CWP No. 5173 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 5173 of 2011 Date of Decision: July 06, 2011 Chandigarh Administration & others …Petitioners Versus Sabhajit Mishra ...Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Ms. Alka Chatrath, Advocate for the petitioners. Mr. Jagdeep Jaswal, Advocate for the respondent. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant petition under Article 226 of the Constitution filed by Chandigarh Administration and its officers challenges order dated 09.03.2010 (P-4) rendered by the Chandigarh Bench of the Central Administrative Tribunal, Chandigarh (for brevity 'the Tribunal'), holding that the Draft Rules of 2001 cannot be acted upon by the appellants to make promotions till those rules are notified especially in the face of the earlier notified Draft Rules of 1988. The appellants are aggrieved by order dated 07.10.2010 (P-6), accepting Review Application No. 29 of 2010 setting aside the earlier directions CWP No. 5173 of 2011 -2- issued on 09.03.2010 (P-4). In other words, the Tribunal has reviewed its earlier order dated 09.03.2010 and has proceeded to issue direction that the petitioners were under an obligation to consider the application filed by the original applicant-respondent for change of cadre from Chowkidar to Trade Mate against 5% quota created under the New Draft Recruitment Rules of 2001. On the basis of the aforesaid view of the Tribunal, orders dated 06.10.2006 and 09.04.2008 (A-1 & 2), passed by the petitioner were set aside. 2. Few facts would first be necessary for deciding the controversy raised in the instant petition. The original applicant- respondent made a grievance before the Tribunal that he was appointed as Chowkidar on 05.03.1987. He pleaded that the petitioner had framed and notified Draft Recruitment Rules, 1988, governing the terms and conditions of service belonging to Group 'C' and 'D' posts under Electrical Circular, U.T. Chandigarh, which included the post of Trade Mate. It was claimed that there was no provision for promotion/ change / conversion of designation of Chowkidar to the post of Trade Mate, which is filled up 100% by direct recruitment and qualification of middle pass is prescribed. The original applicant-respondent had taken the stand that it had converted certain posts of Chowkidar to that of Trade Mate and his case was recommended by the Executive Engineer, Electrical Division on 25.10.1996. The departmental correspondence would show that Chief Engineer-petitioner No. 2 had written to the Superintending Engineer on 23.05.2001 (A-10) that till such time new Draft Rules CWP No. 5173 of 2011 -3- are notified the department would not be in a position to act in contravention of the old notified rules. The Chief Engineer-petitioner No.2 had rejected the request of the original applicant-respondent for conversion of the post of Chowkidar to that of Trade Mate. 3. In the original application, petitioners have filed written statement asserting that the claim made by the original applicant- respondent was not tenable because under the notified Rules of 1988 the post of Trade Mate is required to be filled up 100% by direct recruitment and qualification prescribed is middle pass. The claim of the original applicant-respondent was based on the Draft Recruitment Rules of 2001, which was at the proposal stage. It is true that in the Draft Rules of 2001, 5% posts of regular Trade Mate were set apart and the same were to be filled up from amongst the Chowkidars. 4. The matter was heard on 09.03.2010, and the original application was dismissed (P-4) by the Tribunal. After dismissal of the application, a Review Application No. 29 of 2010 was filed, which was allowed by the Tribunal on 07.10.2010 by observing as under: “6. We have heard S/Sh. S.K. Bansal and Aseem Rai, learned counsel for the parties and are convinced that our observation in the order sought to be reviewed that 1988 Rules were notified Rules and once notified Rules were in existence, there was no reason of following the Draft Recruitment Rules of 2001. In fact Rules of 1988 are also Draft CWP No. 5173 of 2011 -4- Rules and no notification has been shown or produced before us to prove that they were ever notified. Therefore, there is a factual mistake in our above observation and this is a sufficient ground to review our order dated 9.3.2010. Otherwise also, this court has an inherent power to review its own orders under Section 22(3)(f) read with order 47 Rules 1 CPC. Accordingly, the order dated 9.3.2010 is hereby recalled and we proceed to pass a fresh order as per correct factual position and law. 7. From the facts narrated above, it transpires that the posts of Chowkidar and Trade Mate are both Group 'D' posts carrying the same scale of pay Rs. 750-1350. Some Chowkidars working under the respondents were allowed to change their cadre and switch over to the post of Trade Mate in 1987. Thereafter in 1988 Draft Rules were prepared and the post of Trade Mate was required to be filled up 100% by direct recruitment, meaning thereby that the working Chowkidars could not be appointed as Trade Mate. These were only Draft Rules and not notified ever, as pointed out above. Another set of Draft Rules were prepared in 2001, wherein provision was made for Chowkidars to switch over to the post of Trade Mate to the CWP No. 5173 of 2011 -5- extent of 5% of the posts. On formation of the new Draft Recruitment Rules, applicant made a representation to the respondents for change of his cadre from Chowkidar to Trade Mate. This could be done as in the meanwhile, Chief Engineer issued letter dated 23.05.2001 (Annexure A/10) to the effect that unless new Rules are notified, the Department cannot overrule the Old Rules. Subsequently, request of the applicant has been rejected on the ground that the “same is not covered under the relevant Recruitment Rules at the relevant point of time.” 5. We have heard learned counsel for the parties at a considerable length. 6. It has come on record that the Rules issued in the year 1988 were Draft Rules and have been followed throughout. However, certain amendments were suggested by Chief Engineer vide his letter dated 07.03.2001 to the aforesaid Draft Recruitment Rules concerning work charge regular Group 'C' and 'D' staff. It was proposed to fill up the post of Trade Mate (Electrical) Group 'D' Post 93% by direct recruitment, 5% from Chowkidars posted in the field and 2% from Stores Coolies. As per the suggestion given in the proposed revised Draft Rules of 2001, the qualification required was Matric pass from a recognized institution. It has also remained undisputed that the proposal for revision of Recruitment Rules has CWP No. 5173 of 2011 -6- not been finalised nor they have ever been notified. Even some changes were made while sending the same to the office of Chief Engineer U.T., Chanidgarh on 26.12.2001, whereby the post of Trade Mate (Electrical) is to be filled up 100% by direct recruitment and essential qualification is Matric pass from a recognized Board/ University or equivalent or experience of work in electrical field. The same is evident from the following table, which reads thus: Name of the post Whether selection on the basis of Seniority-cum-merit or merit-cum- seniority. Whether age, educational qualification prescribed for direct recruits will apply in the case of promotees. Method of recruitment, whether in direct recruitment or by promotion or by deputation absorption and percentage of posts to be filled by various methods Trade Mate (Electrical) 120/ Beldar (Electrical -1) Not applicable Not applicable By direct recruitment. 7. The net result is that the notified Draft Recruitment Rules of 1988 still occupied the field and governed the conditions of service of the original applicant-respondent. Therefore, the post of Trade Mate (Electrical) cannot be filled up by giving it to Chowkidar to the extent of 5% as claimed. Even if it is presumed for the sake of argument that the new Draft Rules are required to be followed then there are certain changes made in those Draft Rules abolishing 5% quota of Chowkidar and 2% quota from Sports Coolies. Therefore, we are of the view that order dated 07.10.2010 passed by the Tribunal in the review application is unsustainable in the eyes of CWP No. 5173 of 2011 -7- law and the same is liable to be set aside. Earlier order dated 09.03.2010 passed by the Tribunal deserves to be upheld. Hence, order dated 7.10.2010 (P-6) is set aside and order dated 09.03.2010 (P-4) is restored. 8. Accordingly, the writ petition is allowed in the above terms. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE July 06, 2011 Atul