K.Kannan - (1.) THE petitioner, who was a Clerk in the office of Assistant Excise and Taxation Commissioner, seeks for consideration of his claim for appointment to the post as Excise and Taxation Officer and a further declaration that the private respondents 3 and 4, who had been holding posts as Accountants in the office of the Assistant Excise and Taxation Commissioner, are not entitled to appointment by transfer under the Punjab Excise and Taxation Department (State Service III-A) Rules, 1956 (hereinafter called as, '1956 Rules').
(2.) THE petitioner's case is that he had been appointed as a Peon on 01.07.1965 in the office of the Commissioner, Excise and Taxation, second respondent herein, and subsequent to his initial appointment, he had passed his matriculation examination in the year 1968. As per the instructions issued by the State on 25.04.1972, there was 10% quota for promotion from Class-IV posts of persons, who had completed their matriculations. THE petitioner had been promoted by virtue of the instructions to the post of a Clerk on 09.06.1972. THE initial order of appointment was as a temporary Clerk, but his services were regularized subsequently on 23.04.1983 w.e.f. 01.04.1977. THE petitioner would urge that it ought to have been given effect from 09.06.1972 itself instead of from the year 1977. The seniority list had been issued and the petitioner had a grievance that wrong date of regularization was coming in the way and therefore, he had filed CWP No.16379 of 1989. Even when the case was pending, respondents 1 and 2 were undertaking an exercise of regular appointment to the post of Excise and Taxation Officers under the 1956 Rules. The Rules provided method of recruitment in 3 ways: (i) by promotion from the cadre of Excise Inspectors and Taxation Inspectors, who have served as such for a period of at least 3 years; (ii) by transfer of members of the ministerial establishment of Excise and Taxation Department, Punjab; and (iii) by competitive examination. Rule 6 of the 1956 Rules provided that in the manner of appointment to the service, 50% of the posts would be filled up by direct recruitment and 25% by way of promotion from Taxation Inspectors; 12 ?% by promotion from Excise Inspectors and 12?% by transfers of members of the ministerial establishment of the Excise and Taxation Department. The petitioner would stake his claim to his appointment to the post of Excise and Taxation Officer by way of transfer in the manner contemplated by Rule 5 of the 1956 Rules from the ministerial establishment. The procedure for appointment by transfer is regulated by Rule 9 of the said 1956 Rules, which stipulates 3 conditions: (i) he should have completed 5 years of continuous service; (ii) he should not have attained the age of 40 years on or before the first day of October immediately before the date on which the names are considered for appointment; and (iii) he should be a graduate of recognized University. The Government had a power to relax the age limit and educational qualifications in suitable cases. The petitioner would contend by a conjoint reading of the rules, he was entitled to be considered for the post of an Excise and Taxation Officer by a transfer by virtue of the fact that he fulfilled all the necessary conditions, namely, that he had not completed 40 years of age; he having been born on 30.12.1949, and that he had also obtained a degree from the Panjab University, Chandigarh, in the year 1987. The petitioner's grievance, however, is that without considering his claim, respondents 3 and 4 had been considered for appointment by transfer. Both of them were Accountants and there was no provision for appointment by transfer to the post of Excise and Taxation Officer from the post of an Accountant under Rules 5 and 6. The ministerial establishment itself had not been defined under the 1956 Rules and, therefore, the Punjab Civil Services Rules, Volume-I, Part-I, Rule 2.40 which was to be applied in such instances, was to be applied. As per the said Rules, the "ministerial employee" means a Government employee belonging to Provincial Service, Class-III whose duties are entirely clerical and any other class of Government employees specifically defined as such by general or special order of the competent authority. The note added to the Rules excluded members of Class- II service whose duties are predominantly clerical. The petitioner would assert that there was no rule of the Government declaring the Accountant to be a 'ministerial employee'.
(3.) THE averment in the petition would further disclose that even in the Punjab Excise and Taxation Department Subordinate Offices (Ministerial) Class-III Service Rules, 1964, the post of Accountant was not a post belonging to the ministerial establishment of the Excise and Taxation Department. Consequently, the respondents 3 and 4 could not have been appointed to the post of Excise and Taxation Officers. THE petitioner would point out that respondents 3 and 4 themselves had been members of the cadre of Clerks before their appointment as Accountants. THE petitioner himself was borne in the same division and he had been actually senior to the respondents 3 and 4 in the cadre of Clerks. THE seniority list had been issued on 31.03.1983 followed by another seniority list issued on 31.12.1987. THE latter seniority list was actually circulated only on 01.10.1989 and it had wrongly shown respondents 3 and 4 as seniors at serial No.231 and 232, while it recorded the petitioner at serial No.254. Respondents 3 and 4 had themselves joined the cadre of Clerks only w.e.f. 19.02. 1977, while the petitioner had been holding the post of a Clerk w.e.f. 09.06.1972. THE seniority list for the year 1989 was not finalized and as such, the petitioner was, therefore, entitled to be treated as senior to the respondents 3 and 4 even in the ministerial cadre. THE tentative seniority list drawn in the year 1989 was erroneous and the appointment could not have been offered to respondents 3 and 4 on that basis.;