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Union Territory of Chandigarh. v. Jagjit Singh Gill & Anr. - CWP-8260-CAT-2005  RD-P&H 7936 (27 September 2006)
C.W.P. No. 8260-CAT of 2005
Date of Decision: 21.09.2006
Union Territory of Chandigarh.
Jagjit Singh Gill and another.
CORAM : HON'BLE MR. JUSTICE J.S. KHEHAR
HON'BLE MR. JUSTICE S.D. ANAND
Present : Mr. K.K. Gupta, Advocate,
for the petitioner.
Mr. G.S. Bal, Advocate,
for the respondents.
S.D. ANAND, J.
1. This Civil Writ Petition calls into question the validity of order dated 30.11.2004 (Annexure P-3) vide which the Central Administrative Tribunal (Respondent No.2), while allowing O.A. No. 407/CH/2004 filed by respondent No.1, upheld his plea for a direction to the petitioner to consider his case for regular promotion to the post of Executive Engineer (Horticulture) with effect from the due date or in the alternative with effect from the date he has been holding the `current duty charge' of the said post.
It was further ordered by the Tribunal that in case the respondent no.1 is found fit and is so promoted, he shall be entitled to all the consequential CWP No. 8260-CAT of 2005 2
benefits attached to the post with effect from the date of his promotion to be given to him including the arrears of pay and allowances etc. The petitioner was directed to comply with the directions aforesaid within the outer limit of three months from the date of receipt of a copy of that order.
2. The facts, relevant for purposes of disposal of the controversy, lie in a narrow compass. Respondent No.1 joined as Section Officer (Horticulture) in the Engineering Department of the Chandigarh Administration on 23.7.1972. Immediately thereafter, he went on deputation to the Punjab Urban Planning and Development Authority (hereinafter referred to as the `PUDA'). Whilst on deputation, he was promoted by the parent department as Assistant Land Scaping Officer (Horticulture) with effect from 23.4.1985. The PUDA also promoted him as Divisional Engineer (Horticulture) vide order dated 30.7.1999. On repatriation, respondent No.1 joined the parent department on 31.12.2001 as Assistant Land Scaping Officer (Horticulture).
3. During the period of currency of deputation of the petitioner with the PUDA, the Municipal Corporation, Chandigarh came into being and Horticulture Wing was transferred (from Chandigarh Administration) to it (Municipal Corporation). A number of officials of the Horticulture Department opted for transfer to Municipal Corporation; while respondent No.1 (though on deputation otherwise with the PUDA), opted to stay put with the parent department. As many as 24 officials of different categories, whose transfer from the Chandigarh Administration to Municipal Corporation had been ordered, challenged their transfer by filing Original Applications which came to be allowed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh. The Chandigarh Administration CWP No. 8260-CAT of 2005 3
was directed to obtain fresh options from all concerned and, then, proceed to determine the matter in the light of their inter-se seniority. That process was under way and was likely to take lot of time for disposal. As respondent No.1 had filed a representation for his promotion to the post of Executive Engineer (Horticulture), the competent authority gave the `current duty charge' of that post to him vide order dated 5.2.2002 (Annexure A-7). The grant of `current duty charge' was subject to a number of riders including a stipulation that he would not be entitled to the pay scale of the post of Executive Engineer (Horticulture) or any other financial benefits on account of the aforementioned charge. Respondent No.1 accepted the current duty charge of his own volition. However, while functioning on that charge, he challenged the clause quoted above by filing O.A. No. 407 of 2004 before the Central Administrative Tribunal, Chandigarh Bench, Chandigarh. In that OA, he also applied for the grant of a direction to the Chandigarh Administration for promoting him as Executive Engineer on regular basis with effect from the date the vacancy occurred.
4. In the written statement filed by the Chandigarh Administration in that OA, the plea raised was that (regular) promotion could not be granted to respondent No.1 on account of the pendency of the matter of transfer of employees to the Municipal Corporation (to which a wing of the Horticulture Department had been transferred) and also the consequent restructuring of the cadre in the light of the residue job left with the Chandigarh Administration. The entitlement of respondent no.1 to pay and allowances of the higher post was also contested as he had not been granted regular promotion to that post.
5. On consideration of the matter, respondent no.2 passed the CWP No. 8260-CAT of 2005 4
impugned order, thereby directing Chandigarh Administration to pay to the respondent No.1 full pay and allowances to the post of Executive Engineer (Horticulture). It also directed that he be considered for promotion to the higher post from the due date or at least with effect from the date he was given the current duty charge of that post.
6. It is that order passed by the Tribunal which is under challenge in the Civil Writ Petition before this Court.
7. We have heard Mr. K.K. Gupta, learned counsel for the petitioner and Mr. G.S. Bal, learned counsel for the respondents.
8. The contention vehemently advanced on behalf of the petitioner Union Territory, Chandigarh is that respondent No.1 having been given only a current duty charge cannot be heard to argue for the grant of pay scale etc. payable to a regularly promoted official, particularly when he had accepted the charge aforementioned of his free volition.
9. The plea raised is plainly specious. As per the uncontroverted position (presented before the Central Administrative Tribunal and noticed in para no.6 of the impugned order), the post of Executive Engineer (Horticulture) had been lying vacant since 31.1.2000 on the retirement of Sh.
Hardev Singh. Out of three other officials senior to respondent No.1, Sh.
Raghubir Singh had already earned promotion to the post of Executive Engineer in Municipal Corporation, Sh. Raghvinder Sharma, who also opted for transfer to Municipal Corporation and whose challenge to the validity of the transfer was declined by the Central Administrative Tribunal vide order dated 1.8.2000 in O.A. No. 558/CH/1998, and he was held to have become an employee of the Municipal Corporation, died in May 2004. Sh. Mohinder Singh had opted to continue in the Municipal Corporation. When the CWP No. 8260-CAT of 2005 5
petitioner applied for consideration of his name for promotion to the post of Executive Engineer, which had come available with effect from 31.1.2000, he was informed by the petitioner that he should rejoin the Engineering Department, Chandigarh Administration, Union Territory, Chandigarh or else his lien with it would be terminated without any further notice. It was on pain of that threat that he joined Engineering Department, Chandigarh Administration with effect from 31.12.2001. On that date, he was the senior most officer of the cadre available with the petitioner. That being so, the petitioner had no justification whatsoever to refrain from considering his name for regular promotion to the post of Executive Engineer. It is not the plea by the petitioner that there was any taint in the service record of the petitioner or there were any other circumstances which would have disabled respondent no.1 from earning promotion to the post aforementioned.
10. All the relevant were duly noticed by the Central Administrative Tribunal in the impugned order and it was in appropriate appreciation of those facts that the impugned order was granted. It was also noticed in the impugned order that no cogent reason had been advanced by the Union Territory, Chandigarh Administration, for non consideration of the case of respondent no.1 for the grant of regular promotion. It was in the light thereof that the Tribunal deprecated the practice adopted by the Chandigarh Administration of relying upon persistent ad-hocism. The Tribunal had appropriately noticed the sadism discernible in denying regular promotion to the respondent No.1 inspite of his undisputed eligibility and available of a post. The approach of the Tribunal cannot be faulted on any valid score.
11. The reliance placed by the learned counsel for the petitioner upon State of Haryana Versus R.K. Aggarwal, 1997 (4) SLR, 733 is CWP No. 8260-CAT of 2005 6
thoroughly misconceived. In that case, the respondent was holding the post of Superintending Engineer while he was given current duty charge of the post of Chief Engineer in his own pay scale. No substantive promotion (to the latter post) was feasible on account of pendency of litigation with regard to the inter-se seniority of the members of that cadre. It was in the light of those peculiar facts that the Hon'ble Apex Court held that an official holding current duty charge could not claim entitlement to the pay and allowances admissible to a regularly promoted employee.
12. A similar controversy came up before a Division Bench of this Court in Jagar Singh and another versus State of Haryana and others, 2003(1) RSJ, 795. The petitioners in that case were the senior most Assistants working in the office of Deputy Commissioner concerned and were eligible for promotion as per the unamended rules which (rules) came to be amended at a subsequent point of time and the amendment was not indicated to be with retrospective effect. Those officials were given current duty charge of the post of Assistant Superintendents against vacant posts in their own pay scale. A Division Bench of this Court held that the State of Haryana could not have deprived those employees of the pay scale attached to the post of Assistant Superintendent by not making regular promotions when they were eligible therefor and posts for the purpose aforesaid were also available. It was further noticed that those officials had also been performing the job and responsibilities attached to that post. The entitlement of those officials to receive higher pay with effect from the date the current duty charge was given to him was upheld. That judicial pronouncement is fully supportive of the plea raised by the present petitioner.
13. In the light of the aforesaid discussion, it is apparent that the CWP No. 8260-CAT of 2005 7
petitioner/Union Territory of Chandigarh must fail in its challenge to the validity of the impugned order granted by respondent No.2 which shall stand affirmed in toto.
14. The petition shall stand dismissed with costs which, for the reasons noticed in para no.10 of this judgment, are quantified as Rs.10,000/-.
( S.D. ANAND )
September 21, 2006 ( J.S. KHEHR )
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