Punjab-Haryana High Court
Mohar Pal vs State Of Haryana And Others on 10 May, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
C.W.P.No.5468 of 2011
Date of Decision:- 10.05.2012
Mohar Pal ....Petitioner(s)
vs.
State of Haryana and others ....Respondent(s)
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CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
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Present:- Ms.Alka Chatrath, Advocate,
for the petitioner.
Mr.Harish Rathee, Sr.DAG, Haryana.
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AUGUSTINE GEORGE MASIH, J. (Oral)
Petitioner has approached this Court praying for quashing of the order dated 5.12.2008 (Annexure P-4) passed by respondent No.3 reverting the petitioner from the post of Fitter Grade-II to the post of Mechanical Fitter Helper.
It is the contention of the counsel for the petitioner that the petitioner was promoted from the post of Mechanical Fitter Helper to the post of Fitter Grade II vide order dated 22.12.2005 (Annexure P-1). While issuing the order of reversion dated 5.12.2008, the date of promotion of the petitioner has been taken as 12.9.2007 and it is on this date that the respondents have assessed the availability of the posts for his promotion. The ground taken for reverting him is that there was no vacant post available against which he could be promoted to the post of Fitter Grade II. Counsel further contends that the promotion of the petitioner was against C.W.P.No.5468 of 2011 -2- the post vacated by one Lekh Ram, who was promoted as Fitter Grade I and, therefore, there was no question of post being not available for promotion of the petitioner when his promotion order dated 22.12.2005 was passed by the respondents. She has also referred to communication dated 14.9.2010 (Annexure P-7) which has been addressed by the Superintending Engineer, Public Health Engineering Circle, Gurgaon to the Executive Engineer, Public Health Engineering Division No.1, Faridabad, to contend that even the concerned Superintending Engineer had brought it to the notice of respondent No.3 that the date which is crucial for consideration of availability of the post is 22.12.2005 whereas in the show cause notice and in the order of reversion, the date of promotion of the petitioner has been taken as 12.9.2007. On this basis, it has been contended by the counsel that the order of reversion of the petitioner dated 5.12.2008 cannot sustain.
On the other hand, counsel for the respondents submits that there was a specification mentioned in the order of promotion of the petitioner that the promotion was subject to the condition of finalization of the seniority list that he could be reverted if it is found that he was not eligible for promotion on account of qualification, length of service, experience, seniority or any other thing. Since it was found that on the date of his promotion, there was no vacant post on which he could be promoted, the order of reversion of the petitioner is fully justified. However, to a question put by this Court as to whether the date of promotion of the petitioner was treated as 22.5.2005 or 12.9.2007, counsel for the petitioner is unable to respond to the same nor there is any mention thereof in the C.W.P.No.5468 of 2011 -3- written statement which has been filed by the respondents.
I have heard counsel for the parties and gone through the records of the case. The facts as recorded above are based upon documents and, therefore, need not be repeated again. As is apparent from the order of promotion of the petitioner dated 22.12.2005 (Annexure P-1), he was promoted to the post of Fitter Grade-II against a vacancy which was created on account of promotion of one Lekh Ram as Fitter Grade I. This apparently shows the availability of the post on which the petitioner could be promoted. Leaving that aside, the fact remains that while issuing show cause notice to the petitioner and thereafter passing the order of reversion, the documents suggest that the date of promotion of the petitioner was treated as 12.9.2007 and it is on this date that the status of vacant post(s) was assessed by the respondents. This obviously cannot be the correct approach when the date of promotion of the petitioner was 22.12.2005 and not 12.9.2007. The position regarding vacancy as it existed on 22.12.2005 had to be taken into consideration, which the respondents should have done and, therefore, the impugned order of reversion of the petitioner dated 5.12.2008 (Annexure P-4) cannot sustain.
Accordingly, the writ petition is allowed; the impugned order dated 5.12.2008 (Annexure P-4) is hereby quashed. Respondents, if they so desire, can consider the position regarding availability of the vacancy as it existed on 22.12.2005 the date of promotion of the petitioner and if on the said date, there was no vacant post available against which the petitioner could be promoted, consequential action may be taken in accordance with C.W.P.No.5468 of 2011 -4- law.
It has been contended by the counsel for the petitioner that juniors to the petitioner also have been promoted, therefore, he be not reverted.
It shall also be taken into consideration that on the date of promotion of the petitioner if any junior has been promoted and has not been reverted, the petitioner shall not be reverted prior to his junior.
The consequential benefits as a consequence of the quashing of the impugned order dated 5.12.2008 (Annexure P-4) be released to the petitioner within a period of three months from the date of receipt of certified copy of this order.
May 10, 2012 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE