Per J.V. Gupta, J. - (1.) The petitioners are employed as Peons/Dak Runners in the Irrigation Department (Drainage), Haryana and are Class IV employees. The service of the petitioners is called the "Group D" Service. The petitioners were appointed on May 27, 1976, Nov. 30, 1977, Nov. 1, 1971, Sept. 13, 1972 and May 12, 1977, respectively. The petitioners are regular employees of the department, but only petitioner No.2 was recruited through the Employment Exchange. Petitioner No.1 is a Graduate whereas all the others are Matriculates. On March 30, 1973, the respondent-State issued instructions that those Class IV employees who are Matriculates and have two years' experience should be promoted as Clerks on ad hoc basis. Thereafter, on Dec. 10, 1981 further instructions were issued that Class IV employees should be promoted as Clerks on regular basis against 20 per cent vacancies. Later on, on Sept. 28, 1982, the Haryana Irrigation Department, Circles Clerical (Group-C) Service Rules, 1982, were notified. The abovesaid instructions were incorporated therein. Rule 9(g) which deals with recruitment to the post of Clerks has been reproduced in para 4 of the writ petition. It inter alia provides that the persons who have five years' experience as Group C employees whose scale of pay is less than that of a Clerk or as Group D employees or both and have passed matriculation examination or its equivalent, are entitled to be promoted as Clerks against their 20 per cent quota. According to the petitioners, they were fully eligible for being promoted to the posts of clerks in every manner. It has been further stated in para 6 of the petition that earlier petitioners Nos. 1, 8 and 5 filed Civil Writ Petition No. 5049 of 1983 seeking a direction to the respondent-State to promote them and other eligible persons to the post of Clerks under the 20 per cent quota reserved for them. In the written statement filed therein, a specific stand was taken in paras 4, 5 and 6 that "since there was no vacancy in the cadre of Clerks, the case of Group D employees could not be considered for promotion according to the quota prescribed in the rules". In view of the said averment in the written statement, this Court found no merit in the writ petition and dismissed the same in limine on March 1, 1984.
(2.) Again, in the year 1985, some vacancies of Clerks became available with the respondent-department, vide letter dated Jan. 25, 1985, copy Annexure 'P-3'. The said vacancies were sought to be filled up by promotion. In pursuance of the said letter, the respondent-department sought options from all employees regarding their willingness to be promoted as Clerks. All the petitioners and various other persons gave their options for promotion. Thereafter, Shri Gian Parkash Sharma, who was junior to the petitioners in the Group D Service (having been appointed on Feb. 21, 1979) was promoted as Clerk vide orders dated March 21, 1985, copy Annexure 'P-6'. Thereafter, vide letter dated March 23, 1985, copy Annexure 'P-7' respondent No.3 instructed all the Superintending Engineers to send the record and certificates of those Class IV employees who were eligible and who had been initially recruited through the Employment Exchange for being considered for promotion as Clerks. It is this letter Annexure 'P-7' which has been challenged by the petitioners in this petition primarily on the ground that no such condition could be imposed by executive instructions when there was no statutory rule in that behalf. According to the petitioners, the condition that only those persons of Group D Service were entitled to be promoted as Clerks who were appointed through the Employment Exchange was uncalled for and arbitrary. Moreover, certain persons who were not recruited through the Employment Exchange had already been promoted by the department and, therefore, the claim of the petitioners in not considering them for promotion has been denied to them arbitrarily and indiscriminately. According to the petitioners, since the persons junior to them have been promoted over and above them without considering their claim, they are entitled to be considered from that date when their juniors were promoted.
(3.) In the return filed on behalf of the respondent, the stand taken is that the petitioners Nos. 1, 3, 4 and 5 were not employed through Employment Exchange and, as such, their appointment was in violation of the provisions of the Employment Exchanges (Compulsorily Notification of Vacancies) Act, 1959 and, therefore, they were not regular employees. The Haryana Government had issued instructions dated Feb. 21, 1983, copy Annexure 'P-1' to take action against those officers who employed such persons without sponsoring their names by the Employment Exchanges. It was also denied that the petitioners are regular employees of the department. However, in the replication filed on behalf of the petitioners, it has been reiterated that all the petitioners are in fact regular employees and certificates to this effect for each of the petitioners are appended as Annexures 'P6/1' to 'P9/5'. In para 13 of the replication, the petitioners have also named persons who were promoted as Clerks from Group D Service and were not employed through the Employment Exchange.;