Civil Writ Petition No.19072 of 2003 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.19072 of 2003 Date of decision: September 07, 2010. Madan Lal Kukreja ...Petitioner(s) v. State of Punjab & Anr. ...Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Amit Chopra, Advocate, for the petitioner(s). Shri Salil Sagar, Additional Advocate General, Punjab, for the respondents. Kanwaljit Singh Ahluwalia , J. “Whether a confirmed Clerk, who was allowed benefit of special pay and was working as a Steno-typist, can be denied channel of promotion in the cadre of Clerks?”, is the question posed in the present writ petition. The case set up by the petitioner is that even if he was working as a Steno-typist and was drawing Rs.25/- as special pay, he being confirmed Clerk, cannot be denied promotion in the cadre of Clerk as there is no severance from the parent cadre and, thus, denial of promotion from Civil Writ Petition No.19072 of 2003 -: 2 :- the post of Clerk to Junior Clerk being bad, is liable to be quashed. Whereas the stand of the respondents is that once the petitioner, being Steno-typist, even though was drawing the same pay scale of Clerk, having opted to be out of the cadre of the Clerk, can only confine himself for promotion in the cadre of Steno-typist. It is stated that the acceptance of Rs.25/- as special pay on the part of the petitioner amounts to forego the rights available to the petitioner as a Clerk. To appreciate the prayer made in the writ petition and the relief sought, it is necessary to recapitulate the facts briefly. Petitioner was appointed as a Clerk on ad hoc basis in Medical College, Amritsar through Employment Exchange and discharged his duties as such there from 26.6.1967 to 18.10.1968. Thereafter, the petitioner was appointed as a Clerk on regular basis in the Directorate of Employment, Punjab on 15.10.1968 and joined his duties on 19.10.1968 in the office of District Employment Exchange, Gurdaspur. Petitioner was granted benefit of the service rendered by him in the Medical College, Amritsar for the purpose of re-fixation of pay. Petitioner qualified departmental (procedural test) on 22.5.1969 and on 12/16 February, 1971 petitioner was confirmed as a Clerk. Holding the permanent post of Clerk, the petitioner was provisionally promoted as Steno-typist and joined his duties as such on 6.9.1971. At relevant time, Steno-typist and the Clerk both were placed in the pay scale of Rs.110-250. However, Steno-typist was only granted a special pay of Rs.25/- per month. Case of the petitioner is that his service record being good, he was allowed to cross first efficiency bar in the pay scale of Rs.510-800 with effect from 1.1.1983. On 1.1.1978, 50% of the Clerks were placed in the pay scale of Rs.400-600 and the remaining 50% Civil Writ Petition No.19072 of 2003 -: 3 :- were granted senior scale of Rs.510-800 and they were designated as Senior Clerks. It is further pleaded that vide order at Annexure P-5 dated 11.3.1985, petitioner was placed in the pay scale of Rs.510-800 with effect from 1.1.1978 and he further crossed second efficiency bar in the pay scale of Rs.510-800 on 1.1.1998. Punjab Govt. accepted the report of the Pay Commission and with effect from 1.1.1986, the cadre of Clerk was bifurcated into ratio of 20:40:40:, in three pay scales and designated as Clerk, Senior Clerk and Junior Assistant. From the cadre of Clerks 20% Clerks were placed in the pay scale of Rs.950-1800, with start of Rs.1,000/-; 40% as Senior Clerks, in the pay scale of Rs.1200-2100, and the remaining 40% as Junior Assistants, in the pay scale of Rs.1500-2640. Petitioner claimed that in the seniority list of Clerks, he was at Serial No.73. Grievance of the petitioner is that with effect from 1.1.1986, his salary was fixed in the pay scale of Rs.1200-2100 whereas a number of juniors to the petitioner in the seniority list were designated as Junior Assistants in the revised pay scale of Rs.1500-2640 with effect from 1.1.1986. Petitioner had represented to the authorities that since he was a confirmed Clerk and even though he was working as a Steno-typist, he should have also been designated as a Junior Assistant as number of persons junior to him in the cadre of Clerk were designated as Junior Assistant. To deny this relief, respondent-State has relied upon a communication dated 1.9.1986 sent by the petitioner Annexure R-3, exercising the option and the same reads as under:- “Sir, With reference to your letter No.A-12/90491 dated 18.8.1981, ti is requested that no Rules regarding promotion of Civil Writ Petition No.19072 of 2003 -: 4 :- Assistants from the post of steno typist grade-1 and as well as instructions regarding the promotion of assistants amongst the senior clerks have not been issued nor any instructions have been brought to my notice. Kindly inform the instructions for the promotion of Assistant so that I may be decide to give my option. If the promotion of Assistant is to be made amongst the steno typist, my name may be kept in the cadre of steno typist. Dated: 1-9-81. Yours faithfully, Sd/- Madan Lal Kukreja Steno typist grade-I O/O Sub Regional Employment Exchange, Amritsar.” It is the stand of the State that in view of this communication, petitioner had opted to remain in the cadre of Steno-typist and therefore, he was not entitled to be posted as Junior Assistant. To controvert this assertion, counsel for the petitioner has relied upon a judgment of this Court rendered in Surinder Kumar Kathuria v. Registrar, Cooperative Societies, Punjab, CWP No.15489 of 1990, decided on 6.1.1993 (Annexure P-11), where a similar question was raised. This Court, answering the question in favour of the petitioner, who was a confirmed Clerk and worked as a Steno- typist, has held as under:- “ It is the admitted position that the petitioner was confirmed as a clerk vide order dated March 16, 1984 w.ef. June 1, 1983. It is also admitted that vide order dated January 3, 1986, the petitioner was designated as a Senior Clerk. It is not disputed that the petitioner has not yet been confirmed on any other post including that of Steno-typist. Once it is admitted that the petitioner is a substantive Clerk, he is entitled to be considered Civil Writ Petition No.19072 of 2003 -: 5 :- for the grant of every benefit like promotion or higher scale of pay before a person junior to him is considered. Confirmation on the post of Clerk gives him a lien. A perusal of Rule 3.13 of the Punjab Civil Services Rules, Volume I, Part I shows that an employee continues to retain a lien on the post on which he is confirmed even while he is holding another post on “temporary or officiating” basis. A person is deemed to be a member of the cadre for all intents and purposes. All benefits accruing by virtue of this fiction have to be afforded to him before these can be given to a person who may be junior to him.” It is not disputed that the petitioner is a confirmed Clerk and his services have not been confirmed in the cadre of Steno-typist. However, Shri Salil Sagar, appearing for the respondent-State, has simply placed reliance upon Annexure R-3, which has been reproduced above, to urge that this was a valuable exercise of option by the petitioner to forego his claim to the post of Clerk and from that date, i.e., 1.9.1981, name of the petitioner was kept in the cadre of Steno-typist. A perusal of Annexure R-3 reveals that there was no emphatic exercise of the option, and the same was conditional. It states that the rules and instructions regarding promotion to the post of Assistant have been issued, but till the same are notified he will be allowed to remain as Steno-typist. Thus, for all intents and purpose, petitioner was a confirmed Clerk. Counsel for the petitioner, to fortify his submission, has further placed reliance upon Surinder Kumar Khurana v. High court of Punjab and Haryana at Chandigarh & Ors., 2009(1) SCT 763, wherein the contention that the petitioner therein has changed his cadre Civil Writ Petition No.19072 of 2003 -: 6 :- from Clerk to Steno-typist and was, thus, not entitled to be considered for promotion to the post of Senior Assistant was rejected by holding as under:- “... Since the post of Steno-typist is temporary in nature and the petitioner was promoted from a permanent post, in terms of Rule 3.15, he continues to hold lien on the permanent post...”. I find merit in the contention of the Counsel for the petitioner. Since the petitioner was a confirmed Clerk and was holding a permanent post of a Clerk, he cannot be denied designation of a Junior Assistant especially when the same was granted to his juniors in the cadre of Clerk. Furthermore, the promotion of the petitioner as a Steno-typist was provisional and option exercised by him vide Annexure R-3 was conditional. Thus, this Court is of the view that ratio of law laid down in Surinder Kumar Kathuria and Surinder Kumar Khurana's cases (supra) squarely cover the case of the petitioner. Therefore, the present writ petition is allowed and petitioner is held entitled to be designated as Junior Assistant from the date his juniors were so designated. The petitioner will be entitled to re-fixation of salary as Junior Assistant and all consequential benefits including arrears of pay. However, the arrears of pay shall be restricted to 38 months preceding the date of filing of the writ petition. No costs. [Kanwaljit Singh Ahluwalia] September 07, 2010. Judge kadyan