NANAK CHAND Vs. STATE OF HARYANA

JUDGEMENT

(1.) Petitioner-Nanak Chand, who is working as Safai Mazdur in Municipal Council, Palwal has filed this petition under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of mandamus directing the respondents to promote him w.e.f. the date his junior has been promoted. He was initially appointed as Safai Mazdur in Municipal Council, Palwal on daily wage basis vide annexure P1 w.e.f. 28.11.1978. Later on, he was appointed on regular basis w.e.f. 26.4.1979. Annexure P2 is the letter appointing him on regular basis. In the year 1986, he made an application for promotion as Safai Daroga. His request was turned down by Deputy Commissioner, Faridabad (respondent No. 3) on the ground that no post was available and as and when any post became available, he would be considered. Letter Annexure P3 is communication to this effect. On 30.6.1996, one regular post of Safai Daroga fell vacant due to retirement of an employee of Municipal Council, Palwal. Respondent No. 5 i.e. Om Parkash was promoted to the post of Safai Daroga vide order Annexure P6 dated 27.2.1997 by respondent No. 4. Petitioner was not considered for the post of Safai Daroga. Respondent No. 5 i.e. Om Parkash was much junior to the petitioner. Petitioner had been working since 1978 and even on regular basis since 1979 on the post of Safai Mazdur, while respondent No. 5 was initially appointed on 31.5.1989 as Safai Mazdur. He made representation Annexure P7 to Municipal Council, Palwal claiming right to be promoted against the vacancy against which Om Parkash had been promoted but to no effect. Petitioner through this petition, filed under Articles 226/227 of the Constitution of India, has prayed for the issuance of writ in the nature of mandamus directing the respondents to promote him/consider him for promotion w.e.f. the date his junior was promoted.

(2.) Respondents 1 to 4 contested this petition pleading that only provisional promotion has been made. S/Shri Atam Parkash, Ram Lal, Ram Chand, Kalu Ram, Kiran, Om Parkash, Manohar Lal, Puran and Karan Singh are senior to the petitioner among the Safai Mazdurs as such the petitioner could make no grievance if Om Parkash respondent No. 5 had been promoted, without impleading Atam Parkash, Ram Lal and others, no relief can be granted to the petitioner. This petition is premature as without making any representation to the Executive Officer, Secretary or the Administrator of the Municipal Council, he has come to this court for a writ of mandamus. Petitioner was appointed on probation on 2.5.1979. His services were regularised on 28.4.1980.

(3.) Respondent No. 5 contested this petition urging that the petitioner was suspended on account of misconduct on his part and he remained suspended between 1.9.1980 to 5.9.1980. In November, 1996, he was also suspended on account of negligence in the performance of his duty and was issued a charge- sheet on 1.12.1996. It was denied that petitioner was senior-most. Instead, Atam Parkash, Ram Lal etc. are senior to him. Safai Mazdurs went on strike in December 1996. Strike continued upto March 3, 1997. During this period, the Safai Daroga including the petitioner did not work. Respondent No. 5 performed duty on almost all those days when petitioner and others were on strike. Vide order annexure R1, he was asked to perform the duties of Safai Daroga in his pay scale.