P.S. Patwalia, J. - (1.) By way of this writ petition filed under Articles 226/227 of Constitution of India, petitioner Kanwaldeep Singh who is working as Kanungo in the office of Deputy Commissioner Bathinda, has challenged the order dated 21.03.2006 passed by the Financial Commissioner Revenue and Secretary, Department of Revenue and Rehabilitation wherein the following findings have been given in respect of Subhash Singh arrayed as respondent No. 3 in the writ petition:- "Whereas the Revenue and Rehabilitation Minister heard Shri Ramesh Kumar and Shri Subhash Singh Kanungo in person whereafter a clarification was sought from the Director Land Records, Punjab regarding the condition of qualifying the departmental examination for promotion to the post of Kanungo regarding which he has informed that after the issue of instructions dated 20.12.1982, the Govt. have dispensed with the departmental examination. A provision for refresher course was made in the new rules with effect from 9.11.1994. The first such refresher course was conducted on 17.4.1995. The Director Land Records also clarified that the refresher course was not applicable for the period from 20.12.1982 to 8.11.1994 and during this period, promotions of the patwaris to the post of Kanungo were being made on the basis of seniority cum merit. Besides this, the Director Land Records, Punjab also disclosed that the Hon'ble Punjab and Haryana High Court has decided in Civil Writ Petition No. 6840 of 1994 that the vacancies of Kanungo which had occurred between 23.5.1993 and 8.11.1994 be filled on the basis of a test to be held under the Rules of 1976. Whereas, Subhash Singh was promoted on 26.4.1994. According to the reply of the Director Land Records, Punjab only those employees who are promoted to the post of Kanungo during 23.5.1994 to 8.11.1994 were required to qualify the test whereas Shri Subhash Singh was promoted to the post of Kanungo on 26.4.1994 before this date and the condition of qualifying the test is not applicable on this employee. xx xx xx xx Therefore, after both the parties are heard by the Hon'ble Revenue and Rehabilitation Minister and after perusal of the record of the Deputy Commissioner Mansa and the Commissioner, Faridkot Division, Faridkot, the Govt. has ordered as under:- xx xx xx xx 2. Shri Subhash Singh is given seniority as Kanungo with effect from 8.5.1992 from which date this benefit is given to Shri Gurmail Singh and Ramesh Kumar who are junior to Shri Subhash Singh as patwari and his seniority is fixed in the cadre of Kanungo above the names of Shri Gurmail Singh and Shri Ramesh Kumar. Thereafter if he fulfills the condition of promotions, his name be considered for promotion to the post of Naib Tehsildar by the Commissioner, Faridkot Division, Faridkot." Counsel for the petitioner contends that conditions of service of Kanungos in the Revenue Department were initially governed by Punjab Kanungo Service (Class-III) Service Rules, 1976. As per Rule 8(2) a Patwari could be promoted to Kanungo only after he qualified a departmental examination. The Revenue Department issued executive instructions on 20.12.1982 vide which it was decided that the requirement of departmental examination should be dispensed with and some suitable course of proper duration should be devised and conducted to judge the proficiency and suitability of Patwaris for promotion to the post of Kanungo. Respondent no.3 was promoted as a Kanungo vide order dated 24.4.1994 wherein it was stipulated that he would have to qualify the Kanungo examination in accordance with the rules within two years. It is further the case of the petitioner that with effect from 09.11.1994 the 1976 rules were repealed and Punjab Kanungo (Class-III) Service Rules 1994 were promulgated and even as per these rules, a Patwari cannot be promoted as Kanungo unless he has undergone a refresher course as stipulated in Appendix-B of the said rules. The counsel contends that since respondent no. 3 has neither qualified the test under the 1976 rules nor undergone the refresher course under the 1994 rules, his promotion as a Kanungo should be declared to be illegal. The counsel submits that even if at this stage, respondent no. 3 is not liable to be reverted, he in any case can not be considered for further promotion till he passes test or the refresher course.
(2.) We are afraid we can not accept this contention in view of the judicial determination of this controversy in Civil Writ Petition No. 6849 of 1994 which has been placed on record by the petitioner himself as Annexure P-4. The action of the State Government in issuing the instructions dated 20.12.1982 dispensing with the departmental examination under the 1976 rules and not devising any other examination was challenged by certain patwaris. It was their case that no patwari could be promoted without passing the departmental examination and all promotions made on the basis of the 1982 instructions were against rules and should be undone. This court in the aforesaid judgment agreed with the petitioners that the instructions issued on 20.12.1982 were against law being in conflict with the statutory rules. It was noticed in the judgment that as a result of the instructions of 1982 and inaction of the Government in not devising any other suitable test, the requirement of departmental examination stood completely dispensed with. However while considering the question of relief to be granted to the petitioners, the court was of the opinion that promotions already made prior to the filing of the writ petition should not be disturbed and therefore relief was confined to declaring as illegal promotions made against the vacancies arising during the pendency of those writ petitions. Consequently only those promotions were declared illegal which were made against vacancies which occurred during the pendency of those writ petitions and up to the date the 1976 rules were repealed. The first writ petition was filed on 23.5.1994 and the rules were repealed on 8.11.1994. Thus, only promotions made against the vacancies arisen between these dates were declared illegal. The relevant observations of the Bench are as hereunder:- "The next relief prayed for by the petitioners is that the respondents should be directed to hold a test. Learned counsel for the respondents submit that such a direction should not be given as the 1976 Rules have been repealed by those of 1994. Indeed, it is so. The new Rules were promulgated on November 8, 1994. However, it is the admitted position that under the law, vacancies which had arisen upto November 8, 1994, had to be filled up in accordance with the provisions of the 1976 Rules. Consequently, the question that arises is - should all the vacancies that have occurred from the year 1982 to November 8, 1994, be filled up on the basis of the test ? While answering this question, two things have to be kept in view. Firstly, the promotions made already prior to the filing of the writ petition, cannot be affected. Secondly, no specific challenge to any of the promotions have been made, such a relief can not be granted to the petitioners. Furthermore, even the persons promoted by different orders, except those impleaded in CWP Nos. 8494 and 8518 of 1994, are not even before this Court. Consequently, in the circumstances of this case, the direction to hold a test has to be confined to the vacancies which have occurred and have been filled up during the pendency of these writ petitions. The first of these petitions was filed in this court on May 23, 1994. Consequently, the vacancies which have been filled up during the pendency of this petition shall be covered by the directions in these cases. These vacancies shall be filled up by holding a test in accordance with the 1976 Rules."
(3.) In the present case the promotion of respondent no. 3 was made on 24.04.1994 i.e. before the cut-off date, judicially imposed by this Hon'ble Court. Since this court had not disturbed such promotions we are of the opinion that the promotion of the respondent no. 3 can not now be questioned after the matter has already been adjudicated upon by this Hon'ble Court. This is precisely the view taken in the impugned order Annexure P-8 and therefore we find no infirmity in the said order in so far as it relates to respondent no. 3.;