Supreme Court of India

HARBANS SINGHversusSTATE OF PUNJAB AND ORS.

Citation: 1995 INSC 438
Decided: 3 August 1995
Disposal: Appeal(s) allowed
Bench: K RAMASWAMYK S PARIPOORNAN

Holding

The Court held that, since the 1951 service rules in force at the time of the vacancy made no technical/non‑technical distinction, the appellant’s seniority entitled him to promotion effective May 20, 1977, and the government was justified in appointing him, with equity requiring a supernumerary post for the respondent.

Summary

Harbans Singh, who joined the Punjab Department of Legal and Legislative Affairs as a clerk in 1965 and was promoted to Assistant in 1974, claimed promotion to Legal Assistant on the basis of seniority when a vacancy arose in 1977. Ajit Lal Arora, the third respondent, was appointed to the same post on May 20, 1977, after the 1976 amendment to the Punjab Law and Legislative Department Provincial Service Class III Rules introduced a technical/non‑technical dichotomy, which placed Arora on the technical side. The government later recognized Singh’s eligibility and appointed him retrospectively effective May 20, 1977, directing that Arora be accommodated in any future vacancy. Arora challenged this order; his review was dismissed and the High Court upheld the promotion, which the Supreme Court affirmed. The Court held that because the original 1951 rules made no technical distinction, Singh’s seniority entitled him to promotion as of the vacancy date, and equity required the creation of a supernumerary post for Arora. The appeal was allowed, confirming Singh’s promotion and directing the government to create the supernumerary post.

Issues considered

Whether the 1976 amendment creating technical and non‑technical posts can be applied retrospectively to affect promotion eligibility of an employee appointed before the amendment.
Whether the appellant is entitled to promotion with effect from the date of the vacancy (May 20, 1977) despite the respondent’s earlier appointment.
Whether the direction to accommodate the respondent in any future vacancy is valid.
What equitable relief, if any, should be granted to the respondent in view of the promotion of the appellant.

Subjects

promotionseniorityservice rulestechnical vs non‑technical postsequitable reliefsupernumerary postadministrative law

Judgment

A                               HARBANS SINGH
                                         V.

                         STATE OF PUNJAB AND ORS.

                                 AUGUST 3, 1995

B             [K. RAMASWAMY AND K.S. PARIPOORNAN, JJ.)

          Seroice Law:

          Punjab Law and Legislative Depa1tment Provincial Seroice Class Ill
C Rules, 1951-Promotion--Dichotomy of Technical and non-technical
    posts-Effect on-Directions to State Govemment.

           The appellant joined as a clerk in the Department of Legal and
    Legislative Affairs, State of Punjab in June, 1965. He was promoted as an
    Assistant on August 13, 1974. The 3rd respondent was appointed as Clerk
D   in another Department. When a vacancy of Assistant arose and was
    notified, 3rd respondent had applied for the post and was appointed on
    August 22, 1974 and had joined on September 17, 1974. The Punjab Law
    and Legislative Department Provincial Service Class III Rules, 1951 was
    in vogue at the date of the respective appointments. On that day, there was
E   no distinction of a Technical and non-technical post. The Rules were
    amended in 1976, and dichotomy of technical and non- technical post was
    created and the 3rd respondent was working on technical side. When the
    vacancy of Legal Assistant arose, the appellant was eligible for considera-
    tion. He claimed his promotion by virtue of his seniority in the Depart-
    ment. 3rd respondent came to be appointed on May 20, 1977 as a Legal
F   Assistant.

           The appellant made a representation to the Government, and it
    found that the appellant was eligible for promotion but was wrongly
    overlooked. Therefore, the appellant was appointed as Legal Assistant
G   w.e.f. May 20, 1977. A direction was given that if any future vacancy arises,
    the 3rd respondent would be accommodated. A Review Petition filed by the
    3;:d respondent was dismissed, and he tiled a writ petition in the High
    Court which was allowed by a single Judge and on appeal it was confirmed
    by the Division Bench. Hence this appeal.

H         Allowing the appeal, this Court
                                       496
                         HARBANS SINGH v. STATE                     497

       HELD : 1. At the time when the Punjab Law and Legislative Depart- A
ment Provincial Service Class III Rules were in vogue, there was no
distinction between technical and non-technical Assistants. It could also
be seen that admittedly the appellant passed his LL.B (two years) course
in 1973 and 3rd year Course in 1974. By 1977, he had already had two years
experience on legal side. By fortuitous circumstance, the 3rd respondent
                                                                           B
was working on the technical side while the appellant was continuing on
non-technical side. For no fault on his part a dichotomy for consideration
of the respective claims of the appellant and the 3rd respondent was made
and the 3rd respondent came to be preferred when vacancy had arisen in
1977. Therefore, the Government was right in reconsidering the matter in
January, 1981 and in giving promotion to the appellant as a Legal Assis- c
tant and the consequential benefits. [498-B; G-H; 499-A]

      2. Since the appellant as well as the 3rd respondent have been further
promoted as Dy. Legal Remembrancers and both of them have been
continuing as such, justice and equity would need to mould the relief and
be worked out by giving appropriate direction to the Government. The D
Government is, therefore, directed to create a supernumerary post of Dy.
Legal Remembrancer and till the third respondent retires from service or
a super- numerary post of legal assistant must be created till date he was
promoted as Dy. Legal Remembrancer, as the case may be and that he
would continue in the post. As regards the appellant is concerned, since E
the Government itself had found him to be eligible and was appointed w.e.f.
May 20, 1977 i.e. the date on which the third respondent was promoted, it
must be deemed that the appellant was duly promoted w.e.f. that date and
he is entitled to all consequential benefits. [499-A-C]

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7412 of            F
1995.

     From the Judgment and Order dated 14.9.93 of the Punjab and
Haryana High Court in L.P.A.No. 447of1993.

        Ujjagar Singh, Ms Naresh Bakshi and Davender for the Appellants. G

        Sumant Batra and Ashok K. Mahajan for the Respondents.

        The following Order of the Court was delivered :

        Leave granted.                                                    H
    498                  SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A          We have heard the learned counsel on both sides. The appellant
    joined as a clerk in the Department of Legal and Legislative Affairs, State
    of Punjab in June, 1965. He was promoted as an Assistant on August 13,
    1974. Ajit Lal Arora, 3rd respondent who was appointed as Clerk in
    another Department. When a vacancy as an Assistant had arisen and was
    notified for recruitment, Ajit Lal Arora had applied for the post and was
B   appointed on August 22, 1974 and had joined on September 17, 1974. The
    Punjab Law and legislative Department Provincial Service Class III Rules, .
    1951 was in vogue at the date of the respective appointment. On that day1 ·
    there is no distinction of a Technical and non-technical post. The Rules
    were amended in 1976. Thereunder dichotomy of technical and non-tech-
c   nical post was created and Ajit Lal Arora was working on technical side.
    When the vacancy as a Legal Assistant had arisen, the appellant was
    eligible for consideration. He claimed for promotion by virtue of his
    seniority in the Department. Ajit Lal Arora came to be appointed on May
    20, 1977 as a Legal Assistant. The appellant made a representation to the
D   Government, who by its order dated June 6, 1981 found that the appellan~
    was eligible for promotion but was wrongly overlooked. Therefore, the
    appellant was appointed as Legal Assistant w.e.f. May 20, 1977. A direction
    was given that if any future vacancy arises, Ajit Lal Arora would therein
    be accommodated. A Review Petition filed by Ajit Lal Arora was dismissed
    on May 5, 1982. Dissatisfied therewith, Ajit Lal Arora filed a writ petition
E   in the High Court which was allowed by a singe judge and on appeal in
    L.P.A. 447/93, it was confirmed by the Division Bench. Thus, this appeal
    by special leave. .

          The crucial question is whether the appellant is entitled to be con-
F   sidered for promotion as on May 20, 1977, the date on which Ajit Lal Arora
    came to be appointed by promotion as Legal Assistant. It could be seen
    that at the time when the Rules were in vogue, there was no distinction
    between technical and non-technical Assistant. It could also be seen that
    admittedly the appellant passed his LL.B. (two years) course in November,
    1973 and 3rd year Course in 1974. By 1977, he had already had two years
G   experience as on legal side. By fortuitous circumstance, the 3rd respondent
    was working on the technical side while the appellant was continuing on
    non-technical side. For no fault of him a dichotomy for consideration of
    the respective claims of the appellant and the 3rd respondent was made
    and the 3rd respondent came to be preferred when vacancy had arisen in
H   1977. Therefore, the Government was right in reconsidering the matter in
                       HARBANS SINGH v. STATE                         499

January, 1981 and given promotion to the appellant as a Legal Assistant A
and the consequential benefits. We are informed that the appellant as well
as Ajit Lal Arora have been further promoted as Dy. Legal Remembran-
cers and both of them have been continuing as such. Under those cir-
cumstance, justice and equity would need to mould the relief and be
worked out by giving appropriate direction to the Government. The
                                                                           B
Government is, therefore, directed to create a supernumerary post of Dy.
Legal Remembrancer and till Mr. Ajit Lal Arora retires from service or a
supernumerary post of legal assistant must be created till date of AL.
Arora was promoted as Dy. Legal Remembrancer, as the case may be and
that he would continue in the post. As regards the appellant is concerned,
since the Government itself had found him to be eligible and was appointed C
w.e.f. May 20, 1977 i.e. the date on which Ajit Lal Arora was promoted, it
must be deemed that the appellant was duly promoted w.e.f. that date and
he is entitled to all consequential benefits.

       The appeal is allowed to the above extent. No costs.
                                                                            D
G.N.                                                      Appeal allowed.

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