C.W.P.No.17761 of 2007 1 In the Punjab and Haryana, High Court at Chandigarh. C.W.P.No.17761 of 2007 Decided on April 24,2008. Chaman Lal Premy --Petitioner vs. State of Punjab and others --Respondents. Coram: Hon'ble Mr.Justice S.S.Saron. Hon'ble Mr.Justice Rakesh Kumar Jain. Present: Mr.T.P.Singh,Advocate,for the petitioner Mr. P.C.Goyal, Senior D.A.G.Punjb, Rakesh Kumar Jain,J: The petitioner has prayed for the issuance of a writ in the nature of certiorari for quashing the order dated 13.8.2007 (Annexure P3) vide which his one annual increment with future effect has been forfeited, the order dated 19.10.2007 (Annexure P5) vide which his statutory review petition filed against the order Annexure P-3 has been dismissed and for the issuance of a writ in the nature of mandamus seeking a direction to the respondents for restoration of the benefit of increment. The petitioner was appointed as Block Development and Panchayat Officer on 16.8.1984. He was promoted as District C.W.P.No.17761 of 2007 2 Development and Panchayat Officer (for short, 'D.D.P.O.') on 27.9.1992. He was given current duty charge for the post of Deputy Director in the month of February, 1996 and till date, he is serving as a Deputy Director in the said capacity. The petitioner remained posted as Deputy Director, Panchayats at Head Office from December 1998 to February,2002 with additional charge of Controller, Panchayati Raj (Finance), Cattle Fair. The facts leading to the present controversy, in short, are that there is a big cattle fair ground in an area of 15/16 acres at Jagraon. A post of Mali-cum- Chowkidar has been sanctioned for this cattle fair ground in order to protect infrastructure like the boundary wall, cattle fair building, motor pump and further in order to look after the staff. The D.D.P.O.Ludhiana, is the appointing authority for the said post of Mali- cum- Chowkidar, who appointed one Ram Dayal as Mali-cum-Chowkidar on regular basis. However, on 18.8.1998, said Ram Dayal had expired. After his death, D.D.P.O, appointed one Harjinder Singh son of Kashmir Singh as Mali-cum- Chowkidar vide order dated 9.2.2001 and endorsed a copy of the order to the office of Director, Rural Development and Panchayats to grant the ex-post facto approval to the appointment in view of Rule 19.6 of the Punjab Financial Rules, Vol-I, where Head of the Department is competent to grant sanction. The petitioner being Incharge of the fair as Controller, Panchayati Raj (Finance) and Cattle Fair from 1998 to February, 2002 dealt with the aforesaid case and put up the same before the competent authority i.e. The Director, Rural Development and Panchayats, who vide his order dated 03.7.2001, granted the necessary sanction. However, on 5.10.2006, the petitioner was served with a show C.W.P.No.17761 of 2007 3 cause notice under Rule 10 of the Punjab Civil Services (Punishment and Appeal), Rules,1970 with the allegations that the D.D.P.O. without getting prior approval appointed said Harjinder Singh son of Kashmir Singh against the post of Mali-cum-Chowkidar with Cattle Fair Ground, Jagraon on temporary basis and the petitioner who was working as Deputy Director Panchayats, having additional officiating charge of the post of Controller, Panchayati Raj (Finance) Cattle Fair, forwarded the case of appointment of Harjinder Singh to the Minister, Rural Development, Panchayats and after getting the approval of the Minister, Ex-Post Facto sanction to the temporary appointment of Harjinder Singh as Mali-cum- Chowkidar was given and in this process, illegal appointment has been made for which the department had to make payment of Rs. 35,956/- as salary to him. The petitioner submitted a detailed reply to the show cause notice but the competent authority vide its order dated 13.8.2007 imposed a penalty of forfeiture of one annual grade increment without future effect. Aggrieved against the above order, the petitioner filed a statutory review petition under Rule 21 of the Punjab Civil Services (Punishment and Appeal), Rules,1970, which too, was dismissed on 19.10.2007. The petitioner has, thus, sought quashing of both the orders Annexures P-3 and P-5, inter-alia on the ground that the post of Mali- cum- Chowkidar, is already sanctioned for Cattle Fair Ground, Jagraon, for which the D.D.P.O, Ludhiana is the appointing authority, who had C.W.P.No.17761 of 2007 4 appointed Harjinder Singh as Mali-cum- Chowkidar against the said post on daily wages on D.C.Rates and sought ex-post facto sanction. The said appointment has been sanctioned by the competent authority. Therefore, the petitioner neither being the appointing authority, nor competent authority to grant sanction has been illegally penalized. The petitioner has further urged that the petitioner had, through his note dated 12.6.2001, put up the matter before the Ministrer, Incharge as required under the rules of business,but was not in any way responsible for the appointment of aforesaid Harjinder Singh. On notice of motion, the respondents have filed counter affidavit of Smt. Maya Gupta, Under Secretary, Department of Rural Development and Panchayats, Punjab, on behalf of respondent Nos. 1 and 2. The whole case that has been projected in the written statement in so far as the role of the petitioner is concerned, is that “the petitioner who was working as Controller, Panchayati Raj (Finance) is guilty of processing the case in the Head Office by concealing the instructions of ban dated 23.1.2001”. For this allegation, the petitioner was issued show cause notice dated 15.10.2006 and after getting his explanation, has been imposed penalty of forfeiture of one annual grade increment vide order dated 13.8.2007 (Annexure P-3). It has been further mentioned by the answering respondents that the petitioner had put up a note dated 12.6.2001 in which he did not refer to the instructions dated 23.1.2001, which was issued by the Punjab Government,Personnel Department vide circular letter No. 11/34/2000-4 PP -III/1301 vide which ban was imposed on recruitment of daily wage/ work-charged workers and it was C.W.P.No.17761 of 2007 5 also provided that whenever any person is so employed in violation of these instructions, the Department may take suitable action against the defaulting officer. It was also provided that the responsibility of the Head of Department is to ensure that no worker employed in violation of these instructions be allowed to continue. Learned counsel for the petitioner has argued that so far as the petitioner is concerned, even if he had made a note dated 12.6.2001, without making reference to the instructions dated 23.1.2001, that makes no difference as the alleged ban imposed through instructions dated 23.1.2001 was also lifted on 05.6.2001 i.e. before the date when note dated 12.6.2001 was made by the petitioner. Therefore, if the reference of the instructions dated 23.1.2001 is not made by the petitioner in his note, it is not violation of the instructions and nothing can be imputed to the petitioner in this regard. On the other hand, learned counsel for the State could not deny the aforesaid factual aspect. We have heard learned counsel for both the parties and have also perused the record. The only allegation against the petitioner is that he did not refer to the instructions dated 23.1.2001 in his note dated 12.6.2001, whereas it is an admitted fact on the record that the ban imposed through instructions dated 23.1.2001 had been lifted on 05.6.2001, much prior to the note dated 12.6.2001 already made by the petitioner while referring C.W.P.No.17761 of 2007 6 the case of Harjinder Singh for his appointment as Mali-cum-Chowkidar to the Minister concerned which was further approved by the competent authority. In view of the above discussion, we find no violation of the instructions having been committed by the petitioner for which he has been penalized for forfeiture of one annual increment without future effect. As such, the present writ petition is allowed and the impugned orders Annexure P-3 and P-5 are hereby quashed being illegal and unsustainable in the eyes of law. The respondents are further directed to restore the benefit of increment to the petitioner. However, there shall be no order as to costs. (Rakesh Kumar Jain) Judge April 24,2008 ( S.S.Saron ) RR Judge