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PETITIONER: STATE OF HARYANA & ORS.

       Vs.

RESPONDENT: PREM SINGH & ORS.  C

DATE OF JUDGMENT:       05/04/2000

BENCH: S.S.Ahmad, S.R.Babu

JUDGMENT:

     RAJENDRA BABU, J.  :

     CIVIL APPEAL NO.  6361 OF 1994

     A  writ  petition was filed before the High  Court  of Punjab  &  Haryana  by the respondents.   Facts,  in  brief, giving  rise to this appeal are as follows.  Respondent  No. 1  was selected as Ziledar and after completion of  training was  appointed in the Irrigation Department in January 1975. Under  the  relevant  recruitment rules three  sources  were provided  for  appointment  to the post  of  Tehsildar  (‘B’ Class)  -  (i)  40%  by  direct  recruitment,  (ii)  40%  by promotion,  and  (iii)  20%  by transfer  from  amongst  the following categories :-

     i)   Superintendent  of  the   office  of  the  Deputy Commissioners;     ii)     Assistant    Superintendent    of Commissioners   and  Deputy   Commissioners  office;    iii) District   Kanungoes;    iv)  Zonal   Ziledars   of   P.W.D. (Irrigation  Branch]  OR v) Head Assistant of Director  Land Records Office.

     The Government on February 9, 1979 issued instructions wherein  it was stated that the quantum of reservation would be  to the extent of 20% for Scheduled Castes in the case of direct recruitment to Class I, II, III and IV posts.  It was clarified   that  in  all   appointments  by  promotion  20% reservation  will  be  granted in favour  of  the  Scheduled Castes  but  such reservation would be limited to Class  III and Class IV posts on the basis of seniority- cum-merit.  It was  expressly  stated  that in respect of  appointments  by promotion  there will be no reservation in Class I and Class II  posts.   It  was further clarified in  the  instructions issued  on  June  10,  1982 that if  posts  were  filled  by transfer  to an identical time scale of pay, there would  be no  reservation but if a higher post was filled by  transfer then  the benefit of reservation would be given.  Process of selection was announced to the post of Tehsildar (‘B’ Class) for appointment by transfer in the year 1986.  Eight persons were  appointed  in 1986, four in 1990 and six in 1992.   In the recruitment made as per the rules in 1986 the benefit of reservation  was not given to the post of Tehsildar which is a  Class  II post.  Respondent No.  1 filed a writ  petition

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claiming his right to appointment on the ground that he is a senior  Ziledar  and also on the basis of reservation.   The High  Court made an order on the basis that reservation  was available in the case of appointment by transfer to Class II post.   The  High Court did not consider the fact that  even assuming  that  reservation  had  to   be  granted  in  this category,  the claim of all the Scheduled Castes  candidates in  the five posts from which the recruitment was to be made by  transfer.  This order is in challenge before us in  this appeal.   The first respondent contended that he is entitled to the post in question not only on the basis of reservation in favour of a Scheduled Caste candidate but also that he is being  appointed  by way of transfer from a lower  scale  of Ziledar   in  the  Irrigation   Department  to  a  different department,  that  is,  Revenue Department to  the  post  of Tehsildar.   The instructions issued by the Government would not be applicable and on the other hand he would be entitled to such appointment.  A bar, if any, is implied and that the instructions are applicable to each and every Schedule Caste candidate  wherever  transfer is made to an equivalent  post and  for purpose of getting the benefit of the reserved post by way of transfer it must be from a post carrying lower pay scale  to  another post in any department carrying a  higher pay  scale.   On  that basis it is contended that  the  view taken  by  the  High Court is in order.  We  have  carefully examined the facts arising in the case.  The facts available on  record clearly disclose that Ziledar is a Class III post and  Tehsildar and Deputy Collector are Class II posts.  The posts  of Clerk, Assistant and Assistant Superintendent  are Class  III  posts, while the post of Superintendent,  Deputy Collector  and Tehsildar are Class II posts.  Respondent No. 1  had worked for about two years on the equivalent post  of Deputy  Collector to which post he had been promoted on  May 14,  1992 and, therefore, he cannot claim to be appointed as Tehsildar  by  transfer.   Posts  of  Deputy  Collector  and Tehsildar  are both Class II posts and are equivalent posts. Deputy  Collector is a post under the Irrigation Department, whereas  Tehsildar  is under the Revenue Department  in  the State.   It  is also made clear by the affidavit of  Bhagwan Dass  Bishnoi, Tehsildar, Narnaul (Haryana) that  respondent No.   1 was promoted to the post of Deputy Collector and was granted  regular  promotion thereto and the  Haryana  Public Service  Commission  has also approved such promotion by  an order  made  on  May 14, 1992.  The contention  advanced  on behalf  of the first respondent that he held a post inferior to  that  of a Tehsildar falls to ground and, therefore,  he cannot  claim  the benefit of promotion at all.  It is  also clear  from  the  Recruitment  Rules that the  case  of  the respondent  could  not  have been considered  on  any  other basis.   While  respondent No.  1 had been promoted  to  the post of Deputy Collector by an order made on April 21, 1992, the  writ  petition was filed on November 26, 1992.  In  the circumstances, he could not have made a claim to the post of Tehsildar at all.  Even on the basis found by the High Court that  the  reservation  policy was to apply  in  respect  of transfer  from  a  lower post to a higher post  inasmuch  as respondent No.  1 held a post of Deputy Collector equivalent to  that of Tehsildar which are both Class II posts he could not  have  claimed  benefit  of reservation  in  respect  of Scheduled  Castes.   In this view of the matter, we have  no hesitation in setting aside the order made by the High Court and  dismiss the writ petition filed by the respondent.  The appeal  stands allowed accordingly.  However, there shall be no orders as to costs.  CIVIL APPEAL NO.  6362 OF 1994

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     In  the light of the order made by us in CIVIL  APPEAL NO.   6361 of 1994, this appeal has become unnecessary  and, consequently it stands dismissed.