I.S. Tiwana, J. - (1.) Learned counsel for the parties are agreed that in these three petitions Nos. 4158, 4705 and 5385 of 1983, identical points of law and fact arise for consideration. The petitioners who admittedly belonged to the cadre of the ministerial staff as envisaged by the Punjab Excise and Taxation Service (Class III-A) Rules, 1956, and were later appointed as Excise and Taxation Inspectors on different dates by way of transfer under Rule 7 of the Punjab Excise Subordinate Service Rules, 1943, claim that they still retain their lien on the posts which they held in the ministerial cadre and were entitled to be considered for promotion as Excise and Taxation Officers when the private respondents who as per their stand were junior to them in the ministerial cadre were promoted to the latter mentioned posts. In other words, their plea is that they were entitled to be considered and promoted to the pests of Excise and Taxation Officers on the basis of their lien on the pests forming part of the ministerial cadre. On behalf of the State it is pleaded that though the lien of the petitioners in the ministerial cadre was suspended vide different orders in terms of Rule 3.14(b) of the Punjab Civil Service Rules, yet "if the petitioners want that they should be considered for the posts of Excise and Taxation Officers on the basis of their lien in the ministerial cadre they may seek reversion where after their case would be considered on merits and under the rules". With effect from which date their claim for the promotional posts of Excise and Taxation officers would be considered has not been made clear anywhere in the written statement of the Government. According to the learned counsel for the petitioners if the State Government is willing to consider the claim of the petitioners to the promotional posts with effect from the dates any of their juniors were promoted to those posts, they would feel satisfied. In case the State wants to consider their claim only with effect from the date they come back to the posts on which they hold their lien, then the plea of the State is untenable. In order to ascertain the stand of the State Government, I direct the petitioners to make a comprehensive representation to the Government within a period of two weeks from today which would be disposed of by the Government by passing a speaking order within a period of three months thereafter. It is needless for me to point out that the concerned Secretary to Government would also hear the parties or persons who are likely to be affected by their decision of the Government either way. Copy of the final order passed by the Government should be placed on the records of these cases by Sept. 2, 1985. The cases to come up for hearing on Sept. 9, 1985. - This has to be read in continuation of my order dated May 3, 1985.
(2.) The Financial Commissioner Taxation has passed an order on Aug. 9, 1985 (which is appended as Annexure P.7 to the amended petition impugning the same) whereby he has held that the petitioners would be entitled to be considered to the posts of Excise and Taxation Officers from the ministerial quota with effect from the date any of their junior has been promoted. He. however, has made some observations in this order to the effect that in view of the proposed amendments to the Punjab Excise and Taxation Department (Class-II) Service Rules, 1956 tie petitioners would not be eligible for such a consideration. As has already been indicated, the petitioners through their amended petition impugn this order to the extent the proposed draft rules are sought to be made applicable at this stage as according to them these have not been promulgated as 'rules' so far and have no force of law for purposes of their enforceability. It is mentioned in this impugned order, Annexure P.7, that "it has been decided by the State Government to adopt and apply the aforesaid draft provisions of the Rules in the matter of filling up of the vacancies in the cadre of Excise and Taxation Officer". It is also being so urged by the learned counsel for the respondents. To verify the fact as to whether at any stage the Government had taken any conscious decision to enforce these draft rules as Government instructions governing the promotions in question, I have seen the official record. From the records it is available that though the dealing Assistant, Mr. Sood, vide his note dated May 18, 1982, dealing with the matter had submitted a proposal the qua the draft amendments to the Rules and also "to call for promotion proposal from the E.T.C. (Excise and Taxation Commissioner) for filing up vacant posts of E.T.Os.' (Excise and Taxation Officers) on the basis of draft amendments" yet when this proposal of the dealing Assistant was considered by the higher authorities and more particularly by the Joint Secretary, he confined his consideration to the proposed amendments of the Rules and their implication and ultimately submitted the file with the following observation : "F.T.C /F.M. may kindly approve the proposed amendments as discussed above and tabulated at flag 'B'." Subsequently the Financial Commissioner Taxation-cum-Secretary to the Government, after suggesting some more changes in the draft rules with regard to the experience of the officers to be promoted, submitted the matter to the Finance Minister. The Minister finally approved the note of the F C.T. in the following manner : "Approved. However, experience for promotion should be five years otherwise it may lead to a feeling of stagnation."
(3.) It is thus apparent from a reading of these records that the competent authority, i.e., the State Government at no stage took a conscious decision that till the draft rules acquire the status of rules, the same has to be followed - this was in spite of the proposal made by the dealing Assistant as Government Instructions for purposes of filing the vacancies in question. Later realising that no decision had been taken by the State Government as to whether the posts in question had to be filled in the light of the draft rules, a proposal was again put up by Mr. Sood, the dealing Assistant, that the Government may take a decision that till the promulgation of the rules, the promotions in question should be made in accordance with the said rules and the proposals be finalised in the light of those rules. This proposal was of course approved by me Financial Commissioner Taxation-cum-Secretary to the State Government but the learned counsel for the respondents is not in a position to refer to any of the rules of business or any other provision of law which entitles the Financial Commissioner Taxation-cum-Secretary to the Government to lay down by way of instructions the service conditions or the criteria for filling up the posts in question In the light of this the acceptance of the proposal of Mr. Sood by the Financial Commissioner Taxation-cum-Secretary to the Govt, on Aug. 11, 1982, makes no difference so far as the merits of the controversy in question are concerned. It is the conceded position that it was only in compliance with this order of the Financial Commissioner Taxation that the whole process of selection and the ultimate appointments of the private respondents to the posts in question were finalised. Mr. Gupta, the learned Senior Advocate for the private respondents however, contends that when the pro-proposal for promoting these respondents in the light of the draft rules was finalised, the same was submitted to the Finance Minister for approval, and he having approved the same on June 29. 1983, it should be taken that the Minister had impliedly decided to go by these draft rules for filling up the posts of Excise and Taxation Officers. I see no merits in this stand of the learned counsel. Firstly, it is not the case of the State authorities and Secondly, the mere use of the word "approved" under the proposal concerning the appointments of the respondents as Excise and Taxation Officers does not ipso facto means that the Minister had choosen to follow the proposed rules as Government instructions. As already pointed out above, at no stage the Government seems to have taken a conscious decision that till the finalisation or promulgation of the proposed rules, the same had to be treated as Government Instructions.;