IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.9095 of 1987 Date of decision: 26.7.2010 Kulwant Rai Sharma -----Petitioner Vs. The State of Punjab and others ----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL Present:- Dr. Balram Gupta, Sr.Advocate with Mr. Kohal Sharma, Advocate for the petitioner. Mr. Ravi Sodhi, Advocate for respondent No.4. Adarsh Kumar Goel,J. 1. This petition seeks quashing of orders Annexures P.3, P.8 and P.10. Vide Annexure P.3, respondent No.3 was appointed as ‘Corporation Engineer’. Vide Annexure P.8, a tentative seniority list was issued and vide Annexure P.10, selection grade was allowed, inter-alia, in favour of respondent No.3. 2. Case of the petitioner is that he was appointed in the year 1960 and was promoted as Sub Divisional Officer in 1976. He was then promoted as Corporation Engineer on regular basis from 8.12.1984. Respondent No.3 was granted promotion as Assistant Municipal Engineer vide order dated 1.2.1983 and as ‘Corporation Engineer’ w.e.f 8.12.1984. Respondent Nos. 3 and 4 were wrongly treated as senior to the petitioner. He earlier filed CWP No.4988 of 1985 which was disposed of on 29.1.1986 on statement of CWP No.9095 of 1987 learned counsel for the State that fresh seniority list will be issued after opportunity to all concerned. Inspite of this, seniority list was issued without hearing the petitioner. 3. In the reply filed on behalf of the State of Punjab, stand taken is that respondent No.3 was senior to the petitioner having been promoted as Assistant Corporation Engineer on 4.5.1976 while respondent No.4 was promoted as Assistant Engineer w.e.f 1.12.1976 as against promotion of the petitioner to the said post on 8.12.1976. 4. I have heard learned counsel for the parties and perused the record. 5. Contention raised on behalf of the petitioner is that respondent No.3 was given promotion as Assistant Engineer on 1.2.1983 as shown by Annexure P.2 while the petitioner was given promotion on 8.12.1976 and thus, the petitioner was entitled to be treated as senior. Similarly respondent No.4 was wrongly shown as having been promoted on 1.12.1976. 6. On the other hand, learned counsel for respondent No.4 points out that respondent Nos. 3 and 4 had been given promotion prior to the petitioner but in absence of sanction of the State Government, their original date of promotion was not being taken into account. After ex post facto sanction they were given their due seniority to which there could be no valid grievance. 7. After considering rival submissions, I am satisfied that respondent Nos. 3 and 4 have been validly declared senior to the petitioner. 8. In paras 3 and 4 of the reply of the State, it is stated as under:- “The respondent No.3 was appointed as Draftsman in the Municipal Committee, Ludhiana, with effect from 1.1.1962. He was promoted as Head Draftsman with effect 2 CWP No.9095 of 1987 from 1.4.1969. The then Administrator, Municipal Committee, Ludhiana promoted the respondent No.3 to the post of Assistant Municipal Engineer vide order No.220 dated 4.5.1976 in anticipation of approval of the Director, Local Government, Punjab. The appointment of respondent No.3 as Assistant Municipal Engineer by the Administrator in anticipation of approval was neither set aside nor approved. After provincialisation of Municipal Services, the seniority list of Head Draftsmen was drawn and circulated which was challenged by one Shri Hari Singh, Head Draftsman through CWP No.763 of 1981 because he had been shown junior to respondent No.3. However a statement at the Bar was made by the Assistant Advocate General, Punjab, for the respondent-State of Punjab, that the seniority would be determined afresh after affording opportunity to the petitioner Hari Singh within a month. The aforesaid writ petition was allowed accordingly vide order dated 20.10.1982 passed by a Division bench consisting of Hon’ble Mr. Justice DS Twatia and Mr. Justice B.S.Yadav. Consequently personal hearing was given to all the Head Draftsmen working in all the Municipal Corporation on 16.11.1982, 25.11.1982, 2.12.1982 and 3.12.1982. The final seniority list was drawn after taking into consideration claims and counter claims put forth by all the Head Draftsmen and was circulated. The respondent No.3 in this case was shown senior to all the Head Draftsmen including Shri Hari Singh petitioner. The case of respondent No.3 promoting him to the post of Assistant Municipal Engineer vide administrator’s order No.220 dated 4.5.1976 was still in the melting pot because prior to this promotion, as ordered by the Administrator of the Municipality on 4.5.76, the service of Assistant Municipal Engineers had been constituted vide Punjab State Government Notification dated 17.12.75 under section 38(1) of the Punjab Municipal Act, 1911 (hereinafter called the Act) and the case of respondent No.3 3 CWP No.9095 of 1987 for his absorption against the post of Head Draftsman remained pending decision by the authority (Screening Committee) appointed under section 38(6) of the Act. After the respondent No.3 had been found fit by the Screening Committee for his absorption as Head Draftsman in January 1983, his promotion to the post of Assistant Municipal Engineer, as had been ordered by the Administrator of Municipal Committee, Ludhiana vide his order dated 4.5.1976 was considered and ex post factor approval was accorded with retrospective effect with effect from 4.5.76. A copy of the relevant order dated 6.11.1984 is appended as Annexure R1 to this written statement. Promotion of respondent No.3, either as Head Draftsman or as Assistant Engineer was not quashed as alleged in this para of the writ petition. It is, however admitted that respondent No.3 was also given promotion as Assistant Engineer vide order dated 1.2.1983, appended as Annexure P.2 to this writ petition. But, it is submitted that this promotion became redundant after ex post factor approval to the promotion of respondent No.3 had been accorded by the competent authority w.e.f 4.5.76. It is also correct that respondent No.3 was promoted as Corporation Engineer with effect from 8.12.1984 by order appended as Annexure P.3 to this writ petition. 4. Admitted to the extent that respondent No.4 was appointed as Sectional Officer in Municipal Committee, Ludhiana (Now Municipal Corporation) with effect from 6.10.1966. However, it is submitted that on the representation of respondent No.4, his case for promotion was considered and he had been given retrospective promotion as Assistant Engineer in place of Shri Bhajan Lal who had been promoted as Assistant Engineer vide order No.IDLG(MSC)-76/150 dated 1.12.76. A copy of this order dated 13.12.85 is appended as Annexure R2. Some other Assistant Engineers have filed objections against the 4 CWP No.9095 of 1987 retrospective promotion of respondent No.4 as Assistant Engineer and a final decision on these representations is pending.” 9. It has been further stated in para 13 that personal hearing was given to the petitioner who had nothing to say after being made aware of the order dated 4.5.1976 giving sanction to the promotion of respondent No.3. 10. From the above, it is clear that appointment of the petitioner as Assistant Engineer was after the appointment of respondent Nos. 3 and 4. The petitioner could not, thus, claim seniority above them. Moreover, it is further clear from Annexure P.5 that the petitioner was to retire on 30.9.1999. Learned counsel for respondent No.4 says that the petitioner as well as private respondents have retired long back. Since it is clear from the stand on behalf of the State that the date of appointment of the petitioner was later to the date of appointment of respondent No.3 and 4, there is no error in not treating him senior to the said respondents. 11. Accordingly, the petition is dismissed. July 26, 2010 (Adarsh Kumar Goel) ‘gs’ Judge 5