Uttam Singh (Petitioner) v. The State Of Punjab And Ors. (S).

Bal Raj Tuli, J.:— This order will dispose of C.W No. 1087 of 1970, Uttam Singh v. State of Punjab and C.W No. 2685 of 1670, Harbans Singh Bhatia v. State of Punjab, as common questions of law and fact are involved in both these cases.

2. Uttam Singh petitioner in C.W No. 1087 of 1970 was not promoted to the post of Head Assistant although he was senior to respondents 3 and 4, on the sole ground that he did not possess 5 years' experience as Assistant or Stenographer in the higher scale. It is admitted that Shri Uttam Singh is senior to both respondents 3 and 4.

3. Harbans Singh Bhatia, petitioner in C.W No. 2685 of 1970, is a Clerk, who joined the office of the Director of Agriculture, Punjab, on May, 25, 1964. Respondent 3 was working as Clerk in the office of Locust Control and Plant Protection Officer at Chandigarh before being appointed as a Clerk in the office of the Director of Agriculture, Punjab, Chandigarh on September 1, 1964. The vacancy of an Assistant occurred on January 28, 1969, to which respondent 3 was appointed in preference to the petitioner on the sole ground that the petitioner did not possess 5 years experience as a Clerk. The Rules of Service applicable to both the petitioners are contained in the Punjab Subordinate Agricultural Service Rules, 1933. The method of recruitment is provided in rule 7 Clause (j) of rule 7(1) prescribes that “in the case of Head Assistant, recruitment will be made by promotion from amongst Assistants and Stenographers with clerical experience who have proved their fitness for the appointment, or by selection from amongst Clerks employed in offices of Government other than the office of Director.” Clause (1) of rule 7(1) provides that the case of Assistant, the recruitment shall be made:—

(i) by promotion from amongst senior clerks in their respective offices, who have proved their fitness for appointment to the post, or

(ii) by selection from amongst Clerks employed in Government Offices other than the office in which the post is to be filled, or

(iii) by direct recruitment;

provided that no Graduate not already in Government service shall be appointed to be an Assistant unless he has been recommended as fit for appointment by the Punjab University Appointment Board.”

4. Sub-rule (3) of rule 7 provides that:—

“Appointment to any post by the promotion of officials already in service or by the transfer of officials shall be made strictly by selection and no official shall have any claim to such appointment as of right”.

5. It appears that the Punjab Government consulted the Punjab Public Service Commission for the prescription of standards of experience for the posts of Superintendent, Head Assistant, Assistant and Stenographer in the higher scale, and the Public Service Commission suggested that 5 years' experience as Assistant or Stenographer in the higher scale (with two years' experience as Assistant in the case of Stenographers) should be prescribed in the case of promotion to the post of Head Assistants, and 5 years' experience as Clerk should be prescribed in the case of promotion to the post of Assistant. In the letter dated July 30, 1966, contained these suggestions, it was pointed out that:—

“As the Government (in Agriculture Department) are the rule-making authority in this case, the Commission are of the view that it is they (the Govt.) who should promulgate these standards of experience when finalised”.

6. The Govt. did not make any amendment in the Rules so as to provide 5 years' experience for promotion to the posts of Assistants and Head Assistants as suggested by the Punjab Public Service Commission, but this suggestion was adopted in practice while making promotions. As I have said above, the two petitioners were not considered for promotion solely on this ground that they did not possess 5 years' experience. The question for determination is whether the prescription of 5 years experience is supplementary to rule 7(i)(j) and (1) or goes counter to the provisions of these clauses. In clauses (j) and (i), it has been provided that the Assistants or Clerks, who have proved their fitness for promotion, have to be promoted to the posts of Head Assistants and Assistant. No length of service is prescribed. Fitness for the higher post cannot be determined only on the basis of length of service. It has necessarily to be determined on the merits of the incumbent of the post who is to be promoted. It is not an uncommon phenomenon that an official with much less experience is far abler than an official with a longer experience and if selection has to be made on the right criterion, then the performance of the candidate must be considered rather than his length of service in a particular post.

7. The phrase “who have proved their fitness for the appointment” in the two clauses clearly shows that the fitness has to be determined on the basis of their output and performance in the post from which they have to be promoted, and the prescribing of length of service is completely irrelevant for the purposes of these clauses. In the view that I have taken it is abundantly clear that the petitioners have been ignored for consideration on a ground which was not open to the selecting authority and, therefore, the promotion of respondents 3 and 4 in C.W No. 1087 of 1970 and respondent 3 in C.W 2685 of 1970 was not in accordance with the Service Rules. These petitions are, therefore, accepted and respondent No. 2 is directed to consider the claims of the petitioner vis-a-vis respondents 3 and 4 in C.W No. 1087 of 1970, and of the petitioner vis-a-vis respondent 3 in C.W No. 2685 of 1970, on the basis of their performance in the post of Assistant and Clerk respectively. If on that basis respondents 3 and 4 in C.W 1087 of 1970 and respondent 3 in C.W 2685 are considered to have a better claim than the petitioner in each case then their orders of earlier promotion will stay, otherwise the Director of Agriculture will make the necessary changes. Since the Director of Agriculture took his decision on the basis of the criterion suggested by the Public Service Commision, it cannot be said that the action of the Director was arbitrary. I, therefore, leave the parties to bear their own costs in each petition.