J.S. Sekhon, J. - (1.) PRITHVI Raj Grover, Petitioner joined as Sectional Officer in the Punjab P.W.D. B&R Branch on 8th January, 1963, after doing his Diploma in Mechanical Engineering. On the reorganisation of the State of Punjab, the Petitioner was allocated to the State of Haryana as Sectional Officer. On 19th June, 1971, the Petitioner was promoted as Sub -Divisional Officer and was appointed to the Haryana Service of Engineers Class II Service with effect from the same date, i.e., 19th June 1971 in accordance with the Punjab Service of Engineers Class II P.W.D. (B&R Branch) Rules, 1965, hereinafter referred to as the Class II Rules. Rule 6 of Class II Rules provides the method for recruitment to Class II Service from the following sources: (i) Direct appointment; (ii) By promotion from the members of Haryana P.W.D. B&R. Sectional Officer (Engineering); (iii) By promotion from draftsmen, members of Draftsmen and Tracers Services; (iv) By promotion from members of the Haryana P.W.D., (B&R) Sectional Officers (Engineering) Service and Draftsmen and Tracers Services possessing qualifications prescribed in Appendix 'B' to these rules. Rule 6 also provides a fixed quota for each category for recruitment to Class II Service and the seniority of the members of the Service is also fixed under Rule 12 in accordance with the quota for each category according to the order for recruitment. Sat Pal Sikka, Respondent No. 2 and Ishwar Kumar Madan, Respondent Nos. 2 and 3 joined the Class II Service as Assistant Engineers directly on 21st June, 1973 and 9th May, 1973, respectively after obtaining a degree in Mechanical Engineering. The Petitioner contends that Respondents 2 and 3 had joined the Class II Service after the promotion of the Petitioner to this Service. Thus, the Respondents were junior to him and that in the Gradation List of Haryana Service of Engineers, Class I, Class II and other Gazetted Officers of the Haryana P.W.D. Building & Roads Branch, corrected upto 1st April, 1972, hereinafter referred to as the Gradation List, the names of Respondents 2 and 3 did not figure because these Respondents had not joined the service by then. The name of the Petitioner figured at Section No. 2 of the Gradation List of Officiating Sub -Divisional Engineer/promoted from Sectional Officers. In the Gradation List corrected upto January, 1973, the names of the Temporary Assistant Engineers recruited after 31st October, 1966 were shown at Section No. 36 and the names of Respondents 2 and 3 figured at Section Nos. 5 and 6 at the page 36 and the promoted Sub -Divisional Officers from Sectional Officers appointed to Class II Service were shown at page 37 and the name of the Petitioner in that list was at Section No. 2 -A, note has been given in the Gradation List that inter se seniority of categories 3 to 5 i.e., temporary Assistant Engineers recruited after 31st October, 1966, officiating Sub -Divisional Engineers promoted from Sectional Officers and Officiating Sub -Divisional Engineers promoted from Draftsman will be decided in due course. It is further averred by the Petitioner that in the Gradation List corrected upto 1st January, 1984, again a note figures that inter se seniority of categories IV to IX will be decided in due course. The seniority was not finalised by the Government till 1987, when it was for the first time communicated to the Petitioner, - -vide their letter dated 27th February, 1987 (copy Annexure P -3), wherein the name of the Petitioner was shown at Section No. 7 and that of Respondent Nos. 2 and 3 had been depicted at Section Nos. 9 and 10, respectively. Before the determination of inter -se seniority between the members of Class II recruited from different sources, the Petitioner averse that in the year 1978, two vacancies of Executive Engineers fell vacant which were to be filled by promotion from the members of Class II Service in accordance with the provisions contained in Punjab Service of Engineers, Class I, P.W.D. (Building & Roads) Branch Rules, 1960, hereinafter referred to as Class I Rules. The Petitioner apprehending that his name was not being sent in the panel for promotion for Executive Engineer and the name of Respondent No. 2, Sat Pal Sikka, who was junior to him, was being considered, made a representation on 28th May, 1978, (Annexure P -1) to Respondent No. 1 requesting for fixation of inter se seniority of the Sub -Divisional Engineers (Mechanical) and considering his case for promotion to the post of Executive Engineer (Mechanical), but Respondent No. 1 promoted Respondent No. 2. Shri Sat Pay Sikka, - -vide its order dated 5th October, 1978 (Annexure P. 2). Similarly, Shri Ishwar Kumar Madan (Respondent No. 3) was promoted on purely temporary ad hoc basis. These promotions were made without deciding the claim of the Petitioner, who was senior to both Respondents No. 2 and 3 and having 7 years experience while Respondents No. 2 and 3 had 5 years experience in Class II Service. The Petitioner contends that it appears that he was ignored because he is a Diploma holder and Respondent No. 1 took the erroneous view that degree in Engineering is a prerequisite condition, for promotion from Class n to Class I Service. It is further maintained that in the year 1980, a vacancy of Executive Engineer (Mechanical) fell vacant and the name of the Petitioner was approved by the Screening Committee but Respondent No. 1 promoted Shri O.P. Behal who was earlier reverted on 22nd December, 1976 and his reversion was set aside by the High Court in C.W.P. No. 1012 of 1978, decided on 18th March, 1980. It is further stated that Respondent No. 3 earlier promoted on ad hoc basis to Class I was reverted on 6th February, 1981 and in his place, Shri Harbans Lal was promoted by the Government with effect from the same date, but his promotion was made retrospective with effect from 14th December, 1978, when person junior to him i.e. Sat Pal Sikka was promoted. The Petitioner then made numerous representations to Respondent No. 1 for fixing inter se seniority and for consideration of his case for promotion, but to no effect. Again, a vacancy of Executive Engineer (Mechanical) had occurred and Respondent No. 1 was again trying to ignore the Petitioner and wanted to promote Ishwar Kumar Madan, Respondent No. 3 although the latter is junior to the Petitioner. It is further averred that promotion to Class I Service from Class II Service is governed by Rules 5 and 6 of the Class I Rules. Rule 5 provides the method of recruitment to the Service while Rule 6 prescribes the requisite qualifications. According to Rule 6(b), the Petitioner was fulfilling the condition for promotion from Class II to Class I Service and that degree in Engineering is not a pre -requisite condition for promotion to Class I Service from Class II Service, as interpreted by the Apex Court in the case of A.S. Parmar etc. v. State of Haryana and Ors., 1984 (1) S.L.R. 54.
(2.) THE Petitioner further avers that in order to nullify the effect of the judgment of the Apex Court in A.S. Parmar's case (supra), the Haryana Government amended the Rules, - -vide notification issued on 14th January, 1985. This amendment was made retrospective from 18th March, 1960, i.e. from the day from which the Class I Rules were framed and Rule 6 was amended by substituting new clauses in this rule and in Rule 9, Sub -rule (1) proviso was substituted by a new proviso making the members of Class II Service with Diploma qualifications entirely ineligible for promotion to Class I post. The Petitioner contends that these amendments having been made without the prior approval of the Central Government as required under Section 82 of the Punjab Reorganisation Act, 1966 because it tantamount to taking away accrued right of the Petitioner and were ultra vires. The State Government also violated Articles 14 and 16 of the Constitution of India. It is further maintained that the Haryana Government made similar amendments in the Punjab Service of Engineers Class I, P.W.D. (Irrigation Branch) Rules, 1964 by issuing notification dated 22nd June, 1984. That notification was challenged in the Apex Court in T.R. Kapur and Ors. v. State of Haryana : A.I.R. 1987 S.C. 415 and the Apex Court quashed the notification being violative of Articles 14 and 16 of the Constitution as well as violative of Section 82 of the Punjab Reorganisation Act, 1966. It is further averred that Notification dated 14th January, 1985 Annexure P.4 was quashed by this Court in B.M. Sharma v. The State of Haryana, 1987 (5) S.L.R. 531. The Petitioner again made representation to Respondent No. 1 to consider his case on the basis of the judgment of the Supreme Court in T.R. Kapur's case and of the Division Bench of this Court in B.M. Sharma's case as the Petitioner is being ignored for promotion only on the ground that he is a Diploma Holder and thus not eligible for promotion. But on getting no response from the department and on learning that after the decision of the High Court in B.M. Sharma's case, Respondent No. 1 is bent upon promoting Ishwar Kumar Madan, Respondent No. 3 by ignoring the Petitioner and the promotion papers of Respondent No. 3 had been sent to the Chief Minister for approval, the Petitioner had filed this writ petition under Articles 226 and 227 of the Constitution for issuing a writ in the nature of Mandamus directing Respondent No. 1 to consider and promote the Petitioner from the date the person junior to him was promoted as Executive Engineer in Class I Service and writ of Prohibition or other writ or order directing Respondent No. 1 not to issue the order of promotion of Respondent No. 3 and to consider the case of the Petitioner for appointment on this post by ignoring the provisions of amended Rule Annexure P.4. The Petitioner had raised the following law points in the petition: (i) Whether the Petitioner is entitled to be considered for promotion to post of Executive Engineer in Class I Service from the day his juniors were promoted specially in the circumstances when the seniority of the Petitioner vis -a -vis Respondent No. 2 and 3 and other members of Class II Service was fixed for the first time in January 1987? (ii) Whether Respondent No. 1 can ignore the Petitioner for promotion to Class I post of Executive Engineer on the basis of amendment made in Class I Rules Annexure P.4 which has been declared ultra vires by the Hon'ble High Court while deciding the case of B.M. Sharma v. State of Haryana? (iii) Whether Respondent No. 1 can promote Respondent No. 3 a person junior to the Petitioner in seniority list by ignoring the Petitioner merely on the ground of not having a degree qualification in Mechanical Engineering contrary to the ratio of the decision given in the case of A.S. Parmar v. State of Haryana, reported in, 1984 (1) S.L.R. 454? (iv) Whether the action of the Respondent in not considering the case of the Petitioner for promotion from back date when persons junior to him were promoted is discriminatory and violative of Articles 14 and 16 of the Constitution specially in the circumstances when the Petitioner and Respondent No. 2 are members of the same class of service? The writ petition was resisted by all the Respondents. In the return filed on behalf of Respondent No. 1, by Smt. Ved Kumari, Deputy Secretary to Government, Haryana, P.W.D. B & R Branch, it was averred that the Petitioner was promoted as Sub -Divisional Engineer H.S.E. Class 11 on provisional basis for a period of six months under Rule 6(4) of Class II Rules after giving relaxation in service experience from 10 years to 8 years under Rule 7(2) of Class II Rules as on the basis of experience he was not eligible for promotion on 19th June, 1971. The Petitioner was subsequently appointed to Class II on 25th October, 1972 retrospectively with effect from 19th June, 1971, - -vide order Annexure P. 2 substituted, - -vide Government subsequent letter bearing same number and date. It was further explained that Respondents 2 and 3 joined Class II Service on 21st December, 1972 and 9th November, 1972, respectively as temporary Assistant Engineers (Under Training) and not on 21st June, 1973 and 9th May, 1973 as represented by the Petitioner and that the above -referred dates quoted by the Petitioner are the dates when Respondents 2 and 3 completed their training. It was further admitted that seniority between the members of Class II Service (Mechanical Wing) was fixed under Rule 12 and was circulated for the first time in 1987. It was, however, averred that the representation dated 28th May, 1978 filed by the Petitioner was rejected by Respondent No. 1 and the Petitioner was accordingly informed through his controlling authority Superintending Engineer (Mechanical) Karnal - -vide letter dated 22nd December, 1978 (copy Annexure R. 4) issued by the Engineer -in -Chief. It is further admitted that in the above -said seniority list, the seniority of the Petitioner was shown at Section No. 7 but now it is under assail as Respondents 2 and 3 had challenged the same. The allegation of the Petitioner that his name was not considered for the panel of promotion along with Respondents 2 and 3 on 17th April, 1978 and 20th June, 1979 was refuted. On the other hand, it was maintained that the name of the Petitioner was also considered at proper place i.e. above Respondents 2 and 3 but he was not found suitable for promotion being ineligible to be considered for promotion on account of his not fulfilling the conditions of eligibility as laid down in Rule 6(a) and (b) of Class I Rules as Degree in Mechanical Engineering and 8 years service experience was required and the Committee constituted for considering promotion allowed relaxation in service experience to Respondents 2 and 3, who are degree holders, from 8 years to 6 years, whereas in the case of the Petitioner two relaxations were required, i.e. relaxation in degree qualification and 8 years service experience. The Petitioner had no right to relaxation in service experience and degree qualification at each and every stage of promotion, especially when the Petitioner was allowed relaxation in service experience from 10 years to 8 years at the time of promotion as Sub -Divisional Engineer from post of Junior Engineer in 1971. Thus, it was maintained that the Petitioner was rightly ignored by the department for promotion in the year 1978. The allegation of the Petitioner that the Screening Committee in the year 1980 had approved his name but it was rejected by Respondent No. 1. was contradicted. On the other hand, it was maintained that the Committee in its meeting held in the year 1980 considered the names of Sarvshri O.P. Behal and Harbans Lal who were undisputedly senior to the Petitioner. It was further averred that in the meeting of the Screening Committee held on 27th February, 1987 to consider the names of eligible Sub -Divisional Engineers (Mechanical) for promotion to the post of Executive Engineer, name of the Petitioner was not considered as he was not having Degree Qualification as required under Rule 6 (b) of Class I Rules duly amended. - -vide notification dated 14th January, 1985. Respondent No. 3, who is a degree holder was found suitable for promotion against the post available during the year 1987. As the Petitioner became eligible for promotion after the amendment of the above Rules, and the vacancy cropped up on 1st September. 1987, it was not a ease of retrospective application of the amended Rules and thus it was contended that the judgment of the Division Bench of this Court in B.M. Sharma's case is of no help to the Petitioner because in that case only the retrospective operation of the Rules was quashed and not the amended Rule itself. It was also asserted that the department had not amended the rules to nullify the ratio of the decision of the Supreme Court in A.S. Parmar's case. It was further denied that the said amendment had violated the provisions of the Punjab Reorganisation Act as the Petitioner was promoted as Sub -Divisional Engineer on 19th June, 1971 only after the formation of Haryana State and thus the provisions of the above -referred Reorganisation Act were not attracted. It was also maintained that the decision of the Supreme Court in T.R. Kapur's ease is not applicable to the case of the Petitioner and that the Petitioner in the writ petition had misstated the facts for undue gain.
(3.) RESPONDENTS 2 and 3 had also filed joint return supporting the above -referred version of Respondent No. 1 besides contending that as the Petitioner was appointed as officiating Sub -Divisional Engineer only and had not been confirmed even till this date, he is not a member of Class II Service. They also claimed themselves to be senior to the Petitioner on the basis of quota and rota rule in accordance with Class II Rule. They also gave the details of availability of the earlier vacancies and the appointment of persons from different sources to Class II Service.;