IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11424 of 1993 Date of decision: 18.01.2010 Anil Kumar, Clerk, Municipal Committee, Kharar ....Petitioner versus The State of Punjab and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. A.P. Bhandari, Advocate, for the petitioner. Mr.Anil Kumar Sharma, Additional Advocate General, Punjab. ---- 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 ? ---- K.Kannan, J. (Oral) 1. The writ petition seeks for a quashing of an order dated 20.08.1993 passed by the 2nd respondent promoting the 5th respondent as an Accountant Grade-II with effect from the date on which the person junior to him joined. As a consequential relief, the petitioner also states that he is entitled to be promoted to the higher post as, he having been senior to the 5th respondent in having acquired the qualification of passing municipal accounts examination and paper involving Punjab Town Improvement Act and rules thereunder. The grievance is that the petitioner had passed the examination earlier in the year, 1984 while the 5th respondent had passed the examination only subsequently and the seniority ought to have been fixed with reference to the acquisition of such qualification. Civil Writ Petition No.11424 of 1993 - 2 - 2. It is not denied that the petitioner as well as the 5th respondent were Clerks with the Municipal Committee, Ropar. By the proceedings dated 28.02.1989 issued by the Director-cum-Joint Secretary Local Government, it appears that the Government had sanctioned creation of posts as Accounts Clerks in the Improvement Trust and the 5th respondent who was an Accounts Clerk with the Municipal Committee, Ropar had been transferred to the post as an Accounts Clerk in the Improvement Trust and further promotion had also been accorded to him on 20.08.1993. The petitioner had himself made a representation on 18.11.1992 apprehending that the 5th respondent who was junior to him was likely to secure a promotion and apprising them of the fact that he had passed the qualifying examination for promotion as an Accountant and expressing his willingness to join with the Trust and warning them of action if any junior is promoted in that cadre. When the promotion was effected through the impugned proceedings, writ petition came to be filed. 3. The Government and the Municipal Committee have filed their respective written statements. The Municipal Committee has virtually confirmed the stand of the petitioner and stated that the 5th respondent had been transferred to the Improvement Trust without any resolution passed by them, while the Government has filed a written statement contending that the 5th respondent had been posted to the Improvement Trust in Ropar in public interest by the Director, Local Government as well as by a resolution passed by the Improvement Trust. The statement on behalf of the State was that the 5th respondent was, Civil Writ Petition No.11424 of 1993 - 3 - therefore, assigned the seniority retrospectively with consequential benefits on the basis of his length of service having entered the service in the year 1969 and the seniority list had also been published which was not opposed by the petitioner. It is the further submission on behalf of the State that the Improvement Trust and that the Municipal Committee were governed by different rules and the respective cadres were also different. The petitioner cannot seek for a comparison with promotion which the 5th respondent had obtained with the Improvement Trust. 4. The whole question would therefore depend on whether the contention of the State that the 5th respondent had been relieved and allowed to join the Improvement Trust and borne on their cadre even from the year, 1983 as contended in the written statement. 5. The contention of the State that the 5th respondent had been taken on the cadre of Improvement Trust even in the year, 1983, is sought to be repelled by the petitioner by reference to the proceedings of the Director-cum-Joint Secretary, dated 28.02.1989 which states that the 5th respondent was being posted as an Accounts Clerk in the newly created post at the Improvement Trust by way of transfer from Municipal Committee, Ropar, with immediate effect. It means that the 5th respondent could not have been borne on the cadre of the Improvement Trust earlier to 28.02.1989. If it was so, the representation given by the petitioner on 18.11.1992 that he had acquired the qualification even earlier and that he was willing to be considered for promotion at the Improvement Trust obtains credibility. We have already seen that the Municipal Committee has filed written statement contending that the 5th Civil Writ Petition No.11424 of 1993 - 4 - respondent had retained his lien to the Clerk's post only at the Municipal Committee and the order of transfer itself could not have been made except on deputation. If the 5th respondent had been promoted to the accountant's post on 20.08.1993, such promotion was being made, trouncing the seniority consideration which the petitioner had by the acquisition of his qualification even earlier to the 5th respondent. In such view of the matter, the petitioner would merit consideration to the promotion post from the date when the 5th respondent was promoted and placed above him. 6. It is a matter of admission that the petitioner had been subsequently promoted to the Accounts post in the year, 1995. It also appears that the 5th respondent has since retired from service. There is no scope for quashing the order of promotion which was already issued to the 5th respondent and the petitioner however will have to be granted notional promotion to the higher post from 20.08.1993, the date when the 5th respondent was promoted and he will draw his monetary benefits and all the consequential benefits on such a reckoning to the scale that the promotion post afforded. The calculation of the benefits shall be made within a period of 12 weeks from the date of the receipt of copy of this order. 7. The writ petition is allowed on the above terms. There shall be however no directions as to costs. (K.KANNAN) JUDGE 18.01.2010 sanjeev