AUGUSTINE GEORGE MASIH,J. - (1.) BY this order, I propose to decide CWP No. 14815 of 2011 titled as Satguru Singh and others vs. State of Punjab and others and CWP No. 14937 of 2011 titled as Parminder Singh and others vs. State of Punjab and others as in these cases challenge is to the Advertisement dated 08.07.2011 (Annexure P-4) published in The Tribune newspaper by the Subordinate Services Selection Board, Punjab (hereinafter referred to as 'Board') seeking to fill up all the newly created 100 posts of Excise and Taxation Inspectors by way of direct recruitment in violation of the quota provided for under the Punjab Excise and Taxation Inspectors (Group-C) Service Rules, 2008 (hereinafter referred to as '2008 Rules') (Annexure P-2). Briefly, the facts, which would be relevant for disposal of these writ petitions, are that the petitioners are working as Junior Assistants in the subordinate offices of the Excise and Taxation Department, Punjab. The claim of the petitioners is to the posts, which are earmarked for promotion to the post of Excise and Taxation Inspectors under the 2008 Rules. Under Rule 3 of the said Rules, number and character of posts in the service have been referred to, according to which, the service shall comprise of posts specified in Appendix 'A' to the Rules. Proviso to this Rule gives an inherent right to the Government to add or reduce the number of such posts or to create new posts with different designations or scales of pay, whether permanently or temporarily. As per Appendix 'A', there are 389 permanent, 141 temporary, total 530 posts of Excise and Taxation Inspectors. As per Rule 5, method of appointment, qualification and experience to the service shall be made in the manner as specified in Appendix 'B'. Proviso to sub-rule (1) of this Rule states that if no suitable candidate is available for appointment by promotion and by direct recruitment, then appointment to the service shall be made by transfer of a person holding a similar or an identical post under a State Government or Government of India. As per Appendix 'B', percentage for appointment to the post of Excise and Taxation Inspector has been provided as 50% by direct recruitment and 50% by promotion. Under the sub-head 'Method of appointment, qualification and experience for appointment by' promotion to the post of Excise and Taxation Inspectors is to be made from amongst the Junior Scale Stenographers and Clerks of the Headquarters' Office and Subordinate Offices of the Office of the Commissioner, who possesses the requisite qualification of graduation and experience of five years in the case of Junior Scale Stenographers and 10 years in the case of Clerks besides working experience of 120 hours in the course with working experience in the use of Personal Computers etc. The qualification to the post of Inspectors through direct recruitment need not be mentioned as it would not be relevant to the present case. From the above, it can safely be said that out of the 530 sanctioned posts, as per Appendix 'A', of Inspectors, 265 posts would fall to the quota of direct recruits and 265 posts to the promotee quota.
(2.) IT is the assertion of the petitioners that the respondent- department has followed a policy of discrimination towards the departmental candidates and had been diverting the posts falling in the promotional quota to the direct quota in violation of the statutory Rules. In the meantime, on account of imposition of luxury tax, Government of Punjab approved creation of 24 more posts of Inspectors on 09.02.2010. As per the statutory Rules, 12 posts out of the said newly created 24 posts had to be allocated to promotee quota and the remaining 12 posts should have gone to the direct quota. However, the respondents diverted all these newly created 24 posts to direct quota and filled up the same from the candidates who had applied against the 160 advertised posts in the year 2009. As a matter of fact, these 24 posts, which were filled up, were never advertised. In April-May 2010, again a proposal was moved by the Administrative Department for creation of 100 new posts of Excise and Taxation Inspectors in view of increased work-load. Approval was granted by the Government for creation of these 100 posts. When the petitioners came to know that these posts were also being diverted to the direct quota and were to be filled up by direct recruitment, a representation dated 07.04.2011 was submitted by the association of the employees requesting therein that 50 posts out of the 100 newly created posts should be earmarked for the promotee quota as per the Rules. This request appears to have been not accepted by the respondents and they issued an advertisement dated 08.07.2011 (Annexure P-4) in the newspaper "The Tribune' to fill all the newly created posts by direct recruitment. It is at this stage that the petitioners have approached this Court challenging the advertisement on the ground that 50 posts out of these newly created 100 posts should not be filled up through direct recruitment and the same should fall to the quota of promotees. The case came up for hearing on 17.08.2011 when notice of motion was issued and an interim order was passed to the effect that selection, if any, shall take place subject to the pendency of the writ petition but no order of appointment shall be issued for 50% of the posts which are advertised. On 13.12.2011 when the case was listed for hearing, counsel for the State had submitted that at present, there are 289 posts in the direct recruitment quota and 265 posts in the promotional quota. He further submitted that the State intends to maintain the same ratio in future as well. In case the posts are allowed to be filled up pursuant to the selection conducted, the same shall be adjusted in anticipation of vacancies likely to occur in direct quota. Time was sought by the counsel for the State to seek instructions and apprise the Court as of in how much time 100 vacancies to the share of direct quota are likely to occur. An additional affidavit was filed in Court on 10.01.2012 and in pursuance thereto and considering the same, this Court passed the following order:- " Additional affidavit of Surinder Riar, Additional Excise and Taxation Commissioner [Admn.], Punjab filed in Court is taken on record. As per the averments made in Para 4 of the said affidavit, there are 26 vacant posts of Excise and Taxation Inspector, whereas 2 posts will fall vacant by 31.01.2012 as two Inspectors are said to have submitted their resignation. One more post will fall vacant on 30.04.2012 on retirement of the present incumbent. Six more posts are likely to fall vacant on their promotion. In this manner, there are 35 [26+2+1+6] existing and future vacancies. Rest of the calculations made in the affidavit are, prima facie, speculative or un-foreseen vacancies. In this view of the matter, it is clarified that the respondents for the time being, may go ahead for appointment of 35 Excise and Taxation Inspectors. While doing so, reservation policy shall be strictly adhered to. However, liberty is granted to move an application at an appropriate stage to seek further appointments in the event of availability of actual vacancies out of the direct recruit quota. Adjourned to 02.04.2012. Dasti."
(3.) THEREAFTER , applications were filed by the selected candidates for impleading them as party respondents to the writ petition as respondents No. 4 to 29 which were allowed. Reply to the writ petition has been filed by the respondents, wherein it has been stated that when the Government decided to create 100 posts of Excise and Taxation Inspectors, it was clearly mentioned in the memorandum sent to the cabinet that these posts will be adjusted against the post of direct quota to be vacated in future and it will not affect the promotion from clerical cadre to Excise and Taxation Inspectors. The apprehension of the petitioners is unfounded, copy of the memorandum dated 15.03.2010 is appended as Annexure R-2. Explaining the position with regard to filling up of 24 created posts on 09.02.2010 by way of direct recruitment, it has been asserted that these posts were created as the luxury tax was sought to be imposed by the Government and there was shortage of Inspectors. However, all the promotees, when their turn comes, will be adjusted against their own promotional vacancies and the direct Excise and Taxation Inspectors would work against their own cadre strength. It has further been stated that the 100 newly created posts, which are sought to be filled up by the direct recruits, will work temporarily against the vacant posts of Excise and Taxation Inspectors. At present, 132 clear posts of Excise and Taxation Inspectors meant for direct recruitment are lying vacant and 68 vacancies are likely to occur in near future. They will be adjusted against direct quota vacancies as and when vacancy arises. A one time measure has been taken by the State to recruit 100 Inspectors by exercising powers under Section 19 of the 2008 Rules by way of direct recruitment. This Section confers powers on the Government to relax any of the provisions of the statutory Rules with respect to any class or category of persons by recording reasons in writing. It has further been clarified that the quota of vacancies or promotions will be given to the petitioners as per Rules.;