IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 1006 of 2005 Date of decision: 2nd July, 2008 Neeraj Sharma and another … Petitioners Versus State of Punjab and another … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. H.S.Sethi, Advocate for the petitioners. Mr. Yatinder Sharma, DAG Punjab for the State. Mr. Rajesh Chaudhary, Advocate for respondent No.2. KANWALJIT SINGH AHLUWALIA, J. Neeraj Sharma son of Kulbhushan Sharma and Balwinder Singh Cheema son of Lachman Singh, employed as Inspectors in Municipal Corporation, Jalandhar, preferred the present writ petition, praying that order dated 28th December, 2004 (Annexure P-13) be quashed. A perusal of the order dated 28th December, 2004 (Annexure P-13) reveals that petitioners (who claim themselves to be Building Inspectors posted at Jalandhar), who were suspended and were facing an inquiry and were reinstated during the pendency of the departmental inquiry and were ordered to be posted as Senior Assistant in Municipal Corporation, Bhatinda. Civil Writ Petition No. 1006 of 2005 Primary grievance projected by the petitioners is that they are in the cadre of Building Inspector, therefore, they could not be posted as Senior Assistant because the cadre of Senior Assistant/ Inspectors and Senior Scale Stenographers is distinct and is not interchangeable. Irony of the situation is that each person posted as Senior Assistant or Inspector vie to be posted as Building Inspector in the provincialised cadre of Municipal Corporation service as a number of vacancies of Building Inspectors (Technical) are lying vacant. Melody, which Municipal Corporations are facing is pull and precious on part of everybody to be posted as Building Inspector, which does not only promote corruption but transparency has also become casualty. The present writ petition depict a will, which ought to be cured by giving a direction to the respondent No.1 to fill, with immediate effect, all sanctioned posts of Building Inspectors (Technical). It will be pertinent to mention here that out of 46 cadre posts of Building Inspectors (Technical), only 3 posts have been filled and 43 sanctioned posts are lying vacant. Therefore, Senior Assistants and Inspectors are being posted against the post of Building Inspectors (Technical). To grapple with this situation, a cordial Bench of this Court, on November 30, 2007 passed the following order: “Present:- Mr.H.S.Sethi, Advocate. Mr.Salil Sagar, Addl. AG Punjab Mr.Mukesh Kumar Bhatnagar, Advocat. *** The question raised in the petition is whether person posted as Building Inspector/ Inspectors can be posted as Senior Assistants when two cadres are different. There appears to be aspiration of more and more employees for the post of Building Inspectors, for whatever reasons. Such being the position, it is requisite that an appropriate policy or guideline is framed by the concerned 2 Civil Writ Petition No. 1006 of 2005 respondents to minimize discretion in the matter of such posting and to check any manipulation or malpractice. It has been submitted that no such policy being there, such postings are made at whims and fancies and a person may be posted as Building Inspector or as Senior Assistant merely on the plea that the pay scale is same and the seniority is same, as stated by learned counsel for the State. Learned counsel for the State seeks time to examine the matter. Let the matter be looked into and an affidavit filed by an officer of the rank of Secretary of the Government of Punjab. Adjourned to 18.1.2008. (Adarsh Kumar Goel) Judge (Ajai Lamba) Judge” Punjab Service of Corporation Inspectors and Punjab Service of Corporation Assistants prescribe following qualification and eligibility as per Punjab Municipal Corporation Services (Recruitment & Conditions of Service) Rules, 1978 (hereinafter called the ‘rules’): 24.Punjab Service of Corporation Inspectors Should atleast be a Second Class Graduate. Preference will be given to Graduate with Diploma Local Government. Should be a Clerk, in Municipal Corporation with an experience of working as such for a minimum period of five years. 25.Punjab Service of Corporation Assistants Should atleast be a Second Class Graduate. Preference will be given to Graduate with Diploma in Local Government. Should be a Clerk in Municipal Corporation with an experience of working as such for a minimum period of five years. Corporation Inspectors, Corporation Assistants and Corporation Senior Scale Stenographers constitute feeder cadre to the post of Punjab Service of Corporation Superintendents (Grade II), which contain the following qualification and eligibility: 3 Civil Writ Petition No. 1006 of 2005 4. Punjab Service of Corporation Superintendents Grade II. Should at least be a Second Class Graduate from a recognized university with an experience of a minimum period of 5 years as an Assistant/ Inspector or Senior Scale Stenographer in a Municipal Corporation or department of Govt. Should be an Assistant or Inspector or Stenographer with an experience of working on any one or more of these posts for a minimum period of 10 years. Whereas, the post of Building Inspector (Technical) requires following qualification and experience: “‘Three years diploma Course in Civil Engineering’ whereas ‘Municipal Corporation employee working in the Town Planning wing and having passed three years diploma course in Civil Engineering’ is the requisite eligibility for appointment by way of promotion.” Having spelt out the central theme of the case, now we advert to the facts of the case. Petitioners have pleaded that they were working as Building Inspectors in the Municipal Corporation, Jalandhar (according to respondents, use of term ‘Building Inspector’ is a misnomer, as petitioners were posted as Inspectors). Petitioners have pleaded that as Building Inspectors, their duty was to check unauthorized construction, which is done against the sanctioned building plan or without the sanctioned building plan. They were further required to check no objection certificate. Their duty also included to report violation of municipal bye laws by any owner of building or land. They have further stated that notices under Section 269 and 270 of the Punjab Municipal Act, 1976 (hereinafter called the ‘Act’) are to be given by 4 Civil Writ Petition No. 1006 of 2005 the Assistant Town Planner, who is their immediate higher authority, whereas demolition orders are to be passed by Municipal Commissioner. They have stated that their duties ought to have been to look into unauthorized construction and reporting the matter to higher authorities for taking appropriate action, upon which notices under Section 269 and 270 of the Act and orders of demolition are issued by their superiors. It has been further stated that they were suspended on 1st October, 2004 along with other two Building Inspectors. Petitioners are also aggrieved by the impugned order, wherein a direction has been given to Commissioner, Municipal Corporation, Bathinda that the petitioners should not be posted in field for a period of five years. Petitioner No.2 pleaded that in year 2002 he was posted as Building Inspector and one Subhash Chander was carrying construction in a building owned by him in Adarsh Nagar, Jalandhar. Petitioner No.2 had sent him a notice under Section 270 on 27th December, 2002. Thereafter, the owner of the building had not stopped the construction and notice under Section 269 of the Act was also issued. It is further stated that in view of the notices, the owner of the building gave in writing on 23rd January, 2003 that he is ready to get the violation compounded. Whereas, this contention of the petitioner was repelled by the respondent No.2, Municipal Commissioner, Jalandhar and he has stated as under: “5. That the para no.5 of the petition is admitted to the extent that it is matter of record. However, it is submitted that the petitioner No. 2 was in the knowledge of fact that the commercial construction was being done in residential area and for this reason, the application given by the owner for compounding of unauthorized commercial construction dated 23.01.2003 Annexure P/2 was a malafide attempt to delay or scuttle the action of demolition of unauthorized building which was otherwise due on 31.12.2002 i.e. after three days of the 5 Civil Writ Petition No. 1006 of 2005 issuance of show cause notice dated 27.12.2002. Surprisingly and shockingly, the illegal construction continued even after issuance of show cause notice dated 27.12.2002, Petitioner No.2 knew that the violations being committed by illegal constructor were not compoundable, hence application/ representation about compounding/ compromising the illegal construction should not have been entertained even.” Petitioner No.1 has pleaded that one Jagdish Arora, resident of H.No.501, New Jawahar Nagar, Jalandhar was constructing the building. Petitioner No.1 came to know that building was constructed against the sanctioned plan and he informed the Assistant Town Planner to this effect on 30.01.2004. He further stated that petitioner got notices issued to the owner of the building with regard to construction of basement as well as deviation from the sanctioned plan. We need not go into the conduct of petitioner No.1 as the same is subject matter of inquiry. The whole edifice is built out, that petitioners being posted as Building Inspectors cannot be posted as Senior Assistants at Municipal Corporation, Bathinda. In para 23, petitioners have assailed the action of respondents. The relevant portions are reproduced below to highlight the grievance of the petitioners: “Once the petitioners are working as Building Inspectors they cannot be transferred as Senior Assistants and that too at a far off place. Therefore, transferring the petitioners as Senior Assistants to the Municipal Corporation, Bathinda is totally arbitrary and illegal as the cadre of the petitioners has been changed and therefore, the impugned order is liable to be set aside on this ground alone;” “That further a bare reading of the impugned order dated 28.12.2004 shows that the petitioners have been transferred by way of punishment. Rather it has been 6 Civil Writ Petition No. 1006 of 2005 mentioned in the order that the petitioners should not be given the duties of the Building Inspectors for a period of five years;” Petitioners also stated that earlier, for similar allegations, two Building Inspectors namely Kamaljit Singh and Ajit Kumar Sharma were suspended and were reinstated, whereas the petitioners are being distinctly treated. Respondent No.1 in its reply stated as under: “It may also be stated here that there is no cadre of building inspector in the Municipal Corporation Services and that there is a cadre of “Building Inspector (Technical)” and for appointment on this post different set of qualification and experience has been prescribed. On the other hand, the petitioners were appointed in the cadre of Inspector/ Senior Assistant and that the Commissioner; Municipal Corporation, Jalandhar as an local arrangement, has asked the petitioners to discharge the duties of Building Inspector. It may also be clarified here that there is a common seniority list of the cadre of Inspector/ Assistant and Senior Scale Stenographer because all these posts are the prescribed feeder cadre posts for promotion and appointment as Superintendent Grade-II. On the other hand, incumbents appointed as Building Inspector (Technical) are not eligible for promotion as Superintendent Grade-II and they have their own channel of promotion on the post of Planning Officer. As such, the petitioner were rightly posted as Senior Assistant in Municipal Corporation, Bathinda after they were reinstated in service subject to final outcome of the pending departmental proceedings and that the petitioners have not been discriminated upon, as alleged.” In pursuance of order passed by a cordial Bench of this Court in the present writ petition on November 30, 2007, reproduced above, Mr.Bhagwant Singh, IAS, Special Secretary to Govt. Punjab, Department of 7 Civil Writ Petition No. 1006 of 2005 Local Government, Punjab Chandigarh had filed an affidavit, in which it has been stated as under: “Government, in exercise of powers conferred under Section 71(1) of Punjab Municipal Corporation Act, 1976 vide notification dated 07.05.1993 had constituted the three different services of Inspector, Senior Assistant and Senior Scale Stenographer. The pay scale of all these three services is the same. However, the sanctioned cadre strength of the posts of Inspector, Senior Assistant and Senior Scale Stenographer is 318, 43 and 22 respectively and all these services are different and distinct. The next promotional post of Inspector, Senior Assistant and Senior Scale Stenographer in the hierarchy of services in Municipal Corporation Services is that of Superintendent Grade-II. Though the services of Inspector and Senior Assistant are different and distinct and there is no provision in the service rules for interse posting yet in the interest of administration, interse postings have been made, may be that there pay scale and promotional post is the same. It is pertinent to submit here that despite the fact that Senior Assistant and Inspector both belongs to ministerial cadre, the only difference is that Senior Assistant perform his duties while sitting in the office whereas Inspector cadre employees perform the field duties. It is clarified here that the post of Senior Assistant and Inspector as per the provisions of Punjab Service of Corporation Inspector, Punjab Service of Corporation Assistant and Punjab Service of Corporation Senior Scale Stenographer constituted vide Notification No. 2/34/93-6LG1/4418, dated 7.5.1993 are equivalent promotional posts and are filled from the cadre of Clerks/Junior Assistants which constitutes its feeder cadre having common seniority (Copy of the Notification attached as Annexure R-1/1). That no service of “Building Inspector” has been constituted by the Government. It is pertinent to add that with an object of ensuring the planned growth of the big towns of State, Government had constituted Town Planning wing in al the Municipal Corporations in the year 1997 (Annexure R- 8 Civil Writ Petition No. 1006 of 2005 1/2). Thereafter different services in this wing, as per requirement, were also constituted and posts in each service were also sanctioned. In the process, the service of Building Inspector (Technical) was also constituted. The sanctioned strength of this cadre is 46, but only 3 posts have been filed up and 43 sanctioned posts are lying vacant. The necessary qualification and experience for direct recruitment on this post, as provided in the Punjab Municipal Corporation Services (Recruitment and conditions of Services) Rules, 1978 is ‘Three years diploma Course in Civil Engineering’ whereas ‘Municipal Corporation employee working in the Town Planning wing and having passed three years diploma course in Civil Engineering’ is the requisite eligibility for appointment by way of promotion. That prior to the constitution of service of Building Inspector (Technical) in the Town Planning wing of Municipal Corporations in the year 1997, there was only cadre of ''Inspector'', which was constituted on 07.05.1993 and employees of this service used to be also posted in the Building branch. Resultantly, the employees belonging to the cadre of Inspector, on posting in the Building branch, were used to write themselves as ''Building Inspector''. It may be clarified here that the word Building Inspector used by the Senior Assistant/ Inspector, when posted in Building Branch is a misnomer and self styled one, having no legal or administrative sanction and to check this, the Government has issued policy instructions dated 30.10.2006 (Copy of policy instructions are attached as Annexure R-1/3) thereby directing the Commissioners, Municipal Corporations to direct all Inspectors posted in Building branch to desist from writing themselves as ''Building Inspector''. It is also relevant to submit here that as large number of posts of Building Inspector (Technical) are lying vacant, therefore, as an adhoc measure, employees from the services of Inspector and Senior Assistant have been posted in the Building Branch to perform the duties of Inspector.” 9 Civil Writ Petition No. 1006 of 2005 We have perused the pleadings and heard the counsel for the parties. There is no doubt in our mind that there is a distinct cadre of Corporation Assistants, Corporation Inspectors and Corporation Senior Scale Stenographers. Corporation Assistants and Corporation Inspectors are promoted from one feeder cadre of Clerk/ Junior Assistants and they in themselves along with Corporation Senior Scale Stenographers, constitute feeder cadre to the post of Corporation Superintendents (Grade II). We are unable to accept the arrangement followed by the respondents to post Corporation Inspectors and Corporation Assistants on each others place in the interest of administration as averred in the affidavit filed on 4th April, 2008. We are equally concerned that because 43 posts of Building Inspectors (Technical) have not been filled, Corporation Assistants and Corporation Inspectors at whim and fancy, have been arbitrarily posted as Building Inspectors (Technical). Simply because the pay scale of Inspector, Senior Assistant and Senior Scale Stenographer is same and they constitute feeder cadre to the Superintendent (Grade II), they cannot be posted interchangeably. We also depreciate conduct of the respondents not to fill the large number of 43 posts of Building Inspectors (Technical) and to post Inspectors and Senior Assistants in the Building Branch to perform the duties of Building Inspector (Technical). Corporation Assistant and Corporation Inspectors lack necessary qualification of Building Inspector (Technical), which is three years diploma course in Civil Engineering. We also cannot accept absolute discretion in the hands of authorities to post Corporation Assistants and Corporation Inspectors, according to their own will, without any due consideration, as Building Inspectors (Technical). Therefore, it has become necessary that immediate corrective remedial measures are taken. Therefore, we direct respondent No.1 to fill 10 Civil Writ Petition No. 1006 of 2005 all the vacant posts of Building Inspectors (Technical) strictly in accordance with the qualification prescribed within next six months. Once all posts of Building Inspectors (Technical) are filled up, no Corporation Assistant and Corporation Inspector will be posted in place of Building Inspector (Technical). Furthermore, no Corporation Assistant or Corporation Inspector will be posted against each others place as they constitute distinct cadre. Therefore, we quash the impugned order (Annexure P-13) as petitioners being Corporation Inspectors cannot be posted as Corporation Assistants. However, respondent is directed to conclude the inquiry against the petitioners within six months from today and it will be open for the respondents to post petitioners for Corporation Inspectors anywhere in any Corporation including at Bathinda. With these observations, present writ petition is disposed off. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE July 2, 2008 rps 11