LPA No. 1108 of 2009 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

LPA No. 1108 of 2009 (O&M)

Date of decision:- 29.02.2012

Dr. Bakhshish Singh.

...... Appellant

Vs

Dr. Ravi Dutt Mehral and others.

......Respondents

CORAM:-HON'BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE

HON'BLE MR. JUSTICE

MAHESH GROVER

Present:

Mr. Gurminder Singh, Advocate,

and Mr. Narinder Pal Sharma, Advocate,

for the appellant.

Mr. Shashi Kumar Rattan, Advocate,

for respondent No. 1.

Mr. Jaskirat Singh Sidhu, Sr. Addl. Advocate General,

Punjab.

* * * *

RANJAN GOGOI, C.J. (ORAL)

This appeal is directed against the order dated 08.09.2009

passed by a learned Single Judge of this Court in CWP No. 17853 of

2008 by which the writ petition was allowed and the promotion of the

respondent No. 5 therein i.e. the present appellant to the post of District

Ayurvedic-cum-Unani Officer was interfered with on the ground that

the said promotion was not made in conformity with the provisions of

the Rules which prescribe the criteria of seniority-cum-merit for filling

up the post on promotion.

LPA No. 1108 of 2009 (O&M)

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The facts lie within a very short compass and the legal issue

that arises on the said facts can be best summed up by recording that

the same pertains to a true and correct meaning of the expression

'seniority-cum-merit' as appearing in the Service Rules in question.

Both the appellant/respondent No. 5 and the

respondent/writ petitioner were holding the posts of Ayurvedic Medical

Officer. Both of them belonged to the reserved category and had come

within the zone of consideration for the purpose of promotion to the

higher post of District Ayurvedic-cum-Unani Officer which had to be

made in conformity with the Rules. The appellant/respondent No. 5,

though junior to the respondent/writ petitioner, was selected and

promoted to the said higher post which gave rise to the grievance

espoused in the writ petition.

The learned Single Judge took the view that the aforesaid

promotion was not made in accordance with the principle of seniority-

cum-merit which is the criteria applicable to the promotion and hence

the present was a fit case for invalidation of the promotion made in

favour of the appellant/respondent No. 5.

Before proceeding any further, it will be necessary to take

note of the provisions of the relevant Rules which would be required to

be considered for the purpose of adjudication of the issues involved in

the present proceeding.

The service of the contesting parties are governed by the

provisions of the Punjab Ayurvedic (Group 'A') Service Rules, 2008.

LPA No. 1108 of 2009 (O&M)

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Rule 5 of the said Rules being relevant may be conveniently

reproduced at this stage:-

“5. Method of appointment, qualifications

and experience

(1)

Appointment to the service shall be

made in the manner specified in Appendix 'B'.

Provided that, if no suitable candidate is

available for appointment by promotion and

by direct appointment, then appointment to the

service shall be made by transfer of a person

holding a similar or an identical post under a

State Government or Government of India.

(2) No person shall be appointed to a post in

the service unless he possesses the

qualification and experience as specified

against the post in Appendix 'B'.

(3) Appointment to the service by promotion

shall be made on the basis of seniority-cum-

merit, but no person shall have any right to

claim promotion on the basis of seniority

alone.”

Specific notice must be had to the provision of Rule 5(3)

extracted above which envisages that promotions shall be made on the

basis of seniority-cum-merit, though no person shall have any right to

claim promotion by virtue of his seniority alone. The Punjab Civil

Services (General and Common Conditions of Service) Rules, 1994

(hereinafter referred to as t