I.S. Tiwana, J. - (1.) WHAT is the true import of the exemption granted under Rule 12 of the Punjab State Assistant Grade Examination Rules, 1984 (for short, the 1984 Rules), is the primary question that comes to the fore in these two Civil Writ Petitions Nos. 366 and 335 of 1990. The learned Counsel for the parties are, however, agreed that for determining this question the facts of either of these two petitions may be noticed. We have, therefore, chosen to refer to the records of CWP No. 366. The relevant facts are as follows.
(2.) THE Petitioners joined the service of the State Government as Clerks some time after 1st November, 1956 and at that time they were concededly governed by the Punjab Financial Commissioner's Office (State Service Class III) Rules, 1957 (hereinafter referred to as the 1957 Rules). Rules 6(f) and 7(1) (e) (i) of these rules made it incumbent on these employees to qualify the test prescribed therein before they could be promoted to the next higher post of Assistant. The vires of these rules were challenged by some of the employees of the erstwhile Pepsu Government who had come over to the Punjab State Government after the merger of the two States, i.e., Pepsu and Punjab with effect from November 1, 1956, as a result of the State Reorganisation Act, 1956. The challenge was on the ground that these rules were violative of the proviso to Section 115(7) of the Act which laid down that conditions of service applicable immediately before the appointed day to the case of any person allotted to the new State shall not be varied to his disadvantage except with the; previous approval of the Central Government. A Division Bench of this Court upheld this challenge and ruled that the said rules were invalid as these had been made effective in contravention of the statutory protection afforded to the employees of the erstwhile State of Pepsu by the proviso to Sub -section (7) of Section 115 of the Act. See Sat Pal Sharma and Anr. v. State of Punjab and Ors., 1968 (2) S.L.R. 484. This judgment was pronounced on March 22; 1968. But for Petitioner No. 11, Surjit Singh Bhatti, all the other ten Petitioners were promoted as Assistants during the interregnum June 3. 1968 to January 1, 1976. i.e., after the pronouncement of the above noted judgment. Though all the eleven promotions of the Petitioners were made against the quota reserved for Scheduled Castes and Backward Classes, yet these were made on provisional oasis as they had not passed the qualifying test prescribed in the 1957 Rules. by and by, some of the Petitioners were even promoted as Superintendents Grade II, Grade I or even as Under Secretaries by the time the 1957 Holes were overridden by the 1984 Rules, i.e., with effect from April 12, 1984. Some of these promotions were later challenged, -vide C.W.P. No. 963 of 1975 (Kundan Singh and Ors. v. State of Punjab and Ors.) but the same was dismissed on February 17, 1983 with the observation that the provisional promotions - granted to the Respondents (now Petitioners) could not justifiably be questioned on the ground of their not having passed the prescribed test These latter rules once again laid down -vide Rule 4 that no person shall be eligible for appointment by promotion to the post or Assistant unless in addition to fulfilling the qualifications and experience prescribed for appointment by promotion to the post of Assistant, he qualifies the test. The third proviso to Sub -rule (1) of this rule further laid down that a person who had been appointed by promotion to the post of Assistant or to any higher post on provisional basis before the commencement of these rules, shall be required to qualify the test within a period of three years from such commencement and failure to qualify the test within the specified period shall result in reversion of such person to the post of Clerk, or to the post by whatever designation called from which he was appointed by promotion to the post of Assistant on provisional basis. Certain categories of persons were, however, exempted from qualifying this test. but in these cases we are not concerned with those categories of Employees. The vires of this rule were challenged by some of the Petitioners and other similarly situated persons, -vide C.W.P. Nos. 2490, 3067, 3069 and 3181 of 1984 on a wide variety of grounds, Before these petitions could, however, be disposed of on merits, the State Government passed an order on May 2, 1985 (Annexure P -2) in exercise of its powers under Rule 12 referred to above. The operative part of this, order reads that "the President of India is pleased to exempt from qualifying the Assistant Grade Test, all such persons who had, prior to the coming into force of the aforesaid Rules (1984 Rules), been appointed by promotion on provisional basis to the post of Assistant or to any higher post as defined in Rule 2(e) and Rule 2(d) respectively of the Rules ibid." This exemption was, however, made subject to any order passed by the Judicial 'Courts in the cases decided or pending, pertaining to different departments. As a result of this order of the State Government, the above noted writ petitions challenging the vires of 1984 Rules Were dismissed by this Court on May 7, 1985, as infructuos, Still later, - vide Annexure P. 4, dated October 8, 1987, it was notified by the Financial Commissioner that the exemption granted to 195 persons including the Petitioners, -vide Annexure P.2, was to be operative with effect from May 2, 1985, i.e., the date on which the order Annexure P.2 was passed. As per the stand of the Petitioners, this order Annexure P.4 is totally illegal and ineffective as according to them the exemption granted to each one of them became operative with effect from their respective dates of promotion as Assistants, it deserves to be noticed here that somewhere in the year 1987, one Avtar Singh, who had qualified the test prescribed m Rules 6(i) end 7(l)(e)(i) of the 1957 Rules, and had been promoted as Assistant with effect from September 30, 1964 challenged the seniority list of the Assistants issued, -vide order dated January 30, 1981 on the ground that the seniority of all the Employees including the Assistants of the erstwhile State of Pepsu could not be clubbed together. In other words, the seniority of the persons who had been appointed as Assistants prior to the framing of the 1951 Rules, could not be determined under the later mentioned Rules. The Court, after noticing the judgment in Sat Pal Sharma's case (supra) came to the conclusion that the said judgment did not invalidate Rules 6 and 7 of the 1957 Rules and the only import of the said judgment was that the said Rules were not to govern the service conditions of the Employees who had been appointed as Assistants prior to the coming into force of those Rules. Therefore, the impugned seniority list was quashed. This judgment has concededly been upheld upto the Supreme Court. As a result of this judgment, a fresh tentative seniority list of Assistants including the Petitioners was prepared treating the Petitioners to have been regularly appointed to the posts of Assistants with effect from May 2, 1985. Some of the Petitioners as also some others filed objections to this list on the plea that exemption granted to them, -vide Annexure P.2 could not be limited or applied with effect from May 2, 1985 only. Rather it has to be taken as operative and effective from the very date they had been promoted as Assistants. However, this plea of theirs was not accepted by the State authorities and, -vide order dated December 21, 1989 (Annexure P.5) the seniority of the Petitioners was made final, i.e. treating them to have been promoted as Assistants with effect from May 2, 1985. As a result of this fixation of seniority, the Respondent authorities have passed the impugned orders, Annexures P.6 to P.8, reverting some of the Petitioners to the lower posts.
(3.) AS is well indicated by the above narration of facts, the total claim of the Petitioners is that the exemption granted to them, -vide Annexure P.2 is to be operative with effect from their respective dates of promotions (though provisional) as Assistants and it cannot be taken to be operative only with effect from May 2, 1985 as is sought to be done by the Respondent authorities. As against this the firm stand of the Respondent authorities is that since Rules 6(f) and 7(l)(e)(i) of the 1957 Rules which laid - down the qualifying of the test as a condition precedent for promotion to the post of Assistant, were held to be ineffective in Sat Pal Sharma's case (supra) only qua the employees who had entered the service prior to the enforcement of the State Reorganisation Act, 1956 and were not declared to be void or unconstitutional in any other manner, these rules continued to be operative and effective quo those employees who like the Petitioners joined service after the enforcement of the 1957 Rules. It was in the light of these rules that the Petitioners were granted provisional promotions only without conferring any right of seniority or any other right for future promotion, etc. As a matter of fact it was so stated in the promotion order of' each one of the Petitioners and at the time of granting subsequent further promotions to different posts. With the, enforcement of, the 1984 Rules, it was imperative for the Petitioners in the light of Rule 4 thereof to qualify the test as they had been promoted as Assistants on provisional basis only. The exemption granted to the Petitioners, as done, -vide Annexure P. 2, dated May 2, 1985 could only be granted prospectively as envisaged by Rule 12 of the 1984 Rules. They cannot possibly claim the benefit of this exemption with effect from their respective provisional promotions as Assistants which on the face of it would tantamount to granting them exemptions retrospectively and this is not permissible under the Rules. It is further pointed out by these authorities that in pursuance of the ratio of the judgment in CWP No. 6169 of 1987 (Avtar Singh v. The State of Punjab and Ors.), decided by this Court oh June 1, 1989, a tentative seniority list of the Assistants was circulated on August 29, 1989 and only Petitioners No. 3 and 4 had filed objections to the same. Since the objections were devoid of any merit, the same were rejected and the final seniority list was issued on December 21, 1989 (Annexure P.5). ' According to these authorities, in view of the clear language of Rule 12 of the 1984 Rules the exemption granted, -vide order dated May 2, -1985, has to be made effective prospectively. Therefore, the Petitioners have tightly been treated to have been promoted as Assistants on regular basis with effect from May 2, 1985. In the light of this: fixation of 'their seniority, the consequential reversions of some of the Petitioners were unavoidable and have been so ordered.;