-1- Civil Writ Petition No.12155 of 2006. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: February 19,2008. Rajendra Kumar ... Petitioner VERSUS Municipal Corporation, Chandigarh, and another ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.O.P. Batra, Advocate, for the petitioner. Mr. V.S. Bhardwaj, Advocate, for the respondents. -.- MOHINDER PAL, J. The petitioner was appointed as Sweeper, which is a Class-IV post, in the office of the Medical Officer (Health), Municipal Corporation, Chandigarh (hereinafter referred to as `the respondent-Corporation) on compassionate ground after the -2- Civil Writ Petition No.12155 of 2006. death of her father. He joined on the said post on July 13, 1993. The petitioner is B.Com., LL.B. As per Circular dated August 28, 2002 (Annexure P-3) issued by the Chandigarh Administration, Department of Personnel, there is a provision for filling up 15 % posts of Class-III (Clerk) by promotion from amongst Class-IV employees. The respondent-Corporation, vide letter dated February 17, 2006 (Annexure P-1) decided to fill up three vacant posts of Clerks from amongst Peons/Chokidars/Mashki/Cleaners working in the office of Medical Officer of the respondent-Corporation and invited applications for the same. The qualifications for the said posts were prescribed as Matriculation with English, five years' experience on a Class- IV post and knowledge of English Typewriting at a speed of 30 Words Per Minute. The petitioner applied for being considered for one of the said posts vide his application dated February 24, 2006 (Annexure P-2). However, his name was not considered because the posts of Class IV included in the letter (Annexure P-1) were Peons/Chokidars/Mashki/Cleaners and the post of Sweeper was not included therein. In this petition, filed under Articles 226/227 of the Constitution of India, the petitioner has prayed that the respondents be directed to consider his name for promotion to the post of Clerk, he being a Class-IV employee and fulfilling all the eligibility conditions for being promoted to the said post. In the written statement filed by the respondents, it has been pleaded that the post of Clerk is a promotional post -3- Civil Writ Petition No.12155 of 2006. and is being filled up by way of promotion. The petitioner, though may be eligible for appointment to the said post, but the same does not ipso facto entitle him to lay any claim on the promotional post, which can only be advanced to the persons falling in the feeder cadre. The post held by the petitioner does not fall within the feeder cadre and as such he is not entitled to be promoted to the post of Clerk. Since there are no Recruitment Rules for Class-III Ministerial Staff working in the office of Medical Officer (Health) of the respondent-Corporation, the model Recruitment Rules issued on August 28, 2002 were adopted and it was prescribed that Peon, Chokidars, Maskis and Cleaners be considered for promotion to the post of Clerk as they have no other channel of promotion while the Sweepers being a separate cadre having separate channel of promotion to the post of Sanitary Jamadar and then Head Sanitary Jamadar be not considered for separate channel of promotion. Accordingly, the advertisements were issued whereby the applications were invited from Peons, `Chokidars', Maskis and Cleaners for promotion as Clerks. Further, it has been pleaded that the post of Sweeper cannot be equated with the post of Peon. There is difference of qualifications required for appointment to the post of Sweeper and Peon. For the post of Sweeper, no educational qualification is required whereas for the post of Peon the candidate must have passed the Middle standard examination. We have heard the learned counsel for the parties and have gone through the records of the case. -4- Civil Writ Petition No.12155 of 2006. Once the respondent-Corporation decided to fill up three vacant posts of Clerks from amongst Class-IV employees, it was not open to it to exclude the petitioner from the consideration zone on the ground that he was serving on the Post of Sweeper. The post of Sweeper is a Class-IV Post. The respondent-Corporation is not justified in restricting the avenue of promotion to the post of Clerk only to Peons, Chokidars, Maskis and Cleaners, the other Class IV posts. The petitioner was wrongly denied the opportunity to compete for the post of Clerk against the quota meant for Class-IV employees. Accordingly, this writ petition is allowed to the extent that the respondents are directed to consider the name of the petitioner for appointment to the post of Clerk with reference to the vacancies for which applications were invited vide letter dated February 17, 2006 (Annexure P-1). If the petitioner is found meritorious, he will be entitled to be promoted and entitled to all consequential benefits i.e pay fixation and seniority, but shall not be paid any arrears of salary. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE February 19, 2008. ak