In the High Court of Punjab & Haryana at Chandigarh
C.W.P. No.2120 of 2006
Date of decision: July 22, 2008
Gurmukh Pawar
... Petitioner
versus
State of Punjab and others
... Respondents
Coram: Hon'ble Mr. Justice M.M. Kumar
Hon'ble Mr. Justice A.N. Jindal
Present: Mr. M.S. Khaira, Sr. Advocate with
Mr. Abinashi Singh, Advocate
for the petitioner.
Ms. Charu Tuli, Sr. DAG, Punjab
for the respondents.
A.N. Jindal, J.
A direction has been sought to be issued to the State of Punjab
to consider petitioner’s seniority from the date of his joining i.e. 29.8.1972
and grant him promotion with effect from the date his juniors were
promoted with all other consequential benefits.
It has been submitted by the petitioner that he joined as Clerk in
the office of District Rehabilitation Department vide order No.2/(21)
72/19093-19136/EA/Admn. dated 29.8.1972. Thereafter he was transferred
to Kapurthala under Deputy Commissioner, Jalandhar vide orders Endst.
No.2(81)79/11462-71/EA/Admn. dated 7.5.1979, where he joined on
14.5.1979. Later on, he was transferred to Deputy Commissioner’s Office
Patiala by the State Government vide orders Endst. No.2(2)80/6747-
6816/EA/Admn. Dated 5.3.1980. In pursuance of the aforesaid orders, he
joined in Tehsil Office, Sirhind on 19.3.1980. Thereafter he was transferred
to Rajpura by the Deputy Commissioner Patiala. Then vide order Endst. .
No.2 (13)91-P-2/8181- 8212 dated 8.7.1991, State Government transferred
him from Rajpura to Tehsil Office Khanna, District Ludhiana where he
joined on 5.9.1991. At the time of his transfer from Rajpura to Tehsil
Office Khanna, he never made any request, whereas, the order dated
C.W.P. No.2120 of 2006 -2-
8.7.1991 reveals that only Mukhtiar Singh, Amar Nath, Ravel Singh and
Krishan Kumar have been transferred on their own request. Tentative
seniority list was circulated vide Endst. No.229-2188/EA dated 7.9.1998
which gave the seniority position as on 31.12.1994 for Ludhiana District but
this list did not contain the name of the petitioner. The petitioner filed a
representation against the non inclusion of his name in the seniority list in
which he was heard on 2.2.1999 and the orders were passed on 28.4.1999
(Annexure P-3). In Annexure P-5 it was mentioned that he was not
transferred on his own request, therefore, he could claim seniority of his
previous place of posting and his name was placed at Sr. No.139 of the
seniority list. It has also been pleaded that vide orders No.663-667/EA
dated 5.3.2004, he was deputed to handle all the pending cases against the
State and by the State in courts which was the job of the Senior Assistant
with the pay scale of Rs.5800-9200, whereas, despite having performed the
said duties, even prior to and in pursuance of the aforesaid orders he has
neither been promoted nor granted the aforesaid pay scale which was
receivable by the Senior Assistant. The petitioner filed representation to the
Deputy Commission, Ludhiana against the said decision vide representation
dated 13.5.2002 (Annexure P-4), but he was neither heard nor was granted
promotion from the date his juniors were promoted.
In the reply filed by the State it was admitted that the petitioner
was appointed on 28.9.1972 in the Rehabilitation Department. However, it
was submitted that the State Government had transferred him from Rajpura
to District Khanna, therefore, the parent department of the petitioner is
Rehabilitation Department and not the Deputy Commissioner, Ludhiana.
But this plea was contradicted in reply on merits, while submitting that on
8.7.1991, the petitioner was transferred as Rehabilitation Clerk in the office
of Tehsil Office, Khanna in Ludhiana district and he was absorbed in the
cadre of clerk in the establishment of Deputy Commissioner, Ludhiana
from the date of his joining i.e. 5.9.1991 as was done in the case of other
employees namely Smt. Veena Rani and Sh. Jit Ram etc. It was further
pleaded that the petitioner cannot claim seniority prior to the date of joining
C.W.P. No.2120 of 2006 -3-
in the cadre and he had joined the cadre only on 5.9.1991.
The substantial question of law which arises out of the
pleadings is whether the petitioner was transferred from Rajpura to Khanna
on his own request thereby loosing his seniority of his service in his parent
district.
Admittedly, the petitioner had joined as a Clerk in the office of
Rehabilitation Department on 29.8.1972. It is also not disputed that on
8.7.1991, the petitioner was transferred as a Rehabilitation Clerk in the
office of Tehsil Officer of Khanna in District Ludhiana and he was absorbed
in the cadre of Clerk in the office of Deputy Commissioner, Ludhiana. The
only crucial point emanating from the pleadings is whether the petitioner
was transferred from Rajpura to Khanna on his own request or was
transferred in the public interest. In the former case, he would loose his
seniority, whereas, in the later case, he cannot be deprived of the benefit of
period of his service which he rendered in his parent district. The Assistant
Commissioner (General), Ludhiana vide his report has concluded that the
official joined in the office at Khanna on 5.9.1991 after his transfer from the
office of Deputy Commissioner, Patiala and before his joining he had given
an undertaking that he was to loose his seniority of his past service as the
petitioner was transferred to Khanna. The benefits of past service could not
be given to him. His name was missing from the seniority list of year 1993
due to clerical mistake and his name was placed at right place in the
seniority list but this report made by the Assistant Commissioner (General),
Ludhiana seems to be un-supported by any document and against the
transfer orders. Neither any application for transfer, which may have been
made by the petitioner, nor any undertaking given at Rajpura or Khanna
before joining his service has been produced on the record despite the
specific query to the Deputy Advocate General, Punjab for showing any
such document furnished by the petitioner vide which he had given an
undertaking, nothing was shown to prove this fact. The enquiry made by
the Assistant Commissioner (General), Ludhiana appears to be motivated
and against the transfer orders which do not reveal if he was transferred on
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his own request. In the absence of any such evidence we are unable to
accede to the contention advanced by the learned State counsel.
As regards the other points that the petitioner worked at the
post of Senior Assistant and he was entitled to the salary in the grade of
Rs.5800-9200, no evidence in support of this plea has been brought on
record.
Consequently, we partly accept the petition and issue direction
to consider the petitioner’s seniority after adding his past service on the
different stations prior to the joining at Khanna for granting promotion
along with all other consequential benefits for which he is entitled.
(M.M. Kumar) (A.N. Jindal)
Judge Judge
July 22, 2008
deepak