CWP No. 1253 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CWP No. 1253 of 2010 Date of decision: 18.10.2011 Ishwar Singh Bhardwaj ........ Petitioner Versus State of Haryana and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Shireesh Gupta, Advocate for the petitioner Ms Priyanka Dalal, AAG, Haryana for the respondent - State -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. (Oral) Prayer in the present writ petition is for issuance of direction to the respondents to promote the petitioner, firstly, to the post of Leading Fireman and then to the post of Sub Fire Officer from the date his juniors were promoted as the petitioner has not been given even one promotion since his entry into service on 20.01.1989. The facts, in short as relevant for the dispute in hand, are that the petitioner has successfully completed the course for the posts of Leading Fireman in the year 1998. Thereafter, in the year 2003, he completed the course for the post of Sub Fire Officer. The petitioner was appointed as Fireman on temporary basis by the respondents on 19.01.1989. His services CWP No. 1253 of 2010 2 were regularised by the Deputy Commissioner, Ambala w.e.f. 31.03.1993. However, on 12.05.1994, he was transferred from Ambala District to Sonepat District. The petitioner made numerous representations to the respondents pointing out that he was working on the post of Fireman since 20.01.1989 and therefore, he was entitled to be promoted from the date his juniors have been promoted. However, on 06.11.2008, the Deputy Commissioner, Sonepat, circulated the tentative seniority list for the post of Fireman/Fire Driver in the Sonepat District. The name of the petitioner did not find figure in the said seniority list. The respondents have filed their reply, stating therein, that the petitioner was transferred from Municipal Committee, Ambala to Municipal Committee, Sonepat on 12.05.1994. The seniority is maintained District wise. It was further stated in the said reply that the petitioner was transferred from Ambala to Sonepat at his own request, as such, he loses his seniority maintained in Ambala District. Hence, the seniority of the petitioner will be maintained at Sonepat District as provided under the Rules. The fact that the petitioner was not entitled to any kind of TA/DA meant that he had been transferred from Ambala to Sonepat District on his own request and not by the order of the Government. Heard. From the pleadings as well as the arguments raised by the learned counsel for the parties, the following facts are admitted:- 1) That the seniority is maintained District wise. 2) that the petitioner was initially appointed at Ambala District; 3) that the petitioner was transferred from Ambala District to Sonepat District; and 4) that the name of the petitioner did not find CWP No. 1253 of 2010 3 figure in the seniority list maintained at Sonepat District. 5 It was only as late as on 31.12.2010, the name of the petitioner appeared for the first time in the seniority list maintained at Sonepat District. 6) The transfer order does not say that he loose his seniority at Ambala or that his seniority will be re- fixed in the Sonepat District. The fact that the petitioner was not granted TA/DA, is in itself not sufficient to come to the conclusion that the petitioner was transferred from Ambala to Sonepat District at his own request. In fact, even, the appointment letter and posting at Ambala makes a similar mention that he he will not be paid TA/DA. Thus, it cannot be read to understand that the transfer was on his request. There was nothing to stop the department from taking an undertaking from the petitioner that in case, he was being transferred at his own request from the Ambala to Sonepat District, he shall not claim seniority from District Ambala or at least mention in the order that the transfer is on his request. No application or any document has been placed on record to show that the petitioner requested for his transfer. As per the judgement rendered by this Court in the case of Dharam Pal v. The State of Haryana 1991 (3) SCT 260, in case, the employee who has been transferred to other District on account of administrative reasons, his seniority will be maintained in his parent district and he will be considered at the time of promotion in the parent District. Para 4 of the said judgement reads as under:- “4. Respondent No. 1, in exercise of the power conferred by Sections 38, 39, 41 and clause (m) of sub section (1) of Section 257 of the Haryana Municipal CWP No. 1253 of 2010 4 Act, 1973, framed rules called the Haryana Municipal Services (Integration, Recruitment and Conditions of Service) Rules, 1982. Clause (i) of sub rule (1) of Rule 2 defines 'member' which means a member of the State Level or District Level Service detailed in Appendix A. Clause (b) of sub rule (1) of Rule 2 says that 'Appendix' means an Appendix to the Rules. Rule 3 says that a service shall comprise of posts shown in Appendix A to the Rules. Proviso to rule 3 provides that the Government can make addition to, or reduction in, the number of such posts or to create new posts with different designations and scales of pay, either permanently or temporarily. The post of Fireman is mentioned at Serial No. 56 in the Appendix. Rule 10 lays down the method for filling in the vacancies ini the State Level Services and the District level Services. Posts of Firemen and Leading Firemen fall in District level Services. The inter se seniority of the members of the service has to be fixed under rule 14 of the Rules which says that the inter se seniority of the members of the service shall be determined separately for every category by the length of their continuous service on a post in the said category. Proviso to this Rule says that in case of members appointed by direct recruitment, their inter se seniority shall be in the order of merit determined by the Commission, Board or any other authority as the case may be and that in the case of two or more members appointed on the same date, a member appointed by direct recruitment shall be senior to a member appointed otherwise. Rule 14 is silent as to how the seniority is to be fixed when the Services of a member of the District Level Service are transferred to another district. To fill the gap in the statutory rules, CWP No. 1253 of 2010 5 respondent No. 2 vide memo No. 1622- DLB/FA/87/50323-34, directions:- “(a) The employees who will be transferred on their own request will be losing their seniority of their parent Districts and their seniority will be counted in the District where they have been transferred from the date of their joining there. (b) Those employees of the District Level Service who have been transferred/will be transferred to other district on account of administrative reasons/public interest, their seniority will be kept in their parent district and they will be considered at the time of promotion in the parent district.” In the case of an employee who has been transferred to other district on account of administrative reasons, his seniority will be kept in his parent district and he will be considered at the time of promotion in the parent district.” It has already held above that the transfer of the petitioner was under no circumstances on his request. Thus, the settled proposition of law as laid down in the case of Dharam Pal (supra) is applicable in the facts and circumstance of the present case. Accordingly, the present petition is allowed with the direction to the respondents that they shall re-fix the seniority of the petitioner from Ambala District with all consequential benefits. Allowed in the above terms. (Nirmaljit Kaur) Judge 18.10.2011 mohan