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2008 Supreme(P&H) 1639
PUNJAB & HARYANA HIGH COURT
Permod Kohli, J.
Prem Singh
Versus
State Of Punjab
CWP No. 10925 of 1988,
Decided On : SEPTEMBER 23, 2008
The introduction of regulatory measures, such as a test for promotion, does not necessarily violate the rights of government servants and may be within the competence of the governing authority.
Headnote:
Promotion - Service Conditions - Punjab Education Department (Subordinate Offices) Clerical Service Rules, 1941 - 1984 Rules - Rule 4, Rule 7, Rule 10, Rule 11, Rule 12
Fact of the Case:
The petitioners, who were working as Clerks in the Punjab Education Department, challenged the introduction of a test for promotion to the post of Assistant under the 1984 Rules, claiming it to be arbitrary and violative of their rights.
Finding of the Court:
The court found that the introduction of the test for promotion was regulatory in nature and did not take away the right of the petitioners for promotion. It held that no government servant is allowed to claim promotion, and the only right is to be considered for promotion. The court also noted that the Rules were framed under Article 309 of the Constitution of India and the Governor of the State had the competence to introduce such transitory rules.
Issues: The issues involved the challenge to the introduction of a test for promotion under the 1984 Rules, the petitioners' claim of violation of Articles 14 and 16 of the Constitution of India, and their request for exemption from the examination/test.
Ratio Decidendi: The court's decision was based on the regulatory nature of the introduction of the test for promotion, the absence of prejudice to the petitioners, and the competence of the Governor of the State to frame transitory rules under Article 309 of the Constitution of India.
Final Decision: The court dismissed the petition, finding no merit in the challenge to the 1984 Rules and denying the petitioners' request for exemption from the examination/test.
Permod Kohli, J.
1. The petitioners were working as Clerks on being recruited/appointed in the Punjab Education Department. It is not in dispute that at the time of their appointment, their service conditions were governed by regulations of Punjab Education Department (Subordinate Offices) Clerical Service Rules, 1941 (hereinafter referred to as "the Rules"). At the time of the filing of the writ petition, they have completed 15 or 20 years of service. The next promotion from the post of Clerk is to the post of Senior Clerk/Assistant. Rule 6 of the Rules aforesaid deals with the method of appointment to various cadres of service. In the Rule aforesaid, following three modes are prescribed for appointment to the post of Senior Clerk/ Assistant:
"6(1) Posts in the service shall be filled Method of appointment. (a) XX XX XX (b) in the case of senior clerk in the grade of Rs. 80-5-110/5-150; i) by promotion from the post of Junior Clerk; ii) by transfer of an official already in Government service; or iii) by direct appointment."
2. The petitioners are seeking appointment by promotion from the post of Junior Clerk/Clerk. It is not stated in the petition as to when the petitioners became due for promotions, in the year 1984, the State notified. Punjab State Assistants Grade Examination Rules, 1984 (hereinafter referred to as the "1984 Rules"), vide notification dated 11 04.1984. Some of the relevant 1984 Rules are noticed hereunder:
"2. Definitions :-
In theserules, "unless the context otherwise requires : a) xx xx b) xx xx c) "Government" means the Government of the State of Punjab in the Deptt. of Personnel and Administrative Reforms. d) xx xx e) "Post of Assistant" means a civil poster a post in civii service under the State of Punjab designated as Assistant and includes all such posts, higher in rank to that of the post of Clerk,, as are in the same or in a identical pay scale and carry responsibilities similar to or identical with those of the post of Assistant, by whatever designation they be called; f) XX XX g) "Provisional appointment" means an appointment by promotion of a person to the post of Assistant before qualifying the test prescribed in the relevant service rules of in these rules, as the case may be, with or without a condition of qualifying the test imposed in the order of appointment; and h) "test" means a written qualifying examination conducted by the Board, under these rules. i) xx xx xx xx
4. Eligibility for promotion to the post of Assistant: (1) No person shall be eligible for appointment by promotion to the post of Assistant unless in audition to fulfilling the qualifications and experience prescribed for appointment by promotion to the post of Assistant, he qualifies the Test: Provided that a person who has already qualified the Assistant Grade Examination inter alia in terms of Punjab Government circular No. 4868 (II- 57)/21176, dated the 23th October, 1957, or who was holding on regular basis the post of Assistant on the 23 October, 1957, shall not be required to qualify the test: Provided further that if a person holding the post of Assistant or a higher post, on provisional basis, on the commencement of these rules is of the age of fifty years or more; she shall also not be required to qualify the test: Provided further that a person who has been appointed by promotion to the post of Assistant or to any higher post on provisional basis before the commencement of these rules, shall be required to qualify the test within a period of three years from such commencement and failure to qualify the test within the specified period shall result in reversion of such person to the post of clerk or to the post, by whatever designation called, from which he was appointed by promotion to the post of Assistant on provisional basis. (2) Notwithstanding anything contained in sub-rule (1) where no person, who has qualified the test, is available for promotion, to the post of Assistant in a service, the appoin
