Jaswant Singh Vs. Punjab Poultry Field Staff Association & Ors.
EmailAppeal: Civil Appeal No. 6041 of 1998
(From the Judgment and Order dated 22.4.98 of the Punjab and Haryana High Court in C.W.P.No. 1403 of 1997)
(From the Judgment and Order dated 22.4.98 of the Punjab and Haryana High Court in C.W.P.No. 1403 of 1997)
Petitioner: Jaswant Singh
Respondent: Punjab Poultry Field Staff Association & Ors.
Apeal: Civil Appeal No. 6041 of 1998
(From the Judgment and Order dated 22.4.98 of the Punjab and Haryana High Court in C.W.P.No. 1403 of 1997)
(From the Judgment and Order dated 22.4.98 of the Punjab and Haryana High Court in C.W.P.No. 1403 of 1997)
Judges: S. RAJENDRA BABU & RUMA PAL, JJ.
Date of Judgment: Nov 26, 2001
Appearances:
Mr. P.P. Rao, Senior Advocate, Mr. Anant V. Palli, Mr.Atul Sharma and Mrs. Rekha Palli, Advocates with him for the Appellant.
Mr. Balbir Singh Gupta and Mr. J.N. Gupta, Advocates for the Respondent Nos. 1 & 2.
Mr. Lokesh Kumar and Mr. Rajeev Sharma, Advocates for the Re-spondents Nos. 3 & 4.
Head Note:
SERVICE LAWS
Punjab Animal Husbandry (Non-Ministerial) Class III Service Rules, 1980 (As amended in 1983 and replaced by rules of 1992)
Promotion – Bird attendant/hatchery-man – Promotion to post of chick-sexer – Prior to 1992, qualifications requiring 12 months’ poultry training – Such training not undergone – After 1992, 50% post to be filled by promotion from poultry assistants, field assistants, store-keeper and poultry farm assistants – Person not holding any such post. Held that he cannot be promoted. However, employer directed to pay same scale for period of 3 years prior to filing of suit and till he continued. (Paras 10 to 12)
JUDGEMENT:
RUMA PAL, J.
1. This appeal has been preferred from the decision of the High Court setting aside the appointment of the appellant as a chick-sexer in the department of animal husbandry of the Government of Punjab.
2. The appellant’s case is that he was appointed as a bird at-tendant/hatchery man in the department on 24th November, 1981. In 1983, the appellant successfully underwent training as a chick-sexer with the central hatchery, Chengannur, Kerala. After completing his training, he discharged the duties of a chick-sexer and was appointed as chick-sexer at various places within the state. For example, one order dated 3.7.86 from the deputy director, animal husbandry poultry development to the assistant director states:
“Regarding the aforesaid subject, the duty of chick sexer for the work of hatchery is as under:
S. Name of sexer Place of appointment Place where the poultry farm/where
No. the two (sic) chick sexer will be
undertaken
1. Shri Joga Singh Malerkotla Malerkotla & Patiala
2. Shri Gobind Singh Gurdaspur Gurdaspur & Jalandhar
3. Shri Jaswant Singh Patiala Kot-Kapura
(the appellant herein)
It is clarified here that on the day of chick-sexing, no chick-sexer should be given any leave. In case chick-sexer has to take leave under compelling circumstances they should be appoint-ed.(sic).”
3. In 1980, instructions were issued by the government laying down qualifications for appointment to the post of chick-sexer. These qualifications were:
a) B.A./B.Sc. (Academic)
b) Five weeks chick-sexing training of any recognised govt. institution in India or abroad.
Preference:
Six months poultry training course at the govt. training insti-tute at Chandigarh.
c) Punjabi upto matric standard.
Or
a) Matric with three months poultry training course from govern-ment training institute/stock assistant course from College of Veterinary Medicine, Hissar/Punjab Agriculture University, Lud-hiana;
b) Chick-sexing training at any recognised government training institute in India or abroad.
c) Five years experience in any government poultry farm.
d) Two years experience in chick sexing.
e) Punjabi upto matric standard.”
4. According to the appellant, he fulfilled these norms and was entitled to be promoted to the post of chick-sexer.
5. The appellant filed a suit in 1989 against the state govern-ment authorities claiming to be paid the same scale of pay as chick sexers. The suit was dismissed in 1993. The appellant pre-ferred an appeal. The only relief asked for by the appellant before the appellate court was that the department might be directed to consider (i) whether the appellant had been working as a chick-sexer; (ii) and was entitled to pay and other bene-fits. The state authorities had no objection to such an order being passed. The order of the additional district judge accord-ingly was:
“… the department is ordered to consider the fact as to whether the plaintiff was working as chick sexer and if so his request for other benefits may also be considered according to law.”
6. In the meanwhile, one Gobind Singh (whose case was substan-tially similar to the appellant’s case) also filed a suit. The suit ultimately culminated in an order passed by the High Court in second appeal by which the High Court directed that since Gobind Singh had been discharging the duties of a chick-sexer, he was entitled to get the pay and allowances of that post. The state authorities did not challenge this decision and appointed Gobind Singh as a chick-sexer.
7. As far as the appellant was concerned, in purported compliance with the direction of the additional district judge and the decision of the high Court in Gobind Singh’s case, an order was passed on 22nd August, 1996 promoting the appellant as chick sexer with effect from 17.10.94. This order was challenged under Article 226 by the Punjab poultry field staff association (the respondent no. 1 herein) which claimed to represent the interest of one Kuldip Inder Singh, poultry assistant. The association claimed that the appellant was a class-iv staff members and was not qualified nor eligible to be promoted to the post of chick-sexer which was a class III post. The association’s case was based on a notification issued by the state government in 1992 laying down rules inter alia prescribing the method of recruit-ment and qualifications for the different posts under the Punjab Animal Husbandry (non-ministerial) Class III Service. The rules, which were called the Punjab animal husbandry (non-ministerial) class III service rules, 1992, provided that the post of chick-sexer would be filled 50% by direct recruitment and 50% by promo-tion. We are not concerned with the qualifications for direct recruitment. As far as promotion was concerned, the feeder cadres were poultry assistants, field assistants, poultry store-keepers and poultry farm assistants. According to the association, the appellant did not belong to any of the feeder cadres mentioned for the post of chick-sexer as mentioned in the 1992 rules.
8. Before the High Court, the appellant claimed that he was entitled to be considered according to the position prevailing prior to the 1992 rules. However, on the basis of an affidavit filed by the respondent authorities, the High Court came to the conclusion that there was no vacant post of chick-sexer prior to the notification of the 1992 rules and therefore, the 1992 rules applied to the appellant. The association’s writ applica-tion was allowed by the High Court holding that the appellant was not qualified to hold the post of chick-sexer according to the 1992 rules. The appellant’s promotion to the post of chick-sexer was accordingly quashed.
9. Before us the appellant has reiterated his arguments before the High Court. Additionally, it has been claimed that the re-spondent authorities had misled the High Court by stating that there were no vacancies in the post of chick-sexer prior to 1992. According to the appellant, three posts of chick-sexers were created by the state government for the year 1972-73 which had not been filled up till the appellant’s appointment with effect from 17th October, 1994.
10. Even assuming that the appellant is correct in this conten-tion, nevertheless the order of promotion dated 22nd August, 1996 cannot be upheld. The basis of the appellant’s claim for promo-tion is the order of the additional district judge. It is the case of the respondent authorities also that the order of promo-tion was passed pursuant to the additional district judge’s directive. As already noted, the directive to grant the appellant benefits etc. was conditional upon the respondent authorities determining whether the appellant had been working as a chick sexer. We may, therefore, assume that the respondent authorities passed the order of promotion only after being satisfied that the appellant had in fact worked as a chick-sexer. There is also ample uncontroverted evidence on record in support of this. However, such a conclusion would not necessarily result in the benefit of promotion being granted to the appellant unless promo-tion was permissible according to law. The promotional rules whether prior or subsequent to 1992, both of which have been quoted earlier, do not permit the promotion of the appellant. The 1980 rules were amended in 1983 so that the three month poultry training course required in order to qualify for the post of chick-sexer was changed to a twelve month poultry training course. Admittedly, the appellant had not undergone training for one year. As far as the 1992 rules are concerned, the respondent no.1 correctly submitted that the appellant could not have been promoted as a chick-sexer in terms thereof as he was not holding any of the feeder posts.
11. The High Court’s decision in Gobind Singh’s case did not direct the promotion of Gobind Singh. What was directed was the payment of salary and allowances of the post of chick-sexer since Gobind Singh had been discharging the duties of that post. There-fore, while the appellant’s promotion to the post of chick-sexer cannot be upheld, given the fact that the appellant had dis-charged the duties of a chick-sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties.
12. We accordingly allow the appeal in part. While upholding the order of the High Court, setting aside the order of the appel-lant’s promotion, we direct the respondent authorities to pay the appellant for the period he rendered service as a chick-sexer at the scales of pay together with all allowances to which chick-sexers were entitled at the relevant time. However, this relief is limited to the period commencing from three years prior to the filing of the suit by the appellant upto the time he continued to discharge duties as a chick-sexer. All duties in terms of this order must be paid to the appellant within a period of six months from the date of this judgment after adjustment of payments already made to the appellant by the respondent authorities. The appeal is disposed of accordingly without any order as a costs.
1. This appeal has been preferred from the decision of the High Court setting aside the appointment of the appellant as a chick-sexer in the department of animal husbandry of the Government of Punjab.
2. The appellant’s case is that he was appointed as a bird at-tendant/hatchery man in the department on 24th November, 1981. In 1983, the appellant successfully underwent training as a chick-sexer with the central hatchery, Chengannur, Kerala. After completing his training, he discharged the duties of a chick-sexer and was appointed as chick-sexer at various places within the state. For example, one order dated 3.7.86 from the deputy director, animal husbandry poultry development to the assistant director states:
“Regarding the aforesaid subject, the duty of chick sexer for the work of hatchery is as under:
S. Name of sexer Place of appointment Place where the poultry farm/where
No. the two (sic) chick sexer will be
undertaken
1. Shri Joga Singh Malerkotla Malerkotla & Patiala
2. Shri Gobind Singh Gurdaspur Gurdaspur & Jalandhar
3. Shri Jaswant Singh Patiala Kot-Kapura
(the appellant herein)
It is clarified here that on the day of chick-sexing, no chick-sexer should be given any leave. In case chick-sexer has to take leave under compelling circumstances they should be appoint-ed.(sic).”
3. In 1980, instructions were issued by the government laying down qualifications for appointment to the post of chick-sexer. These qualifications were:
a) B.A./B.Sc. (Academic)
b) Five weeks chick-sexing training of any recognised govt. institution in India or abroad.
Preference:
Six months poultry training course at the govt. training insti-tute at Chandigarh.
c) Punjabi upto matric standard.
Or
a) Matric with three months poultry training course from govern-ment training institute/stock assistant course from College of Veterinary Medicine, Hissar/Punjab Agriculture University, Lud-hiana;
b) Chick-sexing training at any recognised government training institute in India or abroad.
c) Five years experience in any government poultry farm.
d) Two years experience in chick sexing.
e) Punjabi upto matric standard.”
4. According to the appellant, he fulfilled these norms and was entitled to be promoted to the post of chick-sexer.
5. The appellant filed a suit in 1989 against the state govern-ment authorities claiming to be paid the same scale of pay as chick sexers. The suit was dismissed in 1993. The appellant pre-ferred an appeal. The only relief asked for by the appellant before the appellate court was that the department might be directed to consider (i) whether the appellant had been working as a chick-sexer; (ii) and was entitled to pay and other bene-fits. The state authorities had no objection to such an order being passed. The order of the additional district judge accord-ingly was:
“… the department is ordered to consider the fact as to whether the plaintiff was working as chick sexer and if so his request for other benefits may also be considered according to law.”
6. In the meanwhile, one Gobind Singh (whose case was substan-tially similar to the appellant’s case) also filed a suit. The suit ultimately culminated in an order passed by the High Court in second appeal by which the High Court directed that since Gobind Singh had been discharging the duties of a chick-sexer, he was entitled to get the pay and allowances of that post. The state authorities did not challenge this decision and appointed Gobind Singh as a chick-sexer.
7. As far as the appellant was concerned, in purported compliance with the direction of the additional district judge and the decision of the high Court in Gobind Singh’s case, an order was passed on 22nd August, 1996 promoting the appellant as chick sexer with effect from 17.10.94. This order was challenged under Article 226 by the Punjab poultry field staff association (the respondent no. 1 herein) which claimed to represent the interest of one Kuldip Inder Singh, poultry assistant. The association claimed that the appellant was a class-iv staff members and was not qualified nor eligible to be promoted to the post of chick-sexer which was a class III post. The association’s case was based on a notification issued by the state government in 1992 laying down rules inter alia prescribing the method of recruit-ment and qualifications for the different posts under the Punjab Animal Husbandry (non-ministerial) Class III Service. The rules, which were called the Punjab animal husbandry (non-ministerial) class III service rules, 1992, provided that the post of chick-sexer would be filled 50% by direct recruitment and 50% by promo-tion. We are not concerned with the qualifications for direct recruitment. As far as promotion was concerned, the feeder cadres were poultry assistants, field assistants, poultry store-keepers and poultry farm assistants. According to the association, the appellant did not belong to any of the feeder cadres mentioned for the post of chick-sexer as mentioned in the 1992 rules.
8. Before the High Court, the appellant claimed that he was entitled to be considered according to the position prevailing prior to the 1992 rules. However, on the basis of an affidavit filed by the respondent authorities, the High Court came to the conclusion that there was no vacant post of chick-sexer prior to the notification of the 1992 rules and therefore, the 1992 rules applied to the appellant. The association’s writ applica-tion was allowed by the High Court holding that the appellant was not qualified to hold the post of chick-sexer according to the 1992 rules. The appellant’s promotion to the post of chick-sexer was accordingly quashed.
9. Before us the appellant has reiterated his arguments before the High Court. Additionally, it has been claimed that the re-spondent authorities had misled the High Court by stating that there were no vacancies in the post of chick-sexer prior to 1992. According to the appellant, three posts of chick-sexers were created by the state government for the year 1972-73 which had not been filled up till the appellant’s appointment with effect from 17th October, 1994.
10. Even assuming that the appellant is correct in this conten-tion, nevertheless the order of promotion dated 22nd August, 1996 cannot be upheld. The basis of the appellant’s claim for promo-tion is the order of the additional district judge. It is the case of the respondent authorities also that the order of promo-tion was passed pursuant to the additional district judge’s directive. As already noted, the directive to grant the appellant benefits etc. was conditional upon the respondent authorities determining whether the appellant had been working as a chick sexer. We may, therefore, assume that the respondent authorities passed the order of promotion only after being satisfied that the appellant had in fact worked as a chick-sexer. There is also ample uncontroverted evidence on record in support of this. However, such a conclusion would not necessarily result in the benefit of promotion being granted to the appellant unless promo-tion was permissible according to law. The promotional rules whether prior or subsequent to 1992, both of which have been quoted earlier, do not permit the promotion of the appellant. The 1980 rules were amended in 1983 so that the three month poultry training course required in order to qualify for the post of chick-sexer was changed to a twelve month poultry training course. Admittedly, the appellant had not undergone training for one year. As far as the 1992 rules are concerned, the respondent no.1 correctly submitted that the appellant could not have been promoted as a chick-sexer in terms thereof as he was not holding any of the feeder posts.
11. The High Court’s decision in Gobind Singh’s case did not direct the promotion of Gobind Singh. What was directed was the payment of salary and allowances of the post of chick-sexer since Gobind Singh had been discharging the duties of that post. There-fore, while the appellant’s promotion to the post of chick-sexer cannot be upheld, given the fact that the appellant had dis-charged the duties of a chick-sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties.
12. We accordingly allow the appeal in part. While upholding the order of the High Court, setting aside the order of the appel-lant’s promotion, we direct the respondent authorities to pay the appellant for the period he rendered service as a chick-sexer at the scales of pay together with all allowances to which chick-sexers were entitled at the relevant time. However, this relief is limited to the period commencing from three years prior to the filing of the suit by the appellant upto the time he continued to discharge duties as a chick-sexer. All duties in terms of this order must be paid to the appellant within a period of six months from the date of this judgment after adjustment of payments already made to the appellant by the respondent authorities. The appeal is disposed of accordingly without any order as a costs.
