qualifications, cations, eligibility criteria and other conditions of service,

including avenues of promotion, from time to time, as the

administrative exigencies may need or necessitate and the Government

servant has no right to challenge the authority of the State to am amend,

alter and bring into force new rules relating to even an existing service.

To the same effect is a Division Bench judgment of this Court in

Ramesh Kumar and others v. Azad Singh Clerk and others, 2015(4)

SCT 218.

The Hon'ble Supreme Court in Union of India and others

v. S.K. Saigal and others, 2007(1) SCT 286 has held that no mandamus

can be sought against the provisions of the rules. To the same effect is

6 of 7

Neutral Citation No:=2024:PHHC:114902

CWP-12530 12530 of 1997 (O&M)

the judgment of the Hon'ble Supreme Court in State of Haryana and

others v. Sumitra Devi and others, 2004(1) SCT 309

10. So far as argument raised by learned counsel for the

petitioner that no opportunity of hearing was afforded to the petitioner

while reverting him from the post of Clerk is concerned, it may be

stated that reversion of petitioner petitioner No.1 and others was ordered by the

respondent--Board as status quo granted by this Court vide order dated

31.03.1995 was vacated vide order dated 16.12.1996 and since it was

an ad hoc promotion, therefore, there was no requirement for issuance

of any notice ice or opportunity of personal hearing as ad hoc promotion

does not confer any an right.

11. In view of the above, finding no merit in the present

petition, same is dismissed.

12. Pending application(s), if any, also stand(s) disposed of.

                                               (NAMIT KUMAR)
03.09.2024                                        JUDGE
R.S.

             Whether speaking/reasoned         :      Yes/No

             Whether Reportable                :      Yes/No




                                 7 of 7