Sukhdev Singh Kang, J. - (1.) Chandi Ram has filed this writ petition under Articles 226/227 of the Constitution of India, for the issuance of a writ in the nature of mandamus, directing the respondents to reconsider the promotions to the posts of Assistants.
(2.) A brief survey of the facts will illumine the contours of the controversy falling for determination in this writ petition. The petitioner was promoted as an Election Kanungo on Jan. 7, 1959, whereas Vishnu Kumar, respondent No. 3 was promoted as Election Kanungo on July 5, 1960. The petitioner is, thus, senior to Vishnu Kumar, respondent No. 3 in the cadre of Election Kanungos. The seniority list of the cadre of Election Kanungos was circulated in 1974 and in that list, the petitioner's name figured at No. 16, whereas the name of respondent No. 3 was shown at serial number 24. The Chief Secretary to Government, Punjab, issued instructions dated Oct. 23, 1957 and Sept. 5, 1958 that clerks who passed the Assistant Grade Examination shall be promoted to the post of Assistants. Respondent No. 3 passed this examination. Other Election Kanungos, including the petitioners, who were senior to the respondent No. 3, had not passed this examination. Solely due to the reason that respondent No. 3 had passed this examination in 1962, he was promoted as Assistant from 14-3-1966. At that time, the case of the Kanungos including, the petitioner, who were senior to respondent No. 3, was not considered for appointment, because they have not passed the prescribed test. Some employees of the then Punjab Government challenged the legality and validity of these instructions issued by the Chief Secretary. This Court held that the instructions are ultra vires. This decision was upheld by the final Court in State of Haryana & others Vs. Shamsher Jang Bahadur & others, 1972 SLR 441 . Consequent upon the instructions of the Chief Secretary laying down a test of passing the Assistant Grade Examination, having been declared ultra vires of the Constitution, the Government considered the whole matter thoroughly and decided to take certain steps to implement the decision of the Supreme Court in letter and spirit. They were issued in the form of a circular, copy of which is appended as Annexure P2, to this writ petition. The Petitioner made a representation to the Government that respondent No. 3 had been illegally promoted as Assistant though he was junior to him and the other officials in the Department, simply because he had qualified the Assistant Grade Examination. This matter should now be reviewed in the light of instructions Annexure P2. The representation was, however, rejected vide orders dated Dec. 29, 1977. Aggrieved, he has filed the present writ petition.
(3.) The respondents Nos. 1, 2 and 4 have filed written statement, broadly admitting the case of the petitioner. It has been pleaded that the petitioner was not eligible to be considered for promotion on March 14, 1966 when respondent No. 3 was promoted. They have, however, admitted that in view of the instructions Annexure P2 all those persons who were senior to the petitioner, were entitled to be considered for promotion on March 14, 1966. The other Kanungos, however, did not make any representation. The Election Kanungos who were senior to the petitioner at the time of promotion of respondent No. 1 could be considered and the senior-most Kanungo amongst them, if found suitable, should be promoted on this post. Respondent No. 3, in his written statement, has, however, tried to urge that he has not been promoted as Assistant, because he had passed the Assistant Grade Examination. This assertion, however, cannot be accepted in view of the clear admission of the official respondents that respondent No. 3 had been promoted, because he had passed the Assistant Grade Examination.;