- (1.) O.P. Bhagat, who has since retired during the pendency of this petition, has taken exception to order of promotion of B.I.S. Brar-respondent No. 3, which promotion, he pleads, was given without considering his claim and prior right to the post of Joint Provincial Transport Controller. The facts need a necessary mention.
(2.) Petition was appointed as General Manager on August 18,1972. He successfully completed his two years probation period as General Manager and, thus, came to occupy the said post on substantive basis. Earlier, the post of Secretary Regional Transport Authority was one of the source from which one could be promoted as General Manager but lateron the posts of Secretary, Regional Transport Authority as well as General Manager were equated with common seniority and inter-transferable with each other till the year 1980 when the department of Transport was split up into two wings known as 'Commercial Wing' and 'Non-Commercial Wing'. The appointments to the posts of Deputy Transport Controller/Deputy Director State Transport and Joint Provincial Transport Controller are governed under the Punjab Transport Department (State Service Class-I) Rules, 1963. Rule 6 deals with the method of recruitment to the aforesaid posts, relevant extract of which is as under:- "Recruitment of the service shall be made as under:- (a) In the case of Joint Provincial Transport Controller; (i) by promotion from amongst the Deputy Transport Controllers or; (ii) by transfer or deputation of an official already in the service of the State Government or of the Union Government; or (iii) by direct appointment. (b) xx xx xx (c) In the case of Deputy Transport Controller (T&C): (i) by promotion from the post of General Manager, Punjab Roadways having experience of working on that post for a minimum period of five years or by promotion from the post of Secretary, Regional Transport Authority, having an experience of working on that post for a minimum period of five years out of which atleast two years should be as General Manager, or has put in seven years service as Secretary, Regional Transport Authority, or (ii) by transfer or deputation of an official already in the service of the State Government or of the Union Government; or (iii) by direct appointment." It is pleaded that petitioner was eligible for appointment by way of promotion to the post of Deputy Transport Controller/Deputy Director State Transport on the basis of his qualifications and experience as prescribed in the Class-I service Rules. On July 26,1979 by order of Governor of Punjab, he was appointed as Deputy Director State Transport, Punjab in the Head Office at Chandigarh against a vacant post from the post of Secretary, Regional Transport Authority, Jalandhar. He continued to officiate and perform the duties of higher post of Deputy Director, State Transport Punjab in pursuance of the order dated July 30,1979 to the entire satisfaction of his superiors. Post of Joint Provincial Transport Controller became vacant on May 1,1973 after the death of one Gurjeet Singh and that post was given to one Saran Singh, who was promoted on May 4, 1978 as Joint Provincial Transport Controller. Shri Saran Singh retired on December 31, (sic) and the second point which became available was given to the candidate of non-scheduled caste, Shri Bachhiter Singh. On the retirement of Shri Bachhiter Singh on March 31,1980 the point again became vacant and was to be filled in by a member of Scheduled Caste. It is pleaded that petitioner being the only eligible candidate from the reserved quota, had acquired sufficient experience as Deputy Director, Punjab State Transport. The Secretary to Government of Punjab had written letter in consultation with the Legal Remembrancer for filling up the post of Joint Provincial Transport Controller from the candidate of reserved quota. On May 26, 1981 petitioner was appointed to Class-I post of Joint Provincial Transport Controller being candidate from the reserved quota. The Government vide letter dated June 20,1981 informed the Secretary to Government of Punjab, Department of Social Welfare of Scheduled Caste and Backward Classes that petitioner had been posted as Joint Provincial Transport Controller being a candidate from reserved quota. In the manner aforesaid, petitioner was working in Class-I service without any complaint. During that period, he was allowed to cross efficiency bar in the scale of General Manager of Rs. 940-1850 w.e.f. January 1, 1981 raising his pay from Rs. 1200/- to Rs. 1250/- vide order dated September 9, 1985 and then w.e.f. January 1, 1985 raising his pay from Rs. 1400/- to Rs. 1460/- vide order dated February 20,1986. He made repeated representations for considering his case for regularisation to the post of Joint Provincial Transport Controller, Punjab. On his repeated representations, the Secretary to the Government of Punjab-respondent No. 2 vide letter dated January 9,1987 requested the Government to decide his case for regularisation to the post of Joint Provincial Transport Controller but he was neither considered nor was he paid the salary of the said post, although he had been working as Joint Provincial Transport Controller. It was also stated in the said letter that in order to avoid hardships, his case for regularisation should be decided immediately as the same was hanging fire for the last so many years. Irrespective of the request, as mentioned above, respondent No. 3 vide order dated April 9,1987 was promoted and posted as Joint Provincial Transport Controller and petitioner was reverted to the post of District Transport Officer i.e. Class-II post. It is this order of promotion of respondent No. 3 and reversion of petitioner which has been challenged in this petition.
(3.) The only contention of Mr. Gopal Mahajan, learned counsel appearing for the petitioner is that the post of Joint Provincial Transport Controller became available in 1980 and at that time, admittedly, petitioner was the only eligible person to occupy the said post. However, this post was kept vacant even though petitioner was asked to officiate on the said post in his own pay scale till 1987 when respondent No. was promoted to the said post without considering his (petitioner's) claim. In the context of the fact that post became available in the year 1980 when petitioner alone was eligible, it is further maintained by learned counsel that consideration of the post under contention had to be taken at the time when the same became available and not seven years thereafter as has been precisely done in the present case.;