IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 2173 of 2009 Date of Decision: February 20, 2010 Iqbal Singh …Petitioner Versus Chandigarh Administration, Chandigarh and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE AJAY TEWARI Present: Mr. Namit Kumar, Advocate, for the petitioner. None for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The instant petition is directed against order dated 28.6.2004, passed by the Deputy Commissioner-cum-Registrar Cooperative Societies, U.T. Chandigarh-respondent No. 2 reverting the petitioner from the post of Inspector Grade-II to that of Peon (A-1). Challenge has also been made to the orders dated 30.9.2005 and 22.8.2007, passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’), dismissing OA No. 630/CH/2004 and Review Application No. 40 of 2004 respectively, filed by the applicant-petitioner. A further prayer has been made for directing respondent Nos. 1 and 2 to treat the petitioner as Inspector Grade-II and grant all the retiral benefits admissible to the said post along with arrears of salary and interest @ 18% per annum from the due date till payment. CWP No. 2173 of 2009 2. Brief facts of the case are that the petitioner is a Matriculate. He belongs to Scheduled Caste Category. He is also an ex-serviceman. He joined as Peon in the office of the Registrar Cooperative Societies, U.T. Chandigarh- respondent No. 2 on 3.6.1982. His conditions of service are governed by the Rules known as ‘the Punjab Cooperative Subordinate Service Rules, 1936 (for brevity, ‘the Rules’), which have been adopted by the Union Territory of Chandigarh (A-2). The Rules are applicable to the post of Sub Inspector, which was subsequently re-designated as Inspector Grade-II. It has been claimed that the post of Inspector Grade II can be filled up by two modes, namely, (i) by direct recruitment; and (ii) by selection from Sub Inspectors employed by the Punjab Cooperative Union. However, in special circumstances, the Registrar is empowered to appoint any person already employed in the Cooperative Department when any vacancy of Inspector or Sub Inspector occurs. He is competent to determine the manner in which such a vacancy is to be filled up. Rule 13 of the Rules empowers him to relax the operation of any of the Rule which causes undue hardship in any particular case. 3. In 1986, respondent No. 2 sent a requisition to the Employment Exchange, U.T. Chandigarh, for filling up one regular post of Sub Inspector in the Cooperative Department, U.T. Chandigarh from amongst the Scheduled Caste Category in the pay scale of Rs. 450-800. Being eligible, the petitioner also applied for the said post on 24.7.1986 (P-1). On 1.8.1986, respondent No. 2 sent a communication to the petitioner calling him to attend the interview on 4.8.1986 at 11.00 a.m. along with the candidates sponsored by the Employment Exchange (Annexure RA-3). However, the interview could not be held as no candidate belonging to Scheduled Caste category was available with the Employment Exchange. Accordingly, the Registrar Cooperative Societies- 2 CWP No. 2173 of 2009 respondent No. 2 constituted a Departmental Promotion Committee (DPC). On the basis of the recommendations made by the DPC, The Registrar Cooperative Societies passed an order dated 14.4.1987 (A-3), which reads thus:- “On the recommendations of Departmental Promotion Committee, Sh. Iqbal Singh, Peon is hereby promoted as Sub Inspector in the office of Assistant Registrar, Cooperative Societies, U.T., Chandigarh in the pay scale of Rs. 450-15-525/15-600/20-700/25- 800 with immediate effect.” 4. It has been claimed by the petitioner that in the said order instead of the word ‘appointment’, the word ‘promotion’ has been wrongly been used by the office of respondent No. 2. In pursuance to the said order he joined the post of Sub Inspector/Inspector Grade-II in the pay scale of Rs. 450-800. Subsequently, he also qualified Higher Diploma in Cooperation from National Council for Cooperative Training, New Delhi (A-4). 5. In 1999, a complaint allegedly sent by one S. Nirmal Singh, V&PO Manimajra, U.T. Chandigarh was received in the office of respondent No. 2 levelling allegation that the petitioner has been illegally promoted as Inspector in the respondent Department. He could only be promoted from the post of Peon to that of LDC (Lower Division Clerk). It was also alleged that the petitioner is indulging in corruption and has taken bribe. The complainant sought his reversion (A-5). Taking action, respondent No. 2 sent a letter at the address given in the complaint asking the complainant to file an affidavit in support of the complaint. However, the said letter was not responded, rather the postal authorities returned the same with the remarks ‘Incomplete Address Return to Sender for full address with H. No. and Parantage’. On 11.8.1999, the Joint Registrar, Cooperative Societies, U.T. Chandigarh, informed the 3 CWP No. 2173 of 2009 Secretary Cooperation, Chandigarh Administration, that it was decided to file the complaint. It was further informed that the petitioner was not promoted from the post of Peon but he was appointed as Sub Inspector (G) against a vacancy reserved for members of Scheduled Caste. He possessed the requisite qualification and his appointment was made in relaxation of the Rules (A-6). 6. It has been claimed that due to some vested interests, the matter again cropped up and the Registrar-respondent No. 2 issued a show cause notice dated 12.11.2003 to the petitioner mentioning that he was wrongly promoted to the post of Sub Inspector without following the prescribed procedure and the Chandigarh Administration has decided to revert him to his original post of Peon. He was directed to give reply within 30 days (A-7). On 19.12.2003, the petitioner submitted his reply to the show cause notice. After referring the provisions of the Rules, communication dated 11.8.1999 and the legal position the petitioner stated that he was not promoted but was appointed to the post of Sub Inspector/Inspector Grade-II and could not have been reverted (A-8). On 28.6.2004, the Registrar-respondent No. 2 passed the reversion order of the petitioner reverting him to his original post of Peon with immediate effect by observing that the reply submitted by him was found un-satisfactory (A-1). 7. Feeling aggrieved the petitioner filed OA No. 630/CH/2004 before the Tribunal challenging order dated 28.6.2004. The Tribunal stayed operation of the order dated 28.6.2004 and the petitioner continued as such on the post of Inspector Grade-II till the date of his superannuation i.e. 31.8.2005. He was retired vide order dated 30.8.2005 (RA-1) passed by the Registrar-respondent No. 2, which states that “Sh. Iqbal Singh, Inspector G-II (G), Cooperative Societies, U.T., Chandigarh, is hereby retired from service on attaining the age of superannuation w.e.f. 31.08.2005.” The Tribunal rejected the OA filed by 4 CWP No. 2173 of 2009 the petitioner vide order dated 30.9.2005 (P-4) by observing as under:- “ A mere perusal of the aforesaid order would show that it was, in fact, a promotion order and not an appointment order, as is issued to a direct recruit. Applicant, who was at the relevant time, holding the post of Peon, could be promoted only as Clerk or to any other analogous grade. But not to the higher post of Sub Inspector. He does not fall in the second mode of recruitment i.e by way of selection from Sub Inspectors employed by the Punjab Cooperative Union, either. In fact, Rules do not provide for ‘promotion’ a mode of appointment as Sub Inspectors. The very holding of DPC meeting, in this case, per se, was de hors the Rules and any appointment mode based on recommendation of such DPC would not be sustainable in law. ……… For the foregoing above, the OA, held to be devoid of merit, is disallowed, except for that no recovery shall be effected from the applicant in respect of the excess payment made to the applicant.” 8. Thereafter, the petitioner filed Review Application No. 40 of 2005 before the Tribunal, which was also rejected by the Tribunal, vide order dated 22.8.2007 (P-7). 9. We have heard learned counsel for the petitioner and have also perused the paper book. It is conceded on facts that the petitioner has not committed any fraud nor he has misrepresented to any authority. He had duly applied for the post of Sub-Inspector on 24.7.1986 (P-1) for direct recruitment while he was working as a Peon. The petitioner belongs to Scheduled Caste category. The post of Sub Inspector is governed by the statutory ‘Rules’. The amendment made on 14.7.1960 shows that the ‘Method of Recruitment’ is 5 CWP No. 2173 of 2009 provided by Part-II Executive. Rule 1 reads thus:- “1. METHOD OF RECRUITMENT. (i) Inspector of Cooperative Societies may be recruited either:- (a) Direct or (b) by selection from Sub-Inspectors employed by the Punjab Cooperative Union or from Sub Inspectors of Cooperative Industrial Societies. (ii) Sub Inspectors of Cooperative Industrial Societies may be recruited either:- (a) Direct or (b) By selection from Sub Inspectors employed by the Punjab Cooperative Union. Provided that the Registrar may in special circumstances to be recorded in writing appoint as Inspector or Sub Inspector, Cooperative Industrial Societies any person already employed in the Cooperative Department and when any vacancy occurs or is about to occur among Inspectors or Sub Inspector of Cooperative Industrial Societies the Registrar shall determine in what manner such vacancy shall be filled.” 10. The qualification contemplated by the ‘Rules’ is Matriculation, which the petitioner possessed. It has also come on record that no person belonging to Scheduled Caste was available to fill up the vacancy of Sub Inspector. Accordingly, the Departmental Promotion Committee made its recommendation and gave appointment by promoting the petitioner as Sub Inspector Grade-II. Such a situation is envisaged by the proviso. Moreover, even if there is some irregularity that is deemed to be relaxed under Rule 13, 6 CWP No. 2173 of 2009 which provides as under:- “13. “Power to Relax – Where the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.” 11. A perusal of Rule 13 would reveal that where the Government is satisfied of any undue hardship of any rule then it could dispense with or relax the requirement of such rule to deal with a particular case in a just and equitable manner. It is now well settled that wherever appointment by promotion has been made and the power to relaxation is available, then such an incumbent is deemed to be appointed in relaxation of the rules in case he does not fulfill any necessary qualification. In that regard, reliance may be placed on the judgment of Hon’ble the Supreme Court in the case of Narender Chadha v. Union of India, (1986) 2 SCC 157. Therefore, the petitioner is deemed to have been appointed under the proviso in relaxation of rules. 12. On merit also we are of the view that the petitioner was given appointment on promotion on 14.4.1987 and reversion order was passed on 28.6.2004 after a period of 17 years. He filed Original Application before the Tribunal and his reversion was stayed on 28.6.2004. He continued working on the post of Sub Inspector (Inspector Grade-II) till his superannuation on 31.8.2005. The Original Application has been decided by the Tribunal on 30.9.2005 and review was dismissed on 22.8.2007. It was in some what similar circumstances that Hon’ble the Supreme Court in the case of M.A. Hameed v. State of A.P., (2001) 9 SCC 261, has held that reversion in such circumstances 7 CWP No. 2173 of 2009 is wholly unjustified. The relevant observation of Hon’ble the Supreme Court reads thus: “……We are of the view that the reversion of the appellant after he held the higher post for more than a decade was wholly unjustified. If his appointment was temporary or irregular in any manner he should have been reverted within a reasonable period. Even after the reversion order was passed the appellant continued to hold the post till 1985 under the stay order granted by the Tribunal. We are, therefore, of the view that the reversion of the appellant from the post of District Inspector of Local Funds (Accounts) after a period of 11 years has done more harm than good. We, therefore, allow the appeal and set aside the order of reversion. …….” 13. As a sequel to the above discussion, the instant petition succeeds. The order of the Tribunal dated 30.9.2005 (P-4) and the review order dated 22.8.2007 (P-7) are hereby set aside. We also quash the reversion order dated 28.6.2004 (A-1). (M.M. KUMAR) JUDGE (AJAY TEWARI) February 20, 2010 JUDGE Pkapoor 8