JOGINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner joined the service of Market Committee, Sirhind, respondent No. 4 as a Steno-Typist on daily wages in the year 1986. Thereafter he was appointed as Steno-Typist w.e.f. 13.5.1987 in the pay scale of Clerk. It is the case of the petitioner that throughout the service, he has been given the pay scale and allowances of the post of Clerk and not Steno-Typist. On the other hand, respondent Nos. 5 and 6 were appointed as Clerks on daily wages in the year 1986. Their services were initially regularised as Clerk w.e.f. 3.10.1990 on the basis of the award of the Labour Court. These respondents challenged the aforesaid award in this Court by way of filing a writ petition which was dismissed. The judgment of the High Court was challenged by respondent Nos. 5 and 6 in the Supreme Court. The Supreme Court directed that the respondents should again approach the Secretary, Punjab Mandi Board for redressal of their grievances. Thereafter, Secretary, Punjab Mandi Board has regularised the services of these respondents w.e.f. 13.7.1987. In 1987, a common seniority list of the Clerks and Steno-Typists was issued and the name of the petitioner was included therein. Punjab Market committee (Class III) Services Rules, 1989 came into effect on 27.1.1989 (hereinafter referred to as "the Rules"). These rules have been promulgated by the State Government under Section 43 of the Punjab Agricultural Produce Markets Act, 1961. The same were published in the Punjab Government Gazette dated 27.1.1989 vide Notification No. G.S.R. 9/P.A. 23/61/S. 43/89. Instructions were issued by the Punjab Mandi Board-respondent No. 3, on 8.12.1992 (Annexure P-2) merging the posts of Kandaman, Record Keeper, Store Keeper, Caretaker, Restorer, Moharrir, Kanda Muharrir, Rest House Attendant, Kanda Munshi etc. appointed after 3.7.1980 in the Cadre of Clerks. It was, however, mentioned that in the Cadre of Clerks for giving them scale of Rs. 1200-2100 and 1500-2640, all these would be shown below all the Clerks in the seniority list. Thereafter the recruitment was only to be made on the post of Clerks. Although the petitioner was a Steno-Typist, he was shown senior to respondent Nos. 5 and 6 in the common seniority list of Clerks. The case of the petitioner for adjustment on the post of Clerk was sent to the Punjab Mandi Board on the basis of a resolution having been passed to that effect on 29.6.1998 by the Market Committee, Sirhind where the petitioner is working. The petitioner has pleaded in the writ petition that the delay in passing the formal orders regarding petitioner's adjustment/merger as Clerk was due to the casual attitude of the department. In the tentative Seniority List of Clerks/Steno-Typists issued on 8.9.2000, the petitioner was again shown senior to respondent Nos. 5 and 6. The petitioner was even designated as Junior Assistant by order dated 20.11.2000. However, on the same date, the post of Steno-Typists was abolished. The petitioner was adjusted on the post of Clerk. In the meantime, persons junior to him, including respondent Nos. 5 and 6 have been promoted on the posts of Auction Recorder. The petitioner, therefore, submitted an appeal before the Secretary, Punjab Mandi Board claiming promotion against the post of Auction Recorder. The appeal filed by him was accepted by passing an order dated 29.6.2001 (Annexure P-7). The Market Committee, Sirhind was directed to consider the petitioner for promotion by giving him benefit of service from the date of his joining. In compliance with the order of Punjab Mandi Board, the petitioner was promoted as Auction Recorder from the date the persons junior to him were promoted w.e.f. 16.11.2000, by order dated 7.9.2001 passed by the Chairman, Market Committee, Sirhind (Annexure P-9). In the seniority list dated 24.9.2001 of the Auction Recorders, the petitioner is shown at Sr. No. 11 and respondent Nos. 5 and 6 have been shown at Sr. Nos. 13 and 14. Aggrieved against the aforesaid order dated 29.6.2001 (Annexure P-7), respondent Nos. 5 and 6 filed an appeal before the Secretary, Department of Agriculture, Punjab under Section 42 of the Punjab Agricultural Produce Markets Act, 1961. The petitioner was impleaded as party. The petitioner filed a written statement. Parties were represented by their counsel. By order dated 13.10.2003 (Annexure P-12), the order dated 29.6.2001 (Annexure P-7) promoting the petitioner on the post of Auction Recorder was set aside. On the basis of the aforesaid order, show-cause notice (Annexure P-13) was issued to the petitioner as to why he be not reverted back to the post of Clerk (Junior Assistant). The petitioner submitted his reply (Annexure P-14). Now the respondents have passed the impugned order dated 7.7.2004 (Annexure P-15) reverting the petitioner to the post of Clerk.

(2.) We have heard the learned counsel for the petitioner at length. It is submitted by the learned counsel that all along the petitioner had been performing the duties of a Clerk, although he had been appointed on the post of Steno-Typist. Non-absorption of the post of Steno-Typists in the cadre of Clerks was due to the inaction of the respondents. The petitioner cannot be made to suffer for no fault of his own.

(3.) We are of the considered opinion that the writ petition is based on a misconception that the post of Steno-Typists stood merged in the cadre of Clerks by virtue of instructions dated 8.12.1992 (Annexure P-12). A perusal of the aforesaid instructions shows that the post of Steno-Typist is conspicuously absent from the list of Posts which have been merged in the cadre of Clerks. The post of Steno-Typists not having been merged with the post of Clerks, the petitioner clearly could not have been included in the seniority of Clerks. The petitioner also could not have been considered for promotion on the post of Auction Recorder as the post of Steno-Typist was not a feeder post for the post of Auction Recorder. The service conditions of the employees of the Market Committee are governed by the statutory rules which came into force on 27.1.1989. Rule 8 of the aforesaid Rules provides for the method of recruitment and the qualifications. Appendix "B" of the aforesaid Rules provides for the method of recruitment on the post of Auction Recorder which is as under :-