Civil Writ Petition No.7972 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-15.3.2011 Chaman Lal Kathpal, Accountant, Municipal Committee, Malout ...Petitioner Versus The State of Punjab and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.M.K.Tiwari, Advocate for the petitioner. Mr.R.S.Rawat, Assistant Advocate General, Punjab for respondent Nos.1 and 2. Mr.Sukhvir Singh, Advocate for respondent No.3. M ehinder S ingh S ullar , J. (Oral) Tersenessly, the facts, which need a necessary mention for the limited purpose of deciding the sole controversy, involved in the instant writ petition and emanating from the record, are that the petitioner was appointed and working as Accountant Grade-II in the pay scale of ` 1800-3200, while the pay scale of Accountant Grade-I was ` 2000-3500 in the department of Local Government, Punjab. He alongwith 14 other Accountants was transferred from Municipal Committee (for brevity “MC”), Budhlada to MC, Malout, by virtue of transfer order dated 30.5.1988 (Annexure P3). Petitioner was stated to be possessed with the qualification for the post of Accountant Grade-I, as he has cleared the examination of Accountants meant for A class MC, as per certificate (Annexure P1). Thereafter, as the post of Accountant was stated to be lying vacant in A class MC, Abohar, therefore, the petitioner requested the Director, Local Government, Punjab (respondent No.2) to adjust him there. Alternatively, it was requested by him that in case he cannot be adjusted in A class MC, then, he may be allowed the grade of Accountant Grade-I, by means of representation dated 1.3.1985 (Annexure P2). He made another representation dated 21.11.1990 Civil Writ Petition No.7972 of 1991 2 (Annexure P4) for the grant of pay scale of Accountant Grade-I on account of his posting in A class MC, but in vain. 2. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that no doubt, he was appointed as Accountant Grade-II in the pay scale of ` 1800-3200, but since he had worked in A class MC, so, he was entitled to the pay scale of ` 2000-3500 of Accountant Grade-I in this regard. The same was stated to have been wrongly denied to him by the respondents. On the basis of aforesaid allegations, the petitioner preferred the instant writ petition claiming the grade attached to the post of Accountant Grade-I in the pay scale of ` 2000-3500, invoking the provisions of Articles 226 and 227 of the Constitution of India, in the manner indicated hereinabove. 3. The respondents contested the claim of the petitioner. The respondent Nos.1 and 2 filed their joint written statement, while respondent No.3 filed its separate written statement, inter-alia pleading certain preliminary objections of, maintainability of the writ petition, cause of action and locus standi of the petitioner. Petitioner was stated to have retired on 31.5.2005 as Executive Officer, after attaining the age of superannuation. The respondents claimed that petitioner was a member of municipal service of Accountant Grade-II, which was duly constituted by the Government in exercise of powers conferred under section 38 of The Punjab Municipal Act, 1911 (hereinafter to be referred as “the Act”). The service conditions of all the constituted services were controlled and regulated by The Punjab Municipal Service (Recruitment and Conditions of Service) Rules, 1975 (for short “the Service Rules”). As per these Service Rules, respondent No.2 was designated as appointing authority of the cadre of Accountant. 4. The case set up by the respondents, in brief in so far as relevant, was that there were two different and separate cadres of Accountant Grade-I and Grade-II. Accountant Grade-I was eligible for posting in A class MC, whereas Accountant Grade-II was eligible for posting in the remaining B & C classes MCs. Civil Writ Petition No.7972 of 1991 3 However, the pay scale of Accountant Grade-I as ` 2000-3500 and the pay scale of Accountant Grade-II as ` 1800-3200 were admitted. The case of the respondents further proceeds as under:- “On 30.05.1988, Annexure R-1/1, the Government pending formal appointment (by direct recruitment or by promotion) on the post of Accountant Grade-I, in exigency decided to post Accountant Grade-II, in Municipal Council Class-I because of shortage of the Accountant Grade-I The petitioner as well as other employees named in the order dated 30.05.1988 joined at the place of their posting. Later on, the Government noticed that though the arrangement dated 30.05.1988 was only adhoc arrangement and in no manner amounted to the grant of promotion to any of the Accountant Grade-II yet it was desirable that only senior most Accountant Grade-II are posted in the Municipal Council Grade-I so that there is no annoyance amongst those Accountant Grade-II, who were senior to the petitioner and other employees named in order dated 30.5.1988 and were still working in Municipal Council Class-II. In furtherance of this decision, the Government passed orders dated 10/09/1991, Annexure P/5 interalia transferring all such junior Accountant Grade-II to the Municipal Council Class-II. The petitioner was accordingly also transferred and posted in Municipal Council Ahmedgarh, Class II Municipal Council because many employees working as Accountant Grade-II and senior to the petitioner were still working in Municipal Council Grade-II. As such, the Govt. decision dated 10.09.1991, Annexure P/5, was legal and valid and was passed in the compliance of the law of natural justice. Further no right has accrued to the petitioner to claim the wages of the post of Accountant Grade-I from 30.05.1988 onwards because the petitioner was not promoted and appointed as Accountant Grade-I. That the petitioner was not senior most in the cadre of Accountant Grade-II on 30.05.1988 when the petitioner alongwith other Accountant Grade-II, in exigency and as an interim arrangement were posted in Municipal Council Class-I. It is submitted that at the time of grant of promotion to any employee, the Government is to ensure that the senior most employee is promoted provided that no departmental disciplinary proceedings for major punishment or criminal proceedings are pending against the official and that the Annual Confidential reports of the official carry no adverse entry. No service record of the petitioner was considered Civil Writ Petition No.7972 of 1991 4 while passing the orders dated 30.05.1988, therefore, when the petitioner was neither senior most in the feeder cadre of Accountant Grade-II nor the other basic principles of seniority-cum-merit were followed, the petitioner cannot claim the wages of the post of Accountant Grade-I. It is also referable here that no other Accountant Grade-II, who was also posted in Municipal Council Class-I on 30.05.1988 has claimed the wage of the post of Accountant Grade-I. As such the civil writ petition deserve to be dismissed with costs.” 5. According to the respondents, the tentative seniority list of Accountant Grade-I and Grade-II was circulated, by way of letter dated 26.11.1980 (Annexure R1/2) and final seniority list (Annexure R1/3) of Accountant Grade-II was notified, in which, the name of the petitioner was mentioned at Serial No.34. Similarly, the respondent No.3, while adopting the line of pleadings contained in the written statement of respondent Nos.1 and 2, has further clarified that the State Government is competent to post the Accountants in any MC, in view of the provisions contained in section 38(3) of the Act and Rules. As such, the petitioner was not entitled to claim pay scale of Accountant, which was meant for A class MC. It will not be out of place to mention here that the respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 6. It is not a matter of dispute that the petitioner did not file any replication/rejoinder to controvert the allegations contained in the written statements of the respondents. That is how I am seized of the matter. 7. Assailing the action of the respondents, the learned counsel contended with some amount of vehemence that although the petitioner was appointed as Accountant Grade-II, but since he possessed the requisite qualification of Accountant Grade-I and was working in A class MC, so, he was entitled to the pay scale of Accountant Grade-I. In support of the contention, he has placed reliance on the judgment of Hon'ble Supreme Court in case Smt.P.Grover v. State of Haryana 1983(4) S.C.C. 291 and of this Court in case Civil Writ Petition No.7972 of 1991 5 Sewa Singh and another v. The Punjab State Tubewell Corpn. Ltd. Chandigarh and others 1987 (1) S.L.R. 691. 8. Hailing the action, on the contrary, the learned counsel for the respondents urged that the cadres of Accountant Grade-I and Grade II are entirely different and distinct and the eligibility qualifications for the post of Accountant Grade-I in A class MC is entirely different than that of Accountant Grade-II in B & C classes MCs and as the service conditions of petitioner were governed by the Service Rules and the State Government was competent to transfer and post him in the MC, therefore, he was not entitled to the pay scale of Accountant Grade-I in A class MC. 9. Having heard the learned counsel for the parties, having gone through the record and relevant law with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant writ petition in this respect. 10. As is clear that in Smt.P.Grover's case (supra), the appellant was an outstanding teacher. In the year 1968-69, the Government of Haryana honoured her by presenting the State Award for teachers. She attained the age of superannuation on August 20, 1978. About two years before she attained the age of superannuation, she was promoted as acting District Education Officer with effect from July 19,1976. The Government of Haryana had taken a policy decision as early as in 1965 that the services of teachers, who had received the National or State Awards, should be extended until they attained the age of 60 years, on an year by year basis, if their service record continued to be good otherwise. Pursuant to the policy decision, her services were extended first by one year and later by another year. During the period of extension of service, she worked as Principal, Government Higher Secondary School, Mahendergarh and was acting as District Education Officer. She was finally retired from service on August 31, 1980. The pay scale was denied to her on the ground that there was no class-I post available Civil Writ Petition No.7972 of 1991 6 in the cadre. On the peculiar facts and circumstances of that case, it was observed by Hon'ble Apex Court that she is entitled to be paid the salary of a District Education Officer from the date she was promoted to the post. 11. Sequelly, in Sewa Singh's case (supra), relying on the judgment of P.Grover's case (supra), it was ruled that the action of the Corporation in not promoting the Junior Engineers, eligible for promotion as Assistant Engineers within their own quota and giving the charge of these posts to them in their own pay scales cannot be justified and they were entitled to the same salaries, on the principle of 'equal pay for equal work'. 12. Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of the petitioner in the instant controversy. 13. What is not disputed here is that petitioner has since been retired from service on 31.5.2005 as Executive Officer, on attaining the age of superannuation. He was selected and appointed as Accountant Grade-II in the pay scale of ` 1800-3200. The pay scale of Accountant Grade-I at the relevant time was ` 2000-3500. The petitioner was junior and his name figured at Serial No.34 of the final seniority list (Annexure R1/3) of Accountant Grade-II. He alongwith 14 other persons was transferred from MC Budhlada to MC Malout, by virtue of transfer order (Annexures P3 (R1). The celebrated argument of learned counsel that since the petitioner possessed the requisite qualification and was posted in A class MC, so, he was entitled to the pay scale of Accountant Grade-I, is not only devoid of merit but misplaced as well. 14. As is evident from the record, that since the petitioner was not appointed as Accountant Grade-I at any point of relevant time, so, he cannot legally claim the pay scale of this post, irrespective of the fact that he was stated to have possessed the required qualification or was posted in A class MC. On the other hand, the contention of learned counsel for the respondents that the service Civil Writ Petition No.7972 of 1991 7 conditions of the employees were governed by the Service Rules and as the State Government was competent to transfer and post such employees in the MC, by way of transfer order (Annexures P3 (R1), therefore, such transfer and posting will not entitle the petitioner (Accountant Grade-II) to claim the pay scale admissible to the post of Accountant Grade-I, has considerable force. 15. As indicated earlier, the name of petitioner figured at Serial No.34 of the final seniority list of Accountant Grade-II. If this feeble submission of learned counsel for petitioner is accepted, then, great injustice would be caused to the persons, who were senior to him (petitioner). The mere fact that petitioner alongwith 14 other persons was transferred from MC Budhlada to MC Malout, as per transfer order (Annexures P3 (R1), keeping in view the exigency of service and during the course of recruitment/appointment of direct recruitment or promotion of Accountant Grade-II to the post of Accountant Grade-I, as discussed hereinabove, would not legally entitle them to claim the higher pay scale of Accountant Grade-I. 16. Therefore, it is held that petitioner, who was working at the relevant time as Accountant Grade-II, was not entitled to the pay scale of Accountant Grade-I, as urged on his behalf. Thus, the contrary arguments of learned counsel for petitioner “stricto sensu” deserve to be and are hereby repelled in the obtaining circumstances of the case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is dismissed with costs. (Mehinder Singh Sullar) 15.3.2011 Judge AS Whether to be referred to reporter?Yes/No