Punjab-Haryana High Court
Joginder Pal vs Municipal Corporation on 11 August, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Civil Writ Petition No. 13664 of 1992 1
In the High Court of Punjab and Haryana, at Chandigarh.
Civil Writ Petition No. 13664 of 1992
Date of Decision: 11.8.2010
Joginder Pal
...Petitioner
Versus
Municipal Corporation, Amritsar and Another
...Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. B.R. Mahajan, Advocate
for the petitioner.
Mr. Ashok Khunger, Advocate
for the respondents.
Mr. J.S. Puri, Additional Advocate
General, Punjab.
Kanwaljit Singh Ahluwalia, J. (Oral)
The present writ petition has been filed by Joginder Pal, who retired on 30.4.1995 from Municipal Corporation, Amritsar, as Draftsman, in his own scale and pay of Tracer. A prayer has been made in the writ petition that the condition, as specified in the order dated 25.2.1992 (Annexure P7), that on promotion from the post of Tracer to that of Draftsman, the petitioner is entitled to the salary in his own pay scale, be quashed and he be allowed the pay and allowances of the promoted post from the date his juniors were promoted as Draftsmen in view of the judgment rendered by the Hon'ble Apex Court in Smt. P Civil Writ Petition No. 13664 of 1992 2 Grover v. State of Haryana and Others AIR 1983 Supreme Court 1060.
To examine the prayer made in the writ petition, it will be necessary to recapitulate the brief facts of the case.
The petitioner joined the service of Municipal Committee, Amritsar, as Tracer on 11.11.1970. Thereafter, the Municipal Committee, Amritsar, was upgraded as Municipal Corporation. It is pleaded that the next promotion from the post of Tracer in the Municipal Corporation, Amritsar, is to that of Draftsman. The petitioner was at serial No.2 in the seniority list of the Tracers. One Charanjit Lal Bhatia, who was at serial No.1 in the seniority list, was promoted as Draftsman by the Commissioner, Municipal Corporation, on 18.11.2007. Vide order dated 10.3.1981 (Annexure P2), the Secretary, Municipal Corporation, Amritsar, ordered that the petitioner, who was working as a Tracer, was allowed to work as Draftsman in his own pay and scale, purely as a temporary measure till the permanent substitute was provided. Subsequently, vide order dated 7.2.1985 (Annexure P3), the Municipal Corporation, Amritsar, promoted Narinder Kumar, Tracer, as a Draftsman in the pay scale of Rs.700-1200 but the petitioner was allowed to work as Draftsman temporarily in his own pay scale of Tracer. Vide resolution dated 22.5.1987 (Annexure P4), one Surinder Singh Sahota, Tracer, who was at serial No.5 in the seniority list, was promoted as Draftsman in the pay scale thereof.
The petitioner, aggrieved against the promotion of his juniors in the pay scale of Draftsman, approached this Court by filing Civil Writ Petition No. 7334 of 1987, stating that he could not be discriminated. Civil Writ Petition No. 13664 of 1992 3 The stand of the Municipal Corporation, in the said writ petition, was that the petitioner's juniors were promoted in the pay scale of Draftsman as they had obtained necessary qualification by passing the diploma, whereas the petitioner lacked this essential qualification. The act of the respondents to promote the petitioner as Draftsman, in the pay scale of Tracer, was challenged. Learned Single Judge of this Court, had allowed the said writ petition, vide order dated 8.8.1990, and observed as under:-
"...It is not in dispute that the petitioner as per seniority list is at No.2. One Charanjit Lal Bhatia who was also a Tracer was promoted as Draftsman on the basis of his five years experience as Tracer as per rules/instructions prevalent in the Corporation. Similarly, the petitioner who has also got 5 years experience as Tracer and was admittedly at No.2 in the seniority list, I see no reason why petitioner's case for promotion was kept pending whereas he was duly eligible for promotion. It is well settled principle of law that Draft Rules cannot over ride existing service rules until made final by the competent authority and published. Respondent-Department has not been able to show that the draft rules have been finalized. Even otherwise also, per section 398(1) of the Municipal Corporation Act, 1976, all regulations made by the Corporation under the Act are to be made by the Civil Writ Petition No. 13664 of 1992 4 Government within one year of the establishment of the Corporation; and any regulation so made is to be altered or rescinded by the Corporation in the exercise of its powers under the Act. Sub Rule (2) provides that no regulation made by the Corporation under this Act shall have effect until it is approved by the Government and published in the official gazette. In the case in hand draft service regulations having not been approved, as such cannot be acted upon. Consequently, old rules regarding conditions of service shall apply.
In view of the foregoing reasons, this writ petition is allowed and the respondent is directed to consider the case of the petitioner for promotion per eligibility under the old rules. The case of the petitioner for promotion is to be considered within two months from the receipt of the order".
Vide letter dated 10.1.1991 (Annexure P6), the Assistant Commissioner, Municipal Corporation, Amritsar, sent a communication to the petitioner that Surinder Singh Sahota, Chathar Singh and Kashmir Singh, who were juniors to Charanjit Lal Bhatia, were promoted as Draftsman, because they possessed Diploma in Draftsmanship, whereas the immediate senior of the petitioner i.e. Charanjit Lal Bhatia was not holding a Diploma in Draftsmanship, therefore, on a promoted post, he was paid salary in his own pay scale. It was stated that for a Tracer to become a Draftsman, two years Diploma/Certificate in Civil Writ Petition No. 13664 of 1992 5 Draftsmanship was necessary to fulfill the eligibility criteria. Vide order dated 25.2.1992 (Annexure P7), in pursuance of the directions issued by this Court, the case of the petitioner was considered by the Municipal Corporation, Amritsar. He was temporarily promoted to the post of Draftsman in his own pay scale. It was stated in the order that Charanjit Lal Bhatia was promoted temporarily. He was never given the salary for the post of Draftsman till he retired from his service. Therefore, on that precedent, the petitioner was also promoted from the post of Tracer to that of Draftsman, without being paid pay scale of the Draftsman.
I have heard learned counsel for the parties.
The facts, which emerge from the pleadings in the writ petition are that Charanjit Lal Bhatia was at serial No.1 in the seniority list of the Tracers, whereas the petitioner was at serial No.2. Both were not qualified as they did not obtain Diploma of Draftsmanship, whereas juniors to the petitioner, namely Chathar Singh, who was at serial No.3, Narinder Kumar, who was at serial No.5 and Surinder Singh Sahota, who was at serial No. 7, were promoted to the post of Draftsman as they were possessing Diploma in Draftsmanship. The petitioner challenged this act of the Municipal Corporation, Amritsar, in this Court. The writ petition was allowed and it is apparent from the portion, reproduced above, that the draft rules, which were not given approval by the State Government, were held inapplicable. Once the draft rules were held inapplicable, case of the petitioner was to be considered on the basis of old rules, which only prescribe five years' experience as a Tracer.
The judgment (Annexure P5), rendered by learned Single Judge of this Court, was not assailed by the Municipal Corporation, Civil Writ Petition No. 13664 of 1992 6 Amritsar, in the higher Court, which had attained finality. The case of the petitioner is to be considered in the light of the observations made in the judgment (Annexure P5). The Municipal Corporation, Amritsar, while passing the impugned order, denied the fruits of the litigation, in which the petitioner was successful. The fact that senior to the petitioner namely Charanjit Lal Bhatia was not given the pay scale of Draftsman will be of no consequence as the Municipal Corporation was required to consider the case of the petitioner without applying the draft rules as per mandate of the judgment (Annexure P5).
Therefore, the present writ petition is accepted and order dated 25.2.1992 (Annexure P7) is modified to the extent that the petitioner will be entitled to the pay scale of Draftsman, however, the arrears of pay shall be restricted to three years and two months, from the date of filing of the present writ petition. The terminal benefits of the petitioner shall be redetermined, accordingly.
Mr. Ashok Khunger, Advocate, appearing for the respondents, submits that the directions of this Court shall be complied with, within a period of three months, without prejudice to the lawful remedy which the Municipal Corporation may avail.
(Kanwaljit Singh Ahluwalia) Judge August 11, 2010 "DK"