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PETITIONER: HARBANS SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT03/08/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J)

CITATION:  1995 SCC  Supl.  (3) 471 1995 SCALE  (4)820

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have  heard the  learned counsel on nboth 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 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  is  no  distinction  of  a  Technical  and  Non- technical post.  The Rules  were amended in 1976. Thereunder dichotomy of  technical and  non-technical 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 Government, who by its order dated June 6, 1981 found that the appellant 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 in  the High  Court which  was allowed by a single 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 considered for promotion as on May 20, 1977, the date  on which  Ajit Lal  Arora came  to be appointed by

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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  Assistants.  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 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 1977. Therefore,  the Government  was right in reconsidering the matter  in January,  1981 and  given  promotion  to  the appellant  as   a  Legal  Assistant  and  the  consequential benefits. We are informed that the appellant as well as Ajit Lal  Arora   have  been   further  promoted   as  Dy.  Legal Remembrancers and both of them have been continuing as such. Under those  circumstance, justice  and equity would need to mould the  relief and  be worked  out by  giving appropriate direction to  the Government.  The 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  A.L. 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 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.