Punjab-Haryana High Court
Shashi Kant And Others vs Unknown on 21 March, 2014
Author: Rajesh Bindal
Bench: Rajesh Bindal
CWP No. 22757 of 2012 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 22757 of 2012 (O&M)
Date of decision: March 21, 2014
Shashi Kant and others
.. Petitioners
v.
State of Punjab and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Kapil Kakkar, Mr. G. S. Bal, Mr. Vivek Sharma,
Mr. K. C. Singla and Mr. H. S. Batth, Advocates for the
petitioners.
Ms. Monica Chhibber Sharma, Deputy Advocate General,
Punjab.
...
Rajesh Bindal J.
This order will dispose of a bunch of petitions bearing CWP Nos. 22757, 23336, 24981 of 2012, 4417, 5921, 11800, 21325, 22568, 23629, 25146, 26676, 27802 of 2013, 1224, 2755 and 3000 of 2014, as common questions of law and facts are involved.
Some of the petitioners are working as Chief Pharmacists, whereas some are working as Pharmacists in Health Department in Punjab. The prayer is for quashing of the communication, vide which request of the petitioners for extension in service was declined and with a further direction that the petitioners be permitted to continue in service till they attain the age of 60 years, as after attaining the age of superannuation at 58 years, in terms of the amendment carried out in the Punjab Civil Services (First Amendment) Rules, Volume-I, Part-I, 2012 (for short, 'the Rules'), two years' extension, one year at one time, was admissible to the employees at Kumar Manoj 2014.03.26 09:09 I attest to the accuracy and integrity of this document CWP No. 22757 of 2012 [2] their option.
Learned counsel for the petitioners submitted that in terms of the Punjab Health and Family Welfare Technical (Group 'C') Service Rules, 2007 (for short, '2007 Rules'), Chief Pharmacists and Pharmacists are two separate cadres having different number of posts. Any decision taken by the authorities for one cadre of posts cannot be made applicable to the other. As the cadres are different and so the source of recruitment and further promotional channel. They have their separate seniority lists. The State Government vide notification dated 8.10.2012, substituted Rule 3.26, Clause (a) and (b) of the Rules providing age of superannuation. In terms of the amendment, an employee was entitled to extension upto two years service after attaining the age of superannuation at 58 years, at his option. Subsequent thereto, on the same date, a circular was issued by the Government to all the departments. Options were required from the employees for one year extension in service. In terms thereof, the petitioner, who were working as Chief Pharmacists and Pharmacists applied for extension in service. Vide circular dated 31.10.2012 issued by the Director, Health and Family Welfare, Punjab, extension of service to the Pharmacists was declined considering the fact that 906 posts of Pharmacists, who were working in rural dispensaries, had become surplus and cadre to that extent was diminishing. It was on account of the fact that 1,186 rural dispensaries of the Health Department were transferred to Zila Parishads in the year 2006.
Learned counsel further submitted that there are total 255 posts of Chief Pharmacists and 2,720 posts of Pharmacists, out of which 906 posts were declared as diminishing cadre on account of transfer of 1,186 rural dispensaries to Zila Parishads. The communication dated 31.10.2012 merely provides that cadre of Pharmacists is diminishing and not that of Chief Pharmacists, hence, extension of service to Chief Pharmacists cannot be denied, both being separate cadres having their independent strength as per 2007 Rules. It was further submitted that in the communication issued by the Government on 26.11.2012, extension was not to be granted where any cadre had been declared a diminishing cadre. In the present case, the Kumar Manoj 2014.03.26 09:09 I attest to the accuracy and integrity of this document CWP No. 22757 of 2012 [3] cadre of Pharmacists or Chief Pharmacists has not been declared as a diminishing cadre as such. Only some posts have allegedly been reduced on account of transfer of certain dispensaries to Zila Parishads.
It was further submitted that vide communication dated 2.5.2013 from the Director, Health and Family Welfare, Punjab to the Principal Secretary of the department concerned, it was requested that 202 more posts in the cadre of Pharmacists be sanctioned, whereas 66 posts of Chief Pharmacists Grade-II are required, which are to be upgraded by way of promotion, and 16 posts of Chief Pharmacists Grade-II are to be upgraded by way of placement. It was on account of shortage of staff. The submission is that once new posts were sought to be created, there was no question of declaring any cadre to be diminishing. However, there is nothing on record to point out that the aforesaid sanction was ever accorded by the State. Further submission is that in January, 2014, 335 posts of Pharmacists have been advertised by National Rural Health Mission, hence, the petitioners be not denied extension in service once new recruitments are being made on that posts. Some of the Pharmacists are on deputation with other departments as well. It was further submitted that though vide communication dated 29.12.2006, along with 906 posts of Pharmacists, 1,550 posts of Class-IV employees were also ordered to be part of the diminishing cadre, but still extension was granted to some of the Class-IV employees. The same was discriminatory.
On the other hand, learned counsel for the State submitted that the clarification issued by the Government on 26.11.2012 pertaining to the issue of extension of one year's service clearly provided that where a cadre is diminishing on account of reduction of posts, the extension is not to be granted. The aforesaid communication does not provide that the entire cadre should be diminishing. In the present case, on account of transfer of 1,186 rural dispensaries to Zila Parishads, 906 posts were declared surplus and the cadre to that extent was diminishing, which was for the reason that 200 posts of Pharmacists were lying vacant at that time. There are total 257 posts of Chief Pharmacists and 2,718 of the Pharmacists. The petitioners have already served upto the age of 58 years and have been serving even Kumar Manoj 2014.03.26 09:09 I attest to the accuracy and integrity of this document CWP No. 22757 of 2012 [4] after attaining the age of superannuation in terms of the interim order passed by this court. After the retirement of the incumbents working on the posts, the same will be abolished. Pharmacists and Chief Pharmacists is same thing, as both are to work in Health Department. There are total 2,975 sanctioned posts of Pharmacists including Chief Pharmacists. It is only that they are in different scales and different nomenclature has been given. All the posts of Chief Pharmacists are to be filled by way of promotion from the posts of Pharmacists. No direct recruitment is made on the post of Chief Pharmacist, hence, the same cannot be treated as separate. As regards grant of extension to Class-IV employees is concerned, it was submitted that number of vacancies, being more than the number of posts which were declared to be diminishing cadre, some of the employees were granted extension on Class-IV posts. It was further submitted that in Chief Pharmacist Grade-I and Grade-II, against 257 sanctioned posts, 104 were vacant, whereas in Pharmacists, out of total 2,718 posts and reducing 1,186 diminishing cadre posts, the balance was 1,532 posts. As against that, 1,897 Pharmacists were working, meaning thereby 365 Pharmacists in excess. Even if 104 out of them are promoted as Chief Pharmacists Grade-I and Grade-II, still 261 Pharmacists would be surplus. Thirty-two Pharmacists are working in other institutions on deputation. Once there is no work available, the Pharmacists do not deserve to be granted extension in service as it is meant to be given to the employees for which there exists work in the department.
Heard learned counsel for the parties and perused the paper book.
There are two issues involved in the present petitions, namely, right of extension of service to the Chief Pharmacists and to the Pharmacists. In the bunch of petitions, some of the petitions have been filed by Chief Pharmacists, whereas some have been filed by Pharmacists. In some of the petitions, Chief Pharmacists and Pharmacists have joined together.
Before proceeding to consider the contentions raised by learned counsel for the parties, firstly it is required to be dealt with as to whether Kumar Manoj 2014.03.26 09:09 I attest to the accuracy and integrity of this document CWP No. 22757 of 2012 [5] Chief Pharmacists and Pharmacists is one and the same thing or are two different posts. In my opinion, the decision thereof will not detain this court much as 2007 Rules provide an answer to this. Appendix `A' attached thereto provides nomenclature of different posts in the department, which are 43 in number. At Sr. No. 5 is the post of Chief Pharmacist having its own sanctioned strength and the pay scales. At Sr. No. 36 is the post of Pharmacist having its separate sanctioned strength of permanent and temporary posts and the pay scales. As per 2007 Rules, post of Chief Pharmacist is a promotional post for Pharmacist. Merely because Chief Pharmacist is a post, which is promotional post for Pharmacist, both cannot be said to be same as they have their own separate cadre and seniority list, hence, the contention of learned counsel for the State to that extent is rejected.
As a consequence of the aforesaid finding, the issue raised by learned counsel for the State that decision of the State to reject extension in service to the Pharmacists would include Chief Pharmacists as well has no legs to stand as the decision has to be considered in the light of the facts mentioned therein and the rules applicable.
The total number of sanctioned posts of Chief Pharmacists and Pharmacists are 257 and 2,718 respectively. As per the stand taken by the State, in the year 2006, 1,186 rural dispensaries were transferred to Zila Parishads, where Zila Parishads were to make their own appointments. At that time, 200 posts of Pharmacists were lying vacant. Vide communication dated 29.12.2006 (Annexure R-2), as a consequence of the transfer of rural dispensaries to Zila Parishads, 906 posts of Pharmacists and 1,550 posts of Class-IV employees were declared to be diminishing cadre. The aforesaid communication did not provide that any of the post in the cadre of Chief Pharmacists was declared as diminishing cadre, probably because of the reason that in none of the rural dispensaries, any Chief Pharmacist was working.
The memo dated 26.11.2012, issued by the State Government to all the departments provided that no extension in service be granted to the employees working in the departments where no work is available and Kumar Manoj 2014.03.26 09:09 I attest to the accuracy and integrity of this document CWP No. 22757 of 2012 [6] further where in any department, a cadre has been declared as diminishing, i.e., on account of reduction of posts, the extension in service be not granted. In the present case, as the facts have been placed before the court by the State, there were total 2,718 sanctioned posts of Pharmacists. On account of transfer of 1,186 rural dispensaries to Zila Parishads, the same were brought in diminishing cadre. In the communication dated 29.12.2006, the number was mentioned as 906 posts of Pharmacists. It was for the reason that 200 posts were lying vacant. Meaning thereby, the availability of work considering the number of hospitals/dispensaries under the control of the Health Department, was for 1,532 Pharmacists as per the sanctioned strength. As against that, the actual working strength was 1,897, i.e., 365 in excess. Against 257 sanctioned posts of Chief Pharmacists Grade-I and Grade-II, there were 104 vacancies. Even if promotions were granted from the cadre of Pharmacists to that of Chief Pharmacists Grade-I and Grade-II, 261 Pharmacists were still in excess. It was further pointed out that these 261 Pharmacists are claiming their pay from Subsidiary Health Centres/ Rural Dispensaries. As on account of transfer of 1,186 dispensaries to Zila Parishads, there was reduction in posts of Pharmacists in Health Department, it would not be just and reasonable to burden the same by paying salaries without there being any work. The policy issued by the Government clearly provided that no extension in service is to be granted where either there is no work or against the posts, which are declared to be part of the diminishing cadre.
For the reasons mentioned above, the writ petitions filed by Chief Pharmacists are allowed. The action of the Government in denying extension in service to them on the plea that the cadre of Chief Pharmacists is diminishing is declared illegal. They are held entitled to extension in service as per the policy of the State on fulfilment of the conditions laid down therein.
As far as the Pharmacists are concerned, 906 posts have already been declared to be part of the diminishing cadre on account of 1,186 rural dispensaries having been transferred to Zila Parishads (200 posts being vacant at that time) and at present the actual working strength of Pharmacits Kumar Manoj 2014.03.26 09:09 I attest to the accuracy and integrity of this document CWP No. 22757 of 2012 [7] being 1,897 against availability of work for 1,532 posts, i.e., 365 being surplus. Even if 104 vacant posts of Chief Pharmacists Grade-I and Grade- II are filled up by way of promotion and same number is adjusted from Pharmacists, still 261 Pharmacists are extra, namely, beyond the number required in terms of the hospitals/dispensaries being controlled by the Health Department, hence, the claim of Pharmacists for extension in service is rejected.
However, the petitioners, who have continued to work on the basis of interim orders passed by this court, shall not be denied the benefit of service during the said period. (Reference can be made to a judgment of Hon'ble the Supreme Court in Jagdish Prasad Sharma etc. etc. v. State of Bihar and others, 2013(9) SCALE 459.
For the reasons mentioned above, the writ petitions filed by Chief Pharmacists are allowed, whereas the petitions filed by Pharmacists are dismissed.
(Rajesh Bindal) Judge March 21, 2014 mk Kumar Manoj 2014.03.26 09:09 I attest to the accuracy and integrity of this document