Sohan Lal v. State of Haryana & Ors.

Mr. D. S. Nalwa, Addl.A.G., Haryana & Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. Mr. R. K. Malik, Sr.Advocate with Mr. Vikas Malik, Advocate, for respondent Nos.4 and 5. **** RANJIT SINGH, J. This order will dispose of Civil Writ Petition Nos.18996 of 2009 (Sohan Lal Vs. State of Haryana and others) and 20503 of 2009 (Bal Kishan Vs. State of Haryana and others). The facts are being taken from Civil Writ Petition No.18996 of 2009. The petitioner having been appointed as Stenotypist on CIVIL WRIT PETITION NO.18996 OF 2009 :{ 2 }:

6.8.1990 was promoted as Junior Scale Stenographer on

17.12.1992. On 27.5.1999, the petitioner was promoted as Assistant. In the year 2009, the petitioner made a representation for his further promotion in terms of the reservation policy. After considering his representation, the petitioner was promoted as Assistant Secretary on 21.8.2009. He, however, was reverted from his promoted post on 3.12.2009. The petitioner accordingly makes a grievance that he was reverted without assigning any reason and without issuing any show cause notice and, thus, would plead violation of principles of natural justice to impugn the order of his reversion. The petitioner would also rely upon the instructions issued by the Chief Secretary to Government of Haryana, clarifying the aspect that the persons promoted against reserved category, though in excess of quota, need not be reverted but the excess post given to them will be adjusted against the reserved post/vacancy falling to the reserved category in future. These instructions dated 31.5.1987 are placed on record as Annexure P-5. The grievance of the petitioner is that he was rightly promoted but was illegally and wrongly reverted and, thus, the writ petition. The petitioner in Civil Writ Petition No.20503 of 2009 was also promoted on 21.8.2009 like the petitioner in Civil Writ Petition No.18996 of 2009 but was reverted on 3.12.2009, which has been impugned in this writ petition like the connected writ petition. In response to notice of motion, the State as well as private respondents have filed separate replies. In preliminary objections raised, it is pointed out by the State that the petitioner has not disclosed the true facts. As per the reply, the promotion order of CIVIL WRIT PETITION NO.18996 OF 2009 :{ 3 }: the petitioners have been withdrawn because their promotion was challenged by Smt.Neelam Kanta and others through Civil Writ Petition No.14596 of 2009. This writ petition was filed with a grievance that the total sanctioned posts of Assistant Secretary were 20 and as per the reservation policy, 4 posts of Assistant Secretary could be filled up for reserved category of scheduled caste. It was further mentioned that 4 persons, namely, Gian Singh, Hawa Singh Bhoria, Darshan Rani and Krishna Gahlawat, Senior to the petitioner Sohan Lal, in scheduled caste category, had already been promoted and were occupying the posts of Assistant Secretary. Accordingly, the promotion of the petitioner and two other persons, namely, Roop Chand and Bal Kishan were beyond their quota. When the promotion granted to the petitioners was challenged through the writ petition filed by respondent Nos.4 and 5, the State had decided to withdraw these promotions as it could not justify these promotions in any manner. When the promotion granted to the petitioners was withdrawn, Civil Writ Petition No.14596 of 2009 filed by Neelam Kanta was rendered infructuous and was disposed of as such on

11.12.2009. The petitioners have been impleaded as a party in the said writ petition and were given proper opportunity of being heard. Even another writ petition by a person who was senior to the petitioners, was also dismissed. Accordingly, it is pleaded that there is no cause made out for the petitioners to file these writ petitions. As per the reply, Roop Chand, Assistant Secretary, had filed another Civil Writ Petition No.6354 of 2009, which was dismissed by this Court on 5.11.2009. The promotion of said petitioner, Roop Chand, was made subject to the condition that he CIVIL WRIT PETITION NO.18996 OF 2009 :{ 4 }: would be liable to be reverted if his senior, who was then facing departmental enquiry, was exonerated. The said senior was exonerated and accordingly was promoted by reverting petitioner, Roop Chand. The grievance that subsequently his juniors have been promoted to fill up the roster point No.24 onwards, was left open to be challenged by the petitioners. It now transpires that all the four posts in the quota meant for the category of the petitioners have already been filled. Accordingly, it is submitted that the petitioners can not claim promotion on the basis that any of their junior has been promoted. The grievance made by the petitioner that his reversion was ordered without affording him any opportunity of hearing has been denied by the State in the reply filed. It has specifically been averred that while passing the order dated 3.12.2009, the petitioner was personally heard by the Transport Commissioner (Respondent No.3) in the presence of Additional Transport Commissioner and Assistant District Attorney. Though in the replication, the petitioner has referred these averments to be a bundle of lie and totally wrong and has further averred that no proof in this regard has been attached, yet, in my view, there would not be any need to pursue this line of submission as made in view of the peculiar factual position in this case. It may require notice that reversion of the petitioner has basically been done on account of the writ petition filed by some of the employees, challenging the promotion of the petitioner and the order of promotions were withdrawn as these could not be justified. If the petitioner wanted to urge anything against this an order, he was at liberty to raise all such pleas in the said writ petition, where he was CIVIL WRIT PETITION NO.18996 OF 2009 :{ 5 }: a party. In this background, the assertion that the impugned order has been passed in violation of principles of natural justice would not carry much weight and conviction. The petitioners have otherwise not made any mention to this factual position, which appears to be with an aim to mislead the Court. The counsel for the petitioners could not dispute this factual position that out of the 20 posts in the cadre of Assistant Secretary, 4 would come to the share of scheduled caste category as per the reservation policy. The counsel could also not dispute the fact that all the 4 posts are presently filled by the persons who are senior to the petitioners. Though the counsel for the petitioners would contend that more than 20 persons have been promoted as Assistant Secretary by making reference to Annexure P-8 but the State counsel has disputed this fact by pointing out that two out of these persons are promoted as Deputy Superintendents, which may be the same cadre as that of Assistant Secretary. The posts of Assistant Secretaries, however, were 20 in number as per the State. The counsel for the petitioners, on the contrary, has maintained that the cadres of Deputy Superintendent and Assistant Secretary are different and 25-26 persons of the general category were promoted, ignoring the reserved category candidates in violation of the reservation policy. The counsel, however, could not substantiate his submission from any documents on record. As per the State, the cadres of Deputy Superintendent and Assistant Secretary are common. Even as per the showing of the petitioners, there are in total 22 sanctioned posts i.e. 2 posts of Deputy Superintendent and 20 posts of Assistant Secretaries in the cadre. It CIVIL WRIT PETITION NO.18996 OF 2009 :{ 6 }: has been also stated that no person, who is junior to the petitioners has been promoted as Deputy Superintendent also. Though the petitioners have made reference to the promotion of general category candidates to urge that the claim of reserve category was ignored, but the factual position as noted above could not be disputed in any manner. Reference has also rightly been made in the reply to the instructions issued by the State of Haryana on 24.9.2008/22.10.2008 (Annexure R-4/7) on the basis of law laid down by the Hon'ble Supreme Court in R.K.Sabharwal and others Vs. State of Punjab and others, (1995) 2 Supreme Court Cases 745, where it has been held that when all rosters points in the cadre are filled and required percentage of reservation is achieved, then further reservation would be granted when existing employee who had already got the benefit vacate the post. Once, the respondent State is able to establish that 4 posts meant for scheduled caste candidates are filled by persons who are in position, the further reservation and promotion of the petitioners was in violation of the policy and the law laid down by the Hon'ble Supreme Court. There is, thus, no merit in the plea raised by the petitioners. Both the writ petitions are, therefore, dismissed. June 28, 2010 khurmi ( RANJIT SINGH ) JUDGE