STATE OF PUNJAB Vs. BHARAT BHUSHAN SHARMA

JUDGEMENT

(1.) Even though qualified Draftsman, Bharat Bhushan Sharma (here-in-after referred to as 'petitioner') came to be appointed by way of transfer as Sectional Officer from his parent department of Improvement Trust to Municipal Corporation, vide orders dated December 2, 1988, Annexure P-5. The Directorate, Local Government, Punjab, Chandigarh, through its Director, after show cause notice was issued to the petitioner, observed that "transfer of petitioner to the constituted Municipal Service of Sectional Officer from the constituted Trust Service of Draftsman, was irregular and illegal as a Draftsman could not be appointed by transfer as Sectional Officer. On receipt of reply to the show cause notice and after hearing the petitioner, order dated February 8, 1991 came to be passed, rescinding orders dated December 2, 1988, Annexure P-5. This order was successfully challenged by petitioner in Civil Writ Petition No. 2252 of 1991 as same was allowed by learned Single Judge vide orders dated November 19, 1991. It is against this order of learned Single Judge that State of Punjab, being aggrieved of same, has filed this appeal under Clause X of the Letters Patent. The facts in- so far as the same are relevant for deciding the controversy in issue, need a necessary mention.

(2.) Petitioner was appointed as Draftsman in the Improvement Trust, Ropar vide order dated April 27, 1976. He continued to serve as a Draftsman in the Trust Service of Draftsman till January, 1983 when on January 31, 1983, he was given the additional charge of Sectional Officer in the Improvement Trust, Ropar. Vide order dated June 27, 1986, petitioner was transferred from the post of Sectional Officer, Improvement Trust, Ropar to the post of Sectional Officer of the Notified Area Committee, Nangal Township. This post of Sectional Officer was a post of Punjab Municipal Services and is governed by the provisions of the Punjab Municipal Services (Recruitment and Conditions of Service) Rules, 1975 (here-in-after referred to as the 'Rules of 1975'). Order of transfer, Annexure P-4 was passed by Government of Punjab, Department of Local Government, Chandigarh. It has been the case of petitioner that when he was working as Sectional Officer in the Municipal Committees since 1983, he applied to the respondents that he should be absorbed as Sectional Officer in the Municipal Services. Accordingly, his case was processed by the respondents at great length and after duly considering his case, ultimately the Director, Local Government, Punjab-respondent No. 2 passed an order dated December 2, 1988 by which he was absorbed by transfer to the Punjab Municipal Service of Sectional Officer under the first proviso to Rule 5(2)(ii) of the Rules of 1975 and his pay was also ordered to be protected. He was, however, not to get his seniority for his past service. Petitioner was, however, issued show cause notice on June 22, 1990 by which respondent No. 2 informed him that his appointment by transfer was wrong and the same was to be rescinded. He was given an opportunity to show cause against the said order. Reply was submitted by the petitioner, with the result, as already indicated above. The impugned order, Annexure P-9 was challenged on variety of grounds, but, before the same are taken into consideration along with reasons given by learned Single Judge, in upholding the contention of petitioner with regard to invalidity of the same, it shall be useful to see the pleadings, on the basis of which, cause of petitioner was opposed by the respondents.

(3.) In the written statement filed on behalf of respondents 1 and 2, it has, inter alia, been pleaded that order, Annexure P-9 only seeks to rectify an illegality committed and error that crept into the order of appointment of the petitioner from the post of Draftsman in Improvement Trust Service to Municipal Service of Sectional Officer on wrong and mis-interpretation of provisions of statutory rules by former Director. Local Government, Punjab. Order, Annexure P-9 is self-explanatory and based on proper appraisal of facts and law and is perfectly legal and valid. Petitioner wants to cling to a promotional post of Sectional Officer when he is actually a qualified Draftsman, not eligible or entitled for appointment to the post of Sectional Of- ficer on transfer from the constituted Trust Service of Draftsman to the cadre of constituted Municipal Service of Sectional Officer in contravention of the Rules of 1975. With regard to averments of the petitioner that he was asked to look after the work of Sectional Officer in Municipal Committee, Ropar, it has been averred in the written statement that since there was no Sectional Officer to look after and oversee the work in the Municipal Committee, Ropar in the year 1983, he was asked to look after the work of said Municipal Committee which was an interim stop-gap arrangement and was an additional charge till further orders. Petitioner was, however, transferred to Notified Area Committee, Nangal Township while he remained a Draftsman in the provincialised service of Trust Draftsman and instead of being relieved of his additional charge, he somehow managed his transfer to the Notified Area Committee, Nangal Township. He never requested to be sent to his original cadre and relieved of the additional charge but with ulterior motive continued to cling to the post of Sectional Officer which was only an interim arrangement and wilfully dodged time with a view to establish his right to the post of Sectional Officer in the cadre of provincialised Municipal service. Making of an application by petitioner on July 28, 1988 for being permanently absorbed in the provincialised municipal service as Sectional Officer from the Trust service cadre by transfer has been admitted. It is, however, pleaded that petitioner hobnobbed with the then Director, Local Government, Punjab Mr. J.S. Kesar, IAS and the Director, in order to cause wrongful gain to petitioner, who had not played the role of guardian of rules and regulations but in utter disregard, sheer negligence and wilful distortion and misconstruction of Rules of 1975 as also erroneous interpretation of law and rules, passed an order of appointment of petitioner on the promotional post of provincialised municipal Sectional Officer. The said order was wrong, irregular, illegal and untenable on the grounds that "(a) the basic fact had been ignored that the petitioner was appointed and absorbed as mere Draftsman in the constituted service of Trust Draftsman which is governed under different Act, i.e., Punjab Town Improvement Act, 1922 read with different set of rules called the Punjab Trust Services (Recruitment and Conditions of Service) Rules, 1978. The petitioner, thus, belonged (o a different cadre under a different service and could not be promoted and appointed as Municipal Sectional Officer which is higher and altogether distinct and different post governed by different statute and statutory rules made thereunder: (b) order. Annexure P-5 could not be passed under first proviso to rule 5(2)(ii) of the Rules of 1975 because appointment in municipal service under the said rules could only be made by transfer if no suitable candidate was available for appointment by direct recruitment or by promotion. !n this case, this provision was wilfully overlooked by the then Director inasmuch as neither any effort had been made to fill up this post by advertising the same for direct recruitment nor any procedure had been followed to fill it by promotion but in utter disregard and total violation of Rule 5 of Rules of 1975, the petitioner was absorbed in altogether different promotional post by transfer; (c) petitioner, who was a Trust Draftsman, could only be appointed by transfer, if at all, he could be, as a Draftsman, but not as Sectional Officer; (d) the petitioner holds a diploma in Draftsmanship and for the post of Sectional Officer diploma in Civil Engineering is the requisite qualification and as such he was not even eligible for being considered to the post of Sectional Officer". When the appointing authority was of the view that order, Annexure P-5 was patently illegal, erroneous, wrong, based on misconstruction of provisions of the Rule 5(2)(ii) of the Rules of 1975 and void ab initio, the questions of probation, eligibility for promotion as Assistant Engineer/Municipal Engineer Grade II, Pay protection etc. would pale into insignificance and become irrelevant and rendered redundant as an order passed erroneously or on misinterpretation of provisions of Rules could be rescinded or revoked at any time so as to rectify the error or mistake and straighten the matter. This is precisely what has been done by passing order, Annexure P-9. Insofar as same pay scale for the two posts is concerned, it has been admitted and in that context it has been pleaded that there is no injustice caused to the petitioner in ordering his reversion from Municipal Sectional Officer to Trust Draftsman.