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HARBHAJAN SINGH versus UNION OF INDIA & ORS

High Court of Punjab and Haryana, Chandigarh

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Harbhajan Singh v. Union of India & Ors - CWP-14175-cat-2001 [2006] RD-P&H 2147 (30 March 2006)

CWP NO.14175-CAT OF 2001 1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

CWP NO.14175-CAT OF 2001

DATE OF DECISION: 19.4.2006

Harbhajan Singh ....Petitioner

Versus

Union of India and others ....Respondents.

CORAM: HON'BLE MR.JUSTICE J.S. KHEHAR
HON'BLE MR.JUSTICE P.S. PATWALIA

PRESENT: Mr.O.P. Goyal, Sr. Advocate, with Mr. Amit Jaiswal, Advocate

for the petitioner.

Mr. D.R.Sharma, Advocate

for respondent No.6.

J.S. Khehar, J. (oral)

The petitioner was holding the post of Compressor Driver Grade III in the scale of Rs.260-400 (unrevised). Promotion from the post of Compressor Driver Grade III is to the post of Compressor Driver Grade II, in the scale of Rs.1200-1800 (revised). The petitioner alleges that he qualified the trade test prescribed for acquiring eligibility for promotion to the post of Compressor Driver Grade II, and thereupon, was actually promoted to the post of Compressor Driver Grade II on 26.4.1988.

The post of Compressor Driver Grade II was upgraded to the post of Compressor Driver Grade I with effect from 1.3.1993, as a consequence of restructuring of Groups C and D cadres in terms of the circular letter dated 27.1.1993 issued by the Railway Board (Annexure P7).

CWP NO.14175-CAT OF 2001 2

The petitioner's upgradation from the post of Compressor Driver Grade II to the post of Compressor Driver Grade I, was impugned by respondent No.6, by filing OA No.1218/Pb. Of 1995, before the Central Administrative Tribunal, Chandigarh Bench, Chandigarh. In his claim respondent No.6 asserted, that he was senior to the petitioner as Compressor Driver Grade II, and as such, should have on restructuring of the Group 'C' cadre, been granted redesignation as Compressor Driver Grade I, as a mater of superiority over the petitioner. It was the case of respondent No.6 before the Central Administrative Tribunal, that the petitioner had been granted redesignation as Compressor Driver Grade I, over respondent No.6 by way of reservation, as he belongs to Scheduled Caste category, whereas respondent No.6 was a member of the general category.

Since the issue of seniority in the cadre of Compressor Driver Grade II was not a matter of dispute between the parties, namely, since the petitioner herein, acknowledged that respondent No.6 was senior to him, the Central Administrative Tribunal, while disposing of the Original Application filed by respondent No.6, on 10.8.2001, arrived at the conclusion, that since the reservation policy was inapplicable in case of restructuring envisaged by the circular dated 27.1.1993 the claim of respondent No.6, could not have been superseded by the petitioner. In arriving at the aforesaid conclusion, the Central Administrative Tribunal, relied on an earlier decision rendered by it in Pankaj Saxena, CMI V. Union of India and others (OA No.426/PB/94 decided on 24.7.2001). Finding the controversy raised in Pankaj Saxena's case (supra) to be the same, as the one raised in the Original Application filed by respondent No.6, the Central Administrative Tribunal accepted the prayer made by respondent No.6 and set aside the redesignation of the petitioner as CWP NO.14175-CAT OF 2001 3

Compressor Driver Grade I, consequent upon the restructuring circular letter dated 27.1.1993.

The order passed by the Central Administrative Tribunal in OA No.1218/Pb/95 dated 10.8.2001 is subject matter of challenge at the hands of the petitioner through the instant writ petition.

In sum and substance, the controversy revolves around the circular dated 27.1.1993. Whereas, it is the case of the petitioner that despite the aforesaid circular the petitioner had a superior right of redesignation as Compressor Driver Grade I, on the basis of reservation. It is the case of the petitioner, that since an additional post was created on account of the aforestated restructuring, the petitioner herein was entitled to promotion/redesignation as Compressor Driver Grade I by way of reservation, as a matter of preference over respondent No.6.

In so far as the controversy raised by the petitioner is concerned, the solitary issue that needs to be examined is, whether or not an additional post had arisen consequent upon the restructuring effected by the circular letter dated 27.1.1993. In fact, the plea at the hands of respondent No.6, which was accepted by the Central Administrative Tribunal, was categorically based on the fact that restructuring itself would not invoke the policy of reservation. In such circumstances, it was imperative for the petitioner herein to plead that the restructuring effected through the circular letter dated 27.1.1993 did actually create an additional post beyond the total posts in the cadre, prior to the restructuring, effected by the circular letter dated 27.1.1993. In order to establish that such a plea has been raised by the petitioner before this Court, our pointed attention was invited to the pleadings in paragraph 9 of the writ petition. Paragraph 9 of the writ petition is CWP NO.14175-CAT OF 2001 4

accordingly extracted hereunder:-

" That the case of Pankaj Sood is entirely different to that of the petitioner. The cadre strength in the present case by way of restructuring has been raised to two; whereas the cadre strength in the case of Pankaj Sood is not known. The respondent was facing a major charge sheet which resulted in punishment of 'Censure' which later on was of course cancelled. The cadre strength in the case of Commercial Inspector was certainly more than four. What has been decided is that the service record and confidential reports have only to be considered for their fitness for being placed in the next higher grade. The post of a Commercial Inspector was described as Selection Post and it was to be filled up on the basis of seniority-cum-fitness based on their service record. All these things are not relevant for the decision of the present case.

The facts of the case may be submitted in brief:- i) The petitioner is junior to Respondent No.6.

ii) The petitioner belongs to SC category.

iii)The petitioner has also qualified the trade test in December 1993.

iv)The cadre strength of Compressor Driver Grade I has been raised to two as a result of restructuring which was earlier one prior to 1.3.93.

v) One post was being held by a person of general category.

vi)The representation of SC when the cadre strength is less than 4 or percentage goes below 0.5; the backlog one SC against CWP NO.14175-CAT OF 2001 5

roster point was to be carried forward.

Instructions contained in R1/1 appended to Annexure to Annexure P3 are relevant and applicable to the case of the petitioner."

It is not possible for us to conclude from the aforesaid pleadings that an additional post was actually created, consequent upon the restructuring effected through the circular letter dated 27.1.1993. In fact, what is sought to be stated in paragraph 9 is that the cadre strength of the post of Compressor Driver Grade I was increased consequent upon the aforesaid restructuring.

This plea at the hands of the petitioner is wholly misconceived, as restructuring always envisages addition of posts of one level to another, thereby reducing the posts of one level and increasing them at the another level. The increase of posts referred to in the circular letter dated 27.1.1993 envisages an addition in the total number of post(s) in the cadre in comparison to the posts which were existing before the restructuring. Since there is no pleading whatsoever in the instant case that restructuring under the circular dated 27.1.1993, increased the posts in Group 'C' cadre, we cannot accept the contention of the learned counsel for the petitioner, that the reservation policy would be applicable so far as the upgradation from the post of Compressor Driver Grade II to the post of Compressor Driver Grade I is concerned.

In the aforesaid context, the determination at the hands of the Apex Court in All India Non-SC/ST Employees. Association V. V.K.

Aggarwal and others (Contempt (Civil) No.304 of 1999 in Civil Appeal No.1481 of 1996, decided on 31.1.2001) is clear and categoric. The order passed by the Apex Court on 31.1.2001, which is placed on the record of the CWP NO.14175-CAT OF 2001 6

present pleadings as Annexure R6/1, is being extracted hereunder:- " It appears from all the decisions so far that if as a result of re-classification or re-adjustment there is no additional posts which are created and it is a case of upgradation, then the principle of reservation will not be applicable. It is on this basis that this Court on 19th

November, 1998 had held that reservation for SC & ST is not applicable in the upgradation of existing posts and Civil Appeal No.1481/1999 and the connected matters were decided against the Union of India. The effect of this is that where the total number of posts remained unaltered, though in different scales of pay, as a result of re-grouping and the effect of which may be that some of the employees who were in the scale of pay of Rs.550-750 will go into this higher scales, it would be case of upgradation of posts and not a case of additional vacancy of post being created to which the reservation principle could apply. It is only if in addition to the total number of existing posts some additional posts are created that in respect of those additional posts the reservation policy will apply but with regard to these additional posts the dispute does not arise in the present case. The present case is restricted to all existing employees who were re-distributed into different scales of pay as a result of the said upgradation." It would be pertinent to mention that during the course of arguments, learned counsel for the petitioner vehemently contended that the factum of creation of an additional post was not raised at the hands of respondent No.6 in the Original Application filed by him before the Central CWP NO.14175-CAT OF 2001 7

Administrative Tribunal. This plea was absolutely misconceived. The pleading of respondent No.6 before the Central Administrative Tribunal, that no reservation was conceived of, in so far as the present cadre is concerned, on the basis of the circular letter dated 27.1.1993. It was for the petitioner, therefore, to raise a plea as a matter of exception to the circular letter dated 27.1.1993 by relying on the judgment of the Apex Court extracted above, so as to support his claim that the reservation policy, to assert that restructuring of the cadre under reference envisaged the creation of additional post(s) on restructuring. Since the written statement, if any, filed by the petitioner before the Central Administrative Tribunal is not before us, we are primarily concerned with the pleadings in the writ petition, where also no such plea has been raised on behalf of the petitioner.

It was also contended on behalf of the petitioner, that respondent No.6 has since retired from service on attaining the age of superannuation, and as an interim order had been passed in favour of the petitioner allowing him to continue as Compressor Driver Grade I, and since the petitioner had uninterruptedly continued to serve as Compressor Driver Grade I ever since his original promotion on 4.1.1994 with effect from 1.3.1993, it would be extremely harsh to require the petitioner to now revert back to the post of Compressor Driver Grade II. It is not possible for us to accept the instant contention of the learned counsel for the petitioner. The original promotion granted to the petitioner on 4.1.1994 was ill-gotten and in violation of the circular dated 1.1993. What was unauthorisedly granted to the petitioner, cannot be now confirmed merely on account of the fact that respondent No.6 is stated to have retired from service in the interregnum.

CWP NO.14175-CAT OF 2001 8

In view of the above, we find no merit in this petition. The same is accordingly dismissed.

( J.S. Khehar )

Judge

( P.S. Patwalia )

April 19, 2006. Judge

vig


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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