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 C.W.P. No.2120 of 2006 -4- 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