Punjab-Haryana High Court
K.L. Nijhawan vs Haryana State Electricity Board And Ors on 3 March, 2014
Bench: Jasbir Singh, Harinder Singh Sidhu
LPA No. 2165 of 2013(O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No. 2165 of 2013 (O&M)
Date of Decision : 03.03.2014
K.L. Nijhawan ... Appellant
Versus
Haryana State Electricity Board and ors.
.... Respondents
CORAM:HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE HARINDER SINGH SIDHU
Present: Mr. N.C. Kinra, Advocate
for the appellant.
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JASBIR SINGH, J.(Oral)
CM No.5467-LPA of 2013 For the reasons given in the application, delay of 05 days in filing the appeal is condoned.
CM stands disposed of.
LPA No.2165 of 2013 K.L. Nijhawan, the appellant has filed this appeal against the judgment dated 19.08.2013 passed by learned Single Judge dismissing Civil Writ Petition No. 14537 of 1991, filed by the appellant. In that writ petition, the appellant had laid challenge to the promotion of respondents No. 5 to 10 against the post of Head Clerks.
As per admitted facts on record, the appellant and the above said respondents were working as Clerks with the respondent- Kumar Dinesh 2014.03.07 12:39 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No. 2165 of 2013(O&M)
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department. It is not in dispute that some posts of Lower Division Clerk were advertised and the appellant competed against those posts and was selected as such on 20.07.1963. He continued to work there as such till 1979 when he applied for and was selected as Divisional Accountant. Admittedly the cadre of accounts and that of clerks is separate and is governed by the separate rules. In the meantime, the above respondents were promoted to the post of Head Clerks. The appellant has challenged the order of promotion stating therein that his juniors have wrongly been promoted.
Learned Single Judge vide the impugned judgment dismissed the writ petition filed by the appellant holding that once the appellant had joined a separate cadre, he cannot be given benefit which was rightly given to the respondents, referred to above. After noting arguments of both the parties, it was observed as under:-
"5. There is no difficulty in accepting the fact that the petitioner was senior to the private respondents in the clerical cadre. If he had persisted in the same line and if anyone of his juniors had been promoted, the issue of being considered for promotion from the date when his juniors were promoted would arise. In this case, however, it is an admitted fact that there are two different cadres in the establishment, namely, accounts and clerical cadres. When he was appointed in the year 1979 as Divisional Accountant, he was getting absorbed in another line and it ought not to be taken merely as temporary officiation. He earned a new qualification Kumar Dinesh 2014.03.07 12:39 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No. 2165 of 2013(O&M)
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by participating in departmental examination and had joined as Divisional Accountant. Cases of exercise of lien when a person is appointed on deputation or in an employment in an ex-cadre post or a situation where a person holds an ad hoc promotion are wholly different from a case such as what obtains in this case, such as it obtains to a person opting for a different stream in the same establishment after acquiring additional qualification and seeks for return to his original cadre. Such a return will be impermissible unless rules themselves allow for such a course. The reliance in the judgment of this Court in Dalbir Singh's case (supra) is misplaced because this Court was considering the case of a person, who was on deputation with the local government department as Law Officer and he held a lien to the post of Superintendent Grade-II. An appointment to a higher post as Under Secretary was denied to him although the channel of promotion was through a substantive post which he was entitled to hold from his parent cadre. S. Aryan's case (supra), the Supreme Court was explaining that there was nothing like lien on a post unless a person was made permanent in a post. It sought to explain the difference between the fact that person is regularized was not same thing as confirmation of service. I do not know as to how this judgment could help the petitioner in any way, for unless the post to which the petitioner was appointed in the Kumar Dinesh 2014.03.07 12:39 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No. 2165 of 2013(O&M)
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accounts cadre was a post on deputation or an ad hoc appointment, it could not be stated that the petitioner had a lien to the clerical cadre. When he had opted consciously to the accounts cadre, he had to only look for future prospects in the same stream and cannot seek for return to his original post. This can result in very serious turnover in any establishment, if the career-switch to and fro were to be entertained at the instance of the employee at his whims. The relief claimed in the plaint and the writ petition was, therefore, not possible at all.
6. The reference to Rule 3.13 of the Punjab Civil Services Rules is also without any substance, since it deals with five different situations: (i) when he performing duties of the same post; (ii) while he is in foreign service or holding a temporary post or officiating in another post; (iii) during joining time on transfer to another post unless he is transferred substantially to a lower post, in which case, his lien is transferred to the new post from the day when he is relieved of his duties without post; the lien at the place here will obtain only during the joining time of transfer; (iv) when a person who was on leave other than refused leave granted after the date of compulsory retirement; (v) a person is under suspension and suspension is revoked. None of the five circumstances delineated under the relevant rules is applicable to the petitioner. He cannot take an appointment to the accounts cadre after acquiring of a new qualification as though it was an Kumar Dinesh 2014.03.07 12:39 I attest to the accuracy and integrity of this document High Court,Chandigarh LPA No. 2165 of 2013(O&M)
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appointment in an ad hoc post. It was cadre post and a regular appointment. There was no question of the petitioner seeking for repatriation to the clerical cadre."
It was rightly said that as per the provisions of Rule 3.13 of the Punjab Civil Services Rules, Volume -I(for short 'The Rule') an employee while performing the duties of the same post or working on temporary or officiating capacity can retain his seniority in the department concerned. It was noted as a matter of fact that regular posts were advertised in the separate cadre of accounts. The appellant applied for the same and was selected. Now the appellant cannot claim seniority over the others in the cadre of Clerk.
No case is made out to cause interference by this court in the present appeal.
Dismissed.
(JASBIR SINGH ) JUDGE ( HARINDER SINGH SIDHU ) JUDGE 03.03.2014 dinesh Kumar Dinesh 2014.03.07 12:39 I attest to the accuracy and integrity of this document High Court,Chandigarh