L.P.A. No. 233 of 2008 {1} In the High Court of Punjab and Haryana at Chandigarh L.P.A. No. 233 of 2008 Date of Decision: May 12, 2011 The Punjab Urban Planning and Development Authority ---Appellant versus Raj Kumar Garg ---Respondent Coram: HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr. D.V.Sharma, Senior Advocate, with Ms. Shivani Sharma, Advocate, for the appellant Mr. Vipin Mahajan, Advocate, for the respondent *** 1. To be referred to the Reporter or not? 2. Whether the judgment should be reported in the Digest? GURDEV SINGH, J. 1. This Appeal under Clause X of the Letters Patent has been preferred against the judgment dated 28.5.2008 passed by the learned Single Judge, vide which Civil Writ Petition No. 18791 of 2005, filed by Raj Kumar Garg, respondent-writ petitioner, was allowed and the order dated 7.4.2005(Annexure P-14) was quashed to the extent that the petitioner has been denied the benefit of Agenda Item No. 53.25 for the purposes of promotion from 7.4.1983. 2. The petitioner initially joined as Clerk in the Office of D.P.I (Schools), Punjab, on 27.7.1976 where he served up to L.P.A. No. 233 of 2008 {2} 8.9.1977. Thereafter, he was appointed as Clerk in Punjab Water Supply and Sewerage Board on regular basis on 3.4.1979 and worked there upto 8.4.1983. In March, 1983, he applied for the post of Clerk in the Punjab Urban Planning and Development Authority (PUDA) through proper channel. After he was found suitable for the post of the Clerk, letter of appointment dated 25.3.1983 was issued and he joined PUDA on 11.4.1983. A circular letter dated 9.9.1994 was issued inviting applications from all the employees, who joined PUDA between 7.10.1980 to 10.4.1986 and who, prior to that joining, had worked on the same post in some other Department/ Board/ Corporation/Public Undertaking, for giving them the benefit of their past service, in view of the decision taken, vide Agenda Item No. 53.25, by the Board in its meeting held on 7.10.1980. 3. In pursuance of the said circular, the petitioner-respondent submitted an application dated 12.9.1994, along with documentary evidence indicating his past service as Clerk in the previous department. One employee; namely, Tara Singh, who joined PUDA as Clerk on 20.4.1979, in pursuance of the appointment letter dated 16.4.1979, was given the benefit of his past service and was promoted as an Assistant on the basis of the Agenda Item No. 53.25. But the petitioner-respondent did not receive any response to his application and, as such, he served a notice dated 14.2.2002, with the request to grant him the benefit of his past service. After the L.P.A. No. 233 of 2008 {3} authorities failed to take any action, he approached this Court by way of Civil Writ Petition No. 12968 of 2002 for directing PUDA to give him the benefit of the past service for promotion, in view of Agenda Item No. 53.25, as was allowed to similarly situated employee; namely, Tara Singh. That writ petition was decided by a Division Bench on 19.8.2002 and the PUDA was directed to pass a speaking order on the said legal notice within four months. The PUDA passed an order dated 5.12.2002, issued vide endorsement dated 9.12.2002, rejecting his claim for grant of benefit of the past service. Thereafter, he challenged that order by filing Civil Writ Petition No. 133 of 2003. This Court while disposing of that writ petition quashed the order dated 9.12.2002 with the direction to PUDA to give him the benefit of his past service in view of Agenda Item No. 53.25. Against that order, PUDA filed S.L.P.No. 3092 of 2004 before Hon’ble the Supreme Court taking up the plea that Agenda Item No. 53.25 had been modified, vide Agenda Item No. 79.20 dated 10.4.1986. However, the SLP was also dismissed, vide order dated 13.1.2005. In view of the fact that, the order passed by this Court was not implemented, he filed COCP No. 269 of 2005. It was during the pendency of the contempt petition, that PUDA passed an order dated 7.4.2005 wrongly mentioning that he has been given the benefit of Agenda Item No. 53.25. He was entitled to promotion as Senior Assistant without qualifying the departmental test in view of the said L.P.A. No. 233 of 2008 {4} Agenda Item as has been done in the case of Tara Singh. 4. The petitioner-respondent submitted another representation dated 11.4.2005 stating that he has not been given the requisite benefit. Though, Tripta Sharma and Jaspal Singh were shown as senior to Tara Singh yet Tara Singh was promoted because of his past experience in other departments. After the benefit was given to Tara Singh, he could not have been grouped with Jaspal Singh and Tripta Sharma, who were direct recruits. The petitioner-respondent thus, claimed that once the benefit has been given to Tara Singh, he is also entitled to be promoted as Senior Assistant without passing the Departmental Examination. 5. Before the learned Single Judge, PUDA has not been able to controvert the stand taken by the petitioner-respondent that his case is covered by order passed in CWP No. 133 of 2003 on 14.10.2003. The relevant extract of the observations made by the learned Single Judge reads thus:- “It is, therefore, evident that at the time of joining the petitioner in the Housing Board on 11.4.1983, there was no requirement of conducting the test for promotion to the post of Assistant. This test was introduced w.e.f. 12.4.1984 in accordance with the Punjab State Assistant Grade Examination Rules, 1984. Tara Singh who was similarly situated has been given the benefit of promotion L.P.A. No. 233 of 2008 {5} as Senior Assistant. A reading of the order dated 7.4.2005 (Annexure P.14) would show that the case of the petitioner has been grouped with Jaspal Singh and Ms. Tripta Sharma. The said employees are direct recruits, and, therefore, they are not entitled to the benefit of Agenda Item No. 53.25. Learned counsel for the respondent has not been able to controvert the stand taken by the petitioner in the writ petition. Rather, he accepts the case of the petitioner and that it is covered by the earlier decision of this Court i.e. the order passed in CWP No. 133 of 2003 on 14.10.2003 (Annexure P-11). In the circumstances, the writ petition is allowed and the order dated 7.4.2005 (Annexure P-14) is quashed to the extent that the petitioner has been denied the benefit of Agenda Item No. 53.25 for the purpose of promotion from 7.4.1983.” 6. We have heard learned counsel for the parties. 7. By referring to the annexures annexed with this appeal, it has been submitted by learned Senior counsel for PUDA that in view of the order passed by this Court in the writ petition filed by the petitioner-respondent, the benefit of past service rendered in the Sewerage Board has been given to him and that on account of change L.P.A. No. 233 of 2008 {6} of policy by the Board, by passing the Resolution, it was incumbent for the petitioner-respondent to pass the Departmental Examination for his promotion as Senior Assistant. He cannot claim the benefit of promotion on the ground that Tara Singh was granted the benefit of Agenda Item No. 53.25, as he was not entitled to promotion at the time when that Agenda Item was passed. As per Agenda Item No. 61.05, he was required to have five years’ service as Clerk to his credit and was also required to pass the departmental test before his promotion as Assistant. He has further submitted that the learned Single Judge erred while granting the same benefit to the petitioner- respondent as was given to Tara Singh though they were not similarly placed. 8. On the other hand, it has been submitted by the learned counsel for the petitioner-respondent that it has been correctly held by the learned Single Judge that in view of the order passed in C.W.P.No. 133 of 2003, the petitioner has to be given not only the benefit of past service rendered by him in the Sewerage Board but also he is entitled for promotion without passing the Departmental Examination, as has been done in the case of Tara Singh. 9. The learned Single Judge passed order under appeal in view of the fact that counsel for PUDA had not been able to controvert the stand taken by the petitioner in the writ petition and rather accepted the case of the petitioner and that the same was L.P.A. No. 233 of 2008 {7} covered by earlier decision of this Court dated 14.10.2003. It was never the case of PUDA before the learned Single Judge that any condition of passing the departmental examination was introduced before passing of the order dated 14.10.2003 or that there were other Clerks(direct recruits) who were senior to the petitioner. It has come on record that the condition for passing the departmental examination was introduced vide the Punjab State Assistant Grade Examination Rules, 1984, which came into effect from 12.4.1984 and that the petitioner had joined PUDA before passing of those Rules and adoption thereof by PUDA. 10. The order dated 14.10.2003 passed in C.W.P.No. 133 of 2003 by the Division Bench of this Court, is most relevant for deciding the controversy between the parties. In that writ petition, the petitioner had prayed for quashing of the order dated 9.12.2002, vide which his claim for the grant of the benefit of past service was rejected and he had approached for a direction to PUDA to grant him the benefit of past service rendered by him in different departments/corporations, in accordance with the Agenda Item No. 53.25 as it had been allowed to similarly situated employees, with consequential benefits. Thus, he had approached not only for the grant of the benefit of past service but also for the consequential benefits; which obviously included the benefit of promotion, if any. While disposing of that writ petition, it has been held by the Division L.P.A. No. 233 of 2008 {8} Bench that the petitioner in that case would be entitled to the grant of benefit of past service in view of the decision, vide Agenda Item No. 53.25 dated 7.10.1980 and that he would also be entitled to all the consequential benefits and PUDA was allowed four months time for implementing that order. 11. The benefit already available to the respondent-writ petitioner could not have been taken away by PUDA by passing of Resolution by the Board, after the passing of that order. The question to be decided is whether he was entitled to be promoted as Assistant, as was done in the case of Tara Singh, without his having passed the Departmental Examination (which was not a condition in Agenda Item No. 53.25), at the time that order was passed. 12. Admittedly, he had already rendered service in the Sewerage Board and that past service was ordered to be counted. He joined that Sewerage Board on 3.4.1979 and thus, he is deemed to be in service of PUDA since that date. As per Agenda Item No. 53.25, he was required to have served in the Board/PUDA for three years to be considered for the purposes of promotion. He had already completed that period of three years before 14.10.1983 and, as such, he had become entitled to promotion as Assistant and he could not have been deprived of that benefit by having resort to the Resolutions and Rules passed subsequently. 13. The order passed by the learned Single Judge does not L.P.A. No. 233 of 2008 {9} suffer from any error or infirmity. There is, thus, no merit in this appeal and the same is hereby dismissed. (M.M.KUMAR) (GURDEV SINGH) JUDGE JUDGE MAY 12, 2011 PARAMJIT