CWP No. 2868 of 2000 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 2868 of 2000 (O&M) Date of Decision : 22.072010 Ashwani Bhardwaj .......... Petitioner Versus Chandigarh Industrial and Tourism Development Corpn. Limited, SCO 121-22, Sector 17, Chandigarh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. D.S.Patwalia, Advocate for the petitioner. Mr. B.S. Walia, Advocate for respondent No.1. Mr. Sudhir Nar, Advocate for respondent No.2. Mr. Animesh Sharma, Advocate for respondent No.3. **** VINOD K. SHARMA, J. (ORAL) The petitioner invoked the jurisdiction of this Court under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certiorari for quashing the order dated 23.5.2002, vide which respondents No. 2 & 3 have been promoted from the post of Assistant Manager (Electrical) to the post of Sub Divisional Engineer (Electrical). The facts in brief are; that the petitioner was initially appointed as an Electrician in the year 1982, in CITCO by direct CWP No. 2868 of 2000 -2- ***** appointment. After expiry of 7 years of service, the petitioner was promoted to the post of Junior Engineer in the month of November, 1989 and is continuing as such till date. The case of the petitioner was, that he was the senior most Junior Engineer (Electrical), who was entitled to promotion to the post of S.D.E. (Electrical). In support of the averments the petitioner placed on record seniority list Annexure P/1, wherein the petitioner Ashwani Bhardwaj is shown at Sr. No. 4. Name of respondents No. 2 & 3 is not mentioned in Annexure P/1, because on the date of issuance of tentative seniority list Annexure P/1, respondents No. 2 & 3 were working as Assistant Manager (Electrical) in pursuance to their promotion, as these posts were created by the Board of Directors. It is not in dispute, that respondents No. 2 & 3 were senior to the petitioner in the cadre of Junior Engineer, as the appointment of respondents No. 2 & 3 as Junior Engineer was in May 1989, whereas the petitioner admittedly was promoted to the post of Junior Engineer in November, 1989. The case of the petitioner is that the next promotion from the post of Junior Engineer is to the post of Sub Divisional Engineer. On 7.1.1994, respondents No. 2 & 3 were promoted to the newly created posts of Asstt. Manager, which is clear from the office order Annexure P/3. The further case of the petitioner is that in the year 1996, Sh. V.V. Padmanabhan, who was working as S.D.E. (Electrical) and CWP No. 2868 of 2000 -3- ***** was on deputation with the Engineering Wing of the Corporation was repatriated to his parent department. On his repatriation, respondent No.2 was given an additional charge of the post of S.D.E. (Electrical). The petitioner being aggrieved by the said arrangement filed a representation on 3.6.1996. The case of the petitioner is that in spite of his having objected to the giving of additional charge, respondent No.3 was also given additional / officiating charge of the post of S.D.E. (Electrical A.C.), in pursuance to which he also joined the post. The representation made by the petitioner against this arrangement was not considered or decided. The case of the petitioner was that respondents No.2 & 3 were members of the Cadre of Engineering Wing and were working as Assistant Manager, and were given the charge of the post to which they were not entitled to. The petitioner was also aggrieved by the assignment according to which he was to work under respondents No.2 & 3, as Junior Engineer. The case of the petitioner was that on 6.1.2000, the petitioner was informed that his claim for promotion would be considered after the recruitment / promotion rules are framed which were under consideration. The petitioner having failed to achieve success in the department on his representation, he approached this Court by filing CWP No. 2868 of 2000 -4- ***** this writ petition. The case of the petitioner is, that during the pendency of the writ petition, respondents No.2 & 3 were confirmed as Assistant Manager and thereafter they have been promoted as SDE on abolition of the post Assistant Manager (Electrical) by the Department. The petitioner, therefore, amended the writ petition to challenge the promotion of the respondents No. 2 & 3 as SDE. Mr. D.S. Patwalia, learned counsel appearing on behalf of the petitioner challenged the order of promotion, primarily on the ground, that though respondents No. 2 & 3 were initially appointed to the post of Junior Engineer prior to petitioner but on their promotion to the post of Assistant Manager, they ceased to be the member of the Cadre . It was for this reason, that they were not shown in the tentative seniority list circulated vide Annexure P-1. The case of the petitioner is, that after respondents No. 2 & 3 ceased to be the member of the Cadre, they had no right to be promoted to the post of SDE, specially when they were confirmed as Assistant Manager, during the pendency of the writ, and that the feeder cadre for promotion to SDE is Junior Engineer and not Assistant Manager. It is also the contention of the learned counsel for the petitioner, that the post of Assistant Manager was not a cadre post, therefore, services rendered by respondents No.2 & 3 could not be considered for the purpose of their seniority. CWP No. 2868 of 2000 -5- ***** On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. The proposition of law raised by the learned counsel for the petitioner can not be disputed, but the question as to whether it is applicable to the facts of the present case. The respondents were not sent out from the employment by respondent No.1, respondents No.2 & 3 continued to work under the same employer, on a post which were created and respondents No.2 & 3 were promoted to the said post. The respondents continued to be members of cadre as no service rules have been framed, to hold that the post of Assistant Manager were ex-cadre posts. It is settled law that if the post, on which a person was appointed / promoted is abolished, he has to be offered the post which he was holding prior to abolition. If this principle is followed, then respondents No. 2 & 3 were to be brought back to their original post of Junior Engineer, in that event also respondents No. 2 & 3 would have been senior to the petitioner, specially when respondents No. 2 & 3 were promoted by the employer and was not on their request, not the post held by them could be said to be ex-cadre post. In view of the fact, that the petitioner and respondents No. 2 & 3 were working under the same employer, and that no cadre or rule framed so far, the petitioner can claim the post of Assistant Manager to be ex-cadre post to deny seniority to respondents No.2 & 3. Even if for the sake of arguments, they were not working CWP No. 2868 of 2000 -6- ***** on the cadre of Junior Engineer, still on their reversion on account of abolition of post they were to be placed in their original place of seniority, which is above of petitioner. Therefore, their promotion as SDE can not be questioned by the petitioner, on the plea, that respondents were not junior to him. There is no other ground raised to challenge their promotion except, on the question of seniority, which deserves to be rejected for the reasons stated. Consequence of rejection of the plea raised, this writ petition is without any merit, and is ordered to be dismissed, but with no order as to costs. 22.07.2010 (VINOD K. SHARMA) 'sp' JUDGE