Punjab-Haryana High Court
Krishan Lal vs State Of Punjab And Others on 28 October, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No.12828 of 1993 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
CWP No.12828 of 1993
Date of Decision : 28.10.2013
Krishan Lal .....Petitioner
Vs.
State of Punjab and others .....Respondents
...
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK ...
1. To be referred to Reporter or not ?
2. Whether the judgement should be reported in the Digest ?
...
Present : Mr. S.K.Arora, Advocate for the petitioner.
Mr. Piyush Bansal, AAG, Punjab, for the State.
...
RAMESHWAR SINGH MALIK, J Feeling aggrieved against the alleged inaction on the part of respondent authorities, the petitioner has approached this court by way of present writ petition, under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Mandamus, directing the respondents to promote the petitioner as Draftsman w.e.f. the date his junior was promoted.
Brief facts of the case are that pursuant to his appointment as a Tracer in the respondent-department, petitioner joined on 3.9.1975 on permanent basis. At that point of time, the qualification was matriculation and Sahni Greesh 2013.11.13 11:41 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.12828 of 1993 2 petitioner was fully eligible for appointment as Tracer. Later on, vide notification dated 19.2.1990 (Annexure P-1) post of Tracer came to be re- designated as Junior Draftsman, raising the qualification to matriculation with two years Industrial Training Institute Certificate of Draftsman. There was nothing objectionable against the petitioner about his work and conduct. After re-designation of the post of Tracer as Junior Draftsman, petitioner kept on working on the post of Junior Draftsman. Respondents never asked the petitioner to pass the two years ITI certificate of Draftsman and he was allowed to continue in service as Junior Draftsman. It is the further pleaded case of the petitioner that name of the petitioner figured at Sr.No.114 of the seniority list, whereas respondent no.4 was at Sr.No.199. Although, respondent no.4 was promoted as Draftsman, but petitioner was not considered for promotion on the ground that he was not ITI diploma holder. Petitioner represented vide his representations dated 22.7.1991 (Annexure P-2) and 5.11.1992 (Annexure P-3), however, no order was passed by the competent authority. Having been left with no other option, petitioner approached this court by way of instant writ petition.
Notice of motion was issued and pursuant thereto, written statement was filed on behalf of respondents no.1 to 3. Vide order dated 30.8.1994, a Division Bench of this court admitted the writ petition for regular hearing. That is how, this court is seized of the matter.
Learned counsel for the petitioner submits that when the petitioner was appointed as Tracer, he was duly qualified for the post, being matriculate. He further submits that Annexure P-1 cannot operate against the petitioner because the same would operate prospectively, whereas the petitioner came to be appointed in the year 1975. Appointment of the petitioner was never Sahni Greesh 2013.11.13 11:41 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.12828 of 1993 3 questioned at any point of time and even after re-designation of the post of Tracer as Junior Draftsman, petitioner was allowed to continue, as such, despite the addition of qualification of ITI diploma. In view of these admitted facts, official respondents were duty bound to consider the petitioner for promotion to the post of Draftsman alongwith his junior-respondent no.4. To substantiate his arguments, learned counsel for the petitioner also relies upon the judgement of the Hon'ble Supreme Court in B.N. Saxena Vs. New Delhi Municipal Committee and others, 1990(4) SCC 205. Finally, he prays for allowing the present writ petition.
Per contra, learned counsel for the State submits that when the notification Annexure P-1 is read as a whole, petitioner was not eligible for promotion. He further submits that criteria for promotion was not seniority alone, but it was seniority-cum-merit. Once the petitioner was not eligible for promotion, the writ petition was misconceived. He prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that in the given fact situation of the present case, the instant writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.
It is an admitted position on record that at the time of appointment of the petitioner in the year 1975, qualification for the post of Tracer was matriculation. When the petitioner had worked for a long period of 15 years, service rules came to be amended vide notification Annexure P-1 dated 19.2.1990, whereby the post of Tracer was re-designated as Junior Draftsman Sahni Greesh 2013.11.13 11:41 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.12828 of 1993 4 and qualification was raised to matriculation with two years ITI certificate of Draftsman. Further a Junior Draftsman was held eligible for promotion as Draftsman after a minimum period of 12 years of service. It is also not in dispute that the petitioner had more than the required number of years of service to his credit. Service record of the petitioner was also not objectionable. Junior of the petitioner, respondent no.4 came to be promoted vide order dated 14.9.1993 and claim of the petitioner for consideration for promotion was not considered only on the ground that he was not a qualified Junior Draftsman. The stand taken by the respondents have been found to be wholly misplaced. If the stand taken by the respondents is accepted, the appointment of the petitioner even on the post of Tracer re-designated as Junior Draftsman would become illegal. Having said that, this court feels no hesitation to conclude that once the petitioner was allowed to continue even on the re-designated post of Junior Draftsman, he was very much entitled for promotion to the post of Draftsman, being fully eligible and he is hereby declared, as such.
This court has found force in the contention raised by learned counsel for the petitioner that the amendment in the service rules will operate prospectively and not retrospectively. When the petitioner was appointed as Tracer in the year 1975, he was fully eligible and competent for appointment, being matriculate. If some additional qualification came to be added in the eligibility criteria for appointment to the post of Tracer, re-designated as Junior Draftsman by way of notification dated 19.2.1993 (Annexure P-1), the same will not operate retrospectively. Appointment of the petitioner as Tracer, re- designated as Junior Draftsman could not have been said to be illegal. Once the petitioner was fully competent and eligible to be appointed as Tracer, he Sahni Greesh 2013.11.13 11:41 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.12828 of 1993 5 will remain eligible and competent to work as Junior Draftsman after re- designation of his earlier post of Tracer, irrespective of addition of the qualification of ITI diploma.
It has gone undisputed on record that right from the year 1975, petitioner has been working as Tracer upto the year 1990 and thereafter he worked as Junior Draftsman. His service record remained satisfactory. During the course of hearing, learned counsel for the petitioner apprised this court that the petitioner had superannuated in the year 2007, but unfortunately on the same post, on which he was initially appointed in the year 1975. It has been found that all other service benefits including the financial step up, ACP grade etc. were rightly granted to the petitioner, except the promotion as Draftsman, which was illegally withheld. In this view of the matter, it is unhesitatingly held that the petitioner was eligible and entitled for promotion as Draftsman from the same day i.e. 14.9.1993, when his junior-respondent no.4 was promoted.
The above said view taken by this court also finds supports from the judgment of the Hon'ble Supreme Court in B.N. Saxena's case (supra). The relevant observations made by the Hon'ble Supreme Court, which can be gainfully followed in the present case, read as under :-
" 3. Prior to February, 1973, the qualifications prescribed for the post of Head Draftsman was Matric with Diploma/Certificate in Draftsmanship from a recognised institution with three years' experience in preparing engineering drawings in an electric supply undertaking or an Engineering Manufacturing Organisation. The qualifications for the post of Junior Draftsman were, however, not prescribed. The petitioner Sahni Greesh 2013.11.13 11:41 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.12828 of 1993 6 was appointed as Junior Draftsman without any Diploma/Certificate.
4. For the first time, the NDMC by a policy decision dated February 2, 1973 redesignated Junior Draftsman in the scale of Rs.110-200 as Senior Draftsman in the scale of Rs.150-240. The Resolution, in effect, validated the recruitment of the petitioner and others similarly situated.
5. By the same Resolution, the NDMC has revised the qualifications for the post of Head Draftsman as under :-
"Head Draftsman : From Senior Draftsman on seniority- cum-selection basis. However, the minimum qualification should be a Diploma with a minimum of 3 years service as Draftsman in the grade of Rs.250-400 or a total of 6 years service as Senior and Junior Draftsman. The question of outside recruitment does not arise."
6. The question is whether the petitioner possesses the prescribed qualification. The revised rules provide alternate qualifications for the post of Head Draftsman. The first part of the rule prescribes a diploma with a minimum of three years service as Senior Draftsman in the scale of Rs.250-400. The second limb of the revised rule refers to the service rendered by the candidate. It provides for six years of service as Senior and Junior Draftsman. The first part of the rule is almost similar to the qualification prescribed prior to the amended rules. The old rule provided :
"Matric with Diploma/certificate in Draftsmanship from a recognised institution with 3 years experience in preparation Sahni Greesh 2013.11.13 11:41 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.12828 of 1993 7 of Engineering Drawings in an Electric supply undertaking or an engineering manufacturing organisation."
7. The second limb of the rule was evidently, to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. Vs. J.P. Chaurasia, 1989 (5) SLR 788 : 1988 (5) SLR 639 (SC). It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated as Senior Draftsmen without any Diploma qualification should acquire such diploma qualification for further promotion. Such a view would not be consistent and coherent with the revised rule and its object. We have no doubt that the second limb of the revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter.
8. In the result we allow the appeal and in reversal of the order of the High Court we direct the respondent to consider the case of the petitioner for promotion to the post of Head Draftsman." Recapitulating the facts of the present case and respectfully following the law laid down by the Hon'ble Supreme Court in B.N. Saxena's case (supra), this court is of the view that the respondent authorities have proceeded on a misconceived approach, while denying the right of consideration for promotion to the petitioner.
Sahni Greesh2013.11.13 11:41 I attest to the accuracy and integrity of this document High Court, Chandigarh CWP No.12828 of 1993 8
No other argument was raised.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that the present writ petition deserves to be allowed.
Consequently, a writ of Mandamus is issued directing the respondent authorities to promote the petitioner to the post of Draftsman with effect from 14.9.1993, when his junior-respondent no.4 was promoted, as such, with all consequential service benefits. Since the petitioner has superannuated, let respondent no.2 ensure the completion of entire exercise at an early date, but in any case within a period of three months from the date of receipt of a certified copy of this order.
Resultant service benefits including financial benefits like arrears of salary, revision of pension and arrears of pension etc. shall be released in favour of the petitioner without any further loss of time. Since the genuine claim of the petitioner was illegally withheld, he shall also be entitled for interest @ 9% per annum from 14.9.1993, till the date of actual payment.
With the observations made and directions issued, herein above, the instant writ petition stands allowed, however, with no order as to costs.
28.10.2013 (RAMESHWAR SINGH MALIK)
GS JUDGE
Sahni Greesh
2013.11.13 11:41
I attest to the accuracy and
integrity of this document
High Court, Chandigarh