IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No. 1355 of 2011 (O&M) Date of Decision: August 8, 2011 Municipal Corporation, Chandigarh and another …Appellants Versus Raj Kumar …Respondents CORAM: CORAM: CORAM: CORAM: HON'BLE MR. JUSTICE M.M KUMAR HON'BLE MR. JUSTICE M.M KUMAR HON'BLE MR. JUSTICE M.M KUMAR HON'BLE MR. JUSTICE M.M KUMAR HON'BLE MR. JUSTI HON'BLE MR. JUSTI HON'BLE MR. JUSTI HON'BLE MR. JUSTICE GURDEV SINGH CE GURDEV SINGH CE GURDEV SINGH CE GURDEV SINGH Present: Ms. Ashima Mor, Advocate, for the appellant. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the digest? M.M KUMAR, J. M.M KUMAR, J. M.M KUMAR, J. M.M KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against the order dated 18.1.2011 rendered by the learned Single Judge quashing the decision of the Departmental Promotion Committee, dated 26.6.2007 and subsequent communication dated 6.9.2007 (P-1). The learned Single Judge has allowed the claim made by the petitioner-respondent for regularisation of his services w.e.f. 11.7.2007, when his junior, namely, Shri Rama Shankar, was regularized, along with all consequential benefits. 2. The undisputed facts are that the petitioner-respondent has been working as Cleaner w.e.f. 2.11.1981 in the Engineering Department of Chandigarh Administration on daily wage basis. On LPA LPA LPA LPA No. 1355 of 2011 (O&M) No. 1355 of 2011 (O&M) No. 1355 of 2011 (O&M) No. 1355 of 2011 (O&M) 2 2 26.12.1984, he was brought on work-charge establishment (P-2). The name of the petitioner-respondent figured at Sr. No. 5 of the seniority list of the work-charge Truck Cleaners above one Shri Rama Shanker, who was also employed as a Cleaner on daily wage basis w.e.f. 21.11.1981 and was brought on the work-charge establishment w.e.f. 26.12.1984 (P-3). In the year 1996, their services were transferred to the Municipal Corporation, Chandigarh. A Departmental Promotion Committee (DPC) was constituted by the Municipal Corporation to consider the claim of the work-charge Truck Cleaners for regularisation of their services. On 26.6.2007, the DPC rejected the claim of the petitioner-respondent on the ground that he did not fulfill the criteria of qualification of Middle pass as laid down in the ‘Draft Service Rules’. The said decision was communicated to the petitioner-respondent vide communication dated 6.9.2007 in response to a demand justice notice sent by him through his counsel (P-1). 3. Learned Single Judge has taken into consideration some material facts while directing the appellants to stop discrimination with the writ petitioner-respondent as a truck cleaner. The Writ petitioner-respondent had rendered 26 years of service but a person junior to him, namely, Shri Rama Shankar has been regularised whereas the services of writ petitioner-respondent were kept as work-charged Truck Cleaner. The main reason given is that under the Draft Service Rules, he did not fulfill qualification of middle pass. According to the learned Single Judge, Draft Service Rules are no Rules nor those Rules have been adopted by the appellant-Municipal Corporation. Therefore, the DPC which LPA LPA LPA LPA No. 1355 of 2011 (O&M) No. 1355 of 2011 (O&M) No. 1355 of 2011 (O&M) No. 1355 of 2011 (O&M) 3 3 considered the case of the writ petitioner-respondent and non- suited him for want of middle pass education qualification has been found to have misdirected itself. Accordingly, the learned Single Judge issued direction that he shall be regularised w.e.f 11.7.2007 when the person junior to him has been regularised. 4. We have heard learned counsel for the appellants. There is no escape from the conclusion recorded by the learned Single Judge. There are no Rules prescribing qualifications of middle pass for appointment to the post of Truck Cleaner. The draft rules would not govern the rights of the parties because draft rules are ‘no rules’ unless it is proved that such ‘Rules’ have been earlier followed. It is true that regularisation as a mode of entry into public service has been rejected by the Constitution Bench in the case of Secretary, State of Karnataka Secretary, State of Karnataka Secretary, State of Karnataka Secretary, State of Karnataka v. v. v. v. Uma Devi Uma Devi Uma Devi Uma Devi, (2006) 4 SCC 1 , (2006) 4 SCC 1 , (2006) 4 SCC 1 , (2006) 4 SCC 1, yet exception has been created in favour of irregular appointments where service for a period of more than 10 years’ has been rendered by an employee. Therefore, regularisation would not suffer from any illegality. We find no merit in the appeal which may warrant its admission. Dismissed. (M.M KUMAR) (M.M KUMAR) (M.M KUMAR) (M.M KUMAR) JUDGE JUDGE JUDGE JUDGE (GURDEV SINGH) (GURDEV SINGH) (GURDEV SINGH) (GURDEV SINGH) August 8, 2 August 8, 2 August 8, 2 August 8, 201 01 01 011 1 1 1 JUDGE JUDGE JUDGE JUDGE ritu/Pkapoor