Punjab-Haryana High Court
Harbans Singh vs Kamal Kumar Commissioner on 4 May, 2023
Author: Arvind Singh Sangwan
Bench: Arvind Singh Sangwan
Neutral Citation No:=2023:PHHC:067009
COCP-4191-2019 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
COCP-4191-2019 (O&M)
Date of Decision : May 04, 2023
Harbans Singh
.....Petitioner
Vs.
Kamal Kumar Commissioner
...Respondent
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. K.L. Arora, Advocate
for the petitioner.
Mr. M.S. Baath, Advocate
for the respondent.
ARVIND SINGH SANGWAN, J.
The petitioner alleges the non-compliance of the order dated 5.9.2019 passed in CWP-22226-2016.
The operative part of the order reads as under : -
"In the judgment rendered by a Division Bench of this Court in CWP-13607-1990 (Annexure P-4) and followed by a Coordinate Bench of this Court in CWP-12355-2005 (Annexure P-13), wherein similarly situated persons (Class-IV employees/Peons) were given the benefit of promotion by exempting them from typing test, since their juniors had been promoted as a Clerk from the post of Peon against 10% reservation provided in Class-III category by 1 of 6 ::: Downloaded on - 10-05-2023 21:32:23 ::: Neutral Citation No:=2023:PHHC:067009 COCP-4191-2019 (O&M) -2- way of promotion from Class-IV as per relevant applicable instructions dated 24.08.1983 contained at Annexure P-2.
2. Petitioner, herein, is stated to be handicapped owing to the paralysis in his right hand fingers caused by Polio. Given the physical condition of the petitioner, he is, in any case, unable to take the typing test. Apart from the same, the petitioner has taken a pointed stand in the petition (Para Nos. 24 and 26), wherein he has given instances of other Class-IV employees who were promoted to the post of Clerk by granting exemption from typing test. The said averments have not been denied in the return filed by either respondent No.1 or respondent No.2.
3. Learned counsel for the petitioner points out that during pendency of the writ petition, vide order dated 28.08.2017 (Annexure R2/2), though the petitioner was promoted as a Clerk but a condition was put that he had to pass typing test within a period of six months, failing which he would be reverted back. Since the petitioner was not in a position to clear the typing test, he was reverted to the post of Peon vide order dated 10.01.2019 (Annexure P-17) and the said order was stayed by this Court, during the proceedings of the present petition.
5. I am unable to accept the argument of learned counsel for respondent No.2 that the petitioner cannot be treated at par with the persons who are stated to be junior to him but were granted the 2 of 6 ::: Downloaded on - 10-05-2023 21:32:24 ::: Neutral Citation No:=2023:PHHC:067009 COCP-4191-2019 (O&M) -3- exemptions, as the promotion was accorded to them prior to coming into force of 1998 Rules and the said Rules say that the promotion can only be granted to the Class IV employee, if he passes the typing test.
6. The petitioner was, admittedly, eligible for promotion to Class III from Class-IV prior to coming of the 1998 Rules and his juniors are stated to have been promoted prior to the said Rules. Therefore, the old Rules should also apply to the petitioner and he cannot be denied the benefit, particularly, his juniors having been accorded the same.
7. Having heard the rival contentions of the learned counsels for the parties and gone though the order dated 10.01.2019 (Annexure P-17), wherein, the only ground of reversion of the petitioner is that he has not passed the typing test, therefore, he is not entitled to be promoted as Clerk, which flies in the face of promotion having been granted to the other similarly situated persons without conducting the typing test. The reversion of the petitioner/non-grant of promotion by exempting him from typing test is, therefore, not sustainable when tested it on a parity under Article 14 of Constitution of India. Even otherwise, I am of the opinion that the case of the petitioner is squarely covered by the judgment rendered by Division a Bench of this Court and later on followed by a Coordinate Bench of this Court, the writ petition is allowed. Respondents are directed to pass appropriate orders after considering the case of the petitioner for promotion without insisting on his passing the typing test.
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8. Needless to say, in case, the petitioner is found fit and eligible for promotion as stated above without insisting on the typing test, the benefit shall be accorded to him in accordance with law within a period of 60 days."
Counsel for the petitioner submits that the petitioner is a physical handicap person as he is Polio affected and joined the service in the said category.
It is stated that the petitioner was denied promotion to the post of Clerk from the date of his junior Ravinder Singh was promoted in the year 2003. However, the claim of the petitioner was declined despite a direction issued by this Court in CWP-12355-2005. The petitioner again filed CWP-22226-2016 in which the aforesaid order was passed. The petitioner alleges that the compliance has not been made.
Reply by way of affidavit of the Commissioner, Municipal Corporation, SAS Nagar, Mohali is on record, in which it is stated that the petitioner was working as Class IV employee in the Corporation and previously was promoted to the post of Clerk w.e.f. 28.8.2017, subject to passing the typing test. It is further stated that by passing the speaking order dated 20.11.2019, the claim of the petitioner was duly considered and he was recommended to be promoted w.e.f. 16.4.2003. However, later on, another speaking order dated 28.7.2020 was passed in which the following benefits were granted :-
"Consequently upon ante dated promotion of Sh. Harbans Singh, aged 57 years s/o S. Makhan Singh, 4 of 6 ::: Downloaded on - 10-05-2023 21:32:24 ::: Neutral Citation No:=2023:PHHC:067009 COCP-4191-2019 (O&M) -5- r/o H.No.2, Municipal Corporation Complex, Phase-X, SAS Nagar, Mohali, Punjab, the following consequential and financial benefits have been released in his favour :-
1. He shall be entitled to the seniority in the cadre of Clerks from the date of his notional promotion to the post of Clerk i.e. 16.4.2003, the date on which his junior was promoted.
Consequently, Sh. Harbans Singh has been assigned seniority and his name has been mentioned at serial No.34-A in the seniority of Clerks working in the Municipal Corporation, SAS Nagar, Mohali. However, he shall be entitled to the arrears of pay w.e.f. 28.8.2017, the date from which he started actually working on the post of Clerk.
(ii) Further Sh. Harbans Singh shall be deemed to have been designated as a Junior Assistant with effect from 1.1.2017, the date from which a junior employees to him had been designated as Junior Assistant. However, he shall be entitled to the arrears of pay arising out of said designation given to him from the date he started actual working as Clerk i.e. 28.8.2017. Vide letter No.1332, dated 28.7.2020, Sh.Harbans Singh has been informed accordingly.
3. Consequently, the Municipal Corporation has released the financial benefits to Sh. Harbans Singh to the tune of Rs.1,13,714/- in his salary account No.6673001300000194 maintained in 5 of 6 ::: Downloaded on - 10-05-2023 21:32:24 ::: Neutral Citation No:=2023:PHHC:067009 COCP-4191-2019 (O&M) -6- PNB Bank, Sector 68, SAS Nagar on 20.7.2020 vide cheque No.669726 dated 15.7.2020 of PNB Bank, Sector 68, SAS Nagar."
It is stated that the necessary compliance has already been made.
Again, another compliance affidavit was filed in which it is stated that after promotion the petitioner, he is granted seniority at serial No.34-A in the seniority list of Clerks working in the Municipal Corporation, SAS Nagar, Mohali, whereas junior of the petitioner Ravinder Singh is granted the seniority at serial No.35. It is also stated that all the monitory benefits along with 6% interest were paid to the petitioner.
In view of the same, no wilfull disobedience is made out.
Dismissed.
( ARVIND SINGH SANGWAN )
May 04, 2023 JUDGE
satish
Whether speaking/reasoned : YES / NO Whether reportable : YES / NO Neutral Citation No:=2023:PHHC:067009 6 of 6 ::: Downloaded on - 10-05-2023 21:32:24 :::