Quashed

Union of India & Ors. v. Central Administrative & Ors.

Punjab & Haryana HC18 Feb 2014CWP/2414/2004

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana held that departmental canteen employees merged with other group 'D' employees. It set aside an order barring their promotion and directed implementation within one month, denying monetary relief for the delay.

What did the court decide?

Impugned order quashed; directive to promote successful candidate within one month; dismissal of writ petition with exemplary costs of ₹20,000.

Union of India & Ors. Vs Central… — Service and Employment | Punjab & Haryana HC (2014)

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[1]

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CWP No.2414-CAT of 2004

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No.2414-CAT of 2004 Date of Decision: 18.02.2014

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Union of India and others

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... Petitioners

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Versus

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The Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others

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... Respondents

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CORAM:HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN PALLI

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Present:Mr. Anand Chhibbar, Senior Advocate with Ms. Harpriya Khaneka, Advocate, for the petitioners.

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Mr. K.B. Sharma, Advocate, for respondent No.2.

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1.Whether reporters of local papers may be allowed to see the judgment?

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2.To be referred to the reporters or not?

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3.Whether the judgment should be reported in the digest?

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SANJAY KISHAN KAUL, CHIEF JUSTICE (Oral)

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Private respondent No.2 was appointed as a Bearer in Group 'D' service in the department of Canteen run in the office of Accountant General (Audit), Haryana. The service condition for such employees, at the time of recruitment of respondent No.2 on 03.08.1989, was governed by the Departmental Canteen Employees (Recruitment and Condition of Service) Rules, 1980. These rules were, however, repealed by the notification dated 15.12.1994 on account of the judgment of Hon'ble the Supreme

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Rajan Kumar 2014.02.20 14:22 I attest to the accuracy and integrity of this document Chandigarh

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[2]

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CWP No.2414-CAT of 2004

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Court in Civil Writ Petition Nos.6198 to 7044 and 5246 to 5255 of 1993 – C.K. Jha and others v. Union of India and others , decided on 11.10.1991 declaring that departmental Canteen employees be treated as Central Government employees w.e.f. 01.10.1991. The consequences of that were that departmental Canteen employees like respondent No.2 were governed under the relevant rules and regulations applicable to holders of civil posts and given service benefits as applicable to other Central Government employees of comparable status.

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On 07.08.1997, the department invited applications from Matriculates forming part of the Group 'D' staff for appearing in the qualifying departmental examination for promotion to the posts of Clerks. Respondent No.2 also appeared in the examination and was declared successful but while other seven successful candidates were promoted, respondent No.2 was not so promoted.

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It is the case of respondent No.2 that one Shakar Chander (Tea Maker), who was also in Group 'D' in the office of Deputy Accountant General (Audit), was not even allowed to appear in the departmental examination to the post of Auditor and, consequently, he filed O.A. No.99/CH/1998 before the Central Administrative Tribunal, Chandigarh Bench and the said O.A. was allowed on 18.01.1999. Respondent No.2, thus, made representation to the concerned department relying on this

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[3]

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CWP No.2414-CAT of 2004

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judgment of the Tribunal and requested for his promotion. In the meantime, the department carried the matter further by assailing the order of the Tribunal before this Court but the writ petition was dismissed on 10.01.2001 and ultimately Shakar Chander was permitted to appear in the departmental examination though once again he was not promoted. This gave rise to second round of litigation by Shakar Chander and his plea was accepted for promotion at par with his juniors in terms of the order dated 29.10.2002 of the Tribunal. The writ petition filed assailing that decision was dismissed on 06.03.2003. Review filed before the Tribunal was dismissed with costs on 22.05.2003 and it is only then that the department promoted Shakar Chander as Auditor.

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In view of the aforesaid settled position finally emerging, respondent No.2 again made a representation on 29.05.2003 with new hope but that hope was belied. There was, thus, no option with respondent No.2 but to file O.A. seeking to assail the alleged clarification dated 09.02.2000 stated to have been issued, which was stated to be standing in the way of the said respondent and appearing for the departmental competitive examination for promotion. In terms of this office memorandum, Canteen employees were sought to be prohibited from taking recourse to the avenue of promotion. O.A. No.576/CH/2003 filed by respondent No.2 was allowed on 25.11.2003, which has

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[4]

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CWP No.2414-CAT of 2004

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been assailed in the present writ petition filed under Article 226 of the Constitution of India.

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The writ petition was admitted and the operation of the impugned order was stayed vide order dated 04.08.2005. Thus, respondent No.2 till date without any benefit of promotion having successfully cleared the examination more than 16 years ago is working.

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We have heard learned counsel for the parties.

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Learned senior counsel for the petitioners contends that the basic issue is that the cadre of the Canteen employees is separate from other Group 'D' employees and, thus, the benefit of taking the examination and being promoted is not available to respondent No.2. The clarification dated 09.02.2000 was not taken note of in the case of Shakar Chander and was not pleaded and, thus, the judgment in that case is not required to be mandatedly followed in the present case.

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We put a query to learned senior counsel for the petitioners as to how many cadres are there in Group 'D'? Learned senior counsel fairly states that there is only one cadre. In this situation, we fail to understand the unnecessary aspects sought to be raised by the department qua different cadres and, thus, the promotion being confined to only one channel, every employee of Group 'D' is, thus, entitled to be considered for promotion subject to clearance of the test except the

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[5]

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CWP No.2414-CAT of 2004

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departmental Canteen employees on an ostensible plea that they are a category by themselves. Such a plea, in our view, is completely inadmissible for the reason that this controversy was put at rest and the judgment was rendered by Hon'ble the Supreme Court in C.K. Jha's case (supra) and, thus, such Canteen employees in fact merged with the other Group 'D' employees there being no separate category of Group 'D' employees existing in the cadre. It would be as if an exception is sought to be carved out alone for the Canteen employees.

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There is also another aspect of the matter: (i) it is not that promotion is a matter of right but is based on a qualification of test. Respondent No.2 has competed against others and qualified test and on his own merit was declared passed and, thus, is liable to be selected and promoted.

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In our view, there is no reason to take a different view from the one taken in Shakar Chander's case where the matter was assailed by the department by taking up the matter before the High Court, again fighting before the Tribunal and even enduring an unsuccessful review application, which was dismissed with costs. Faced with the vague plea only they sought to accept the judgment.

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If we turn to the impugned order, we find that all aspects have been considered including the circular dated 09.02.2000 as also the earlier circular dated 26.08.1994. Interestingly, the

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[6]

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CWP No.2414-CAT of 2004

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earlier circular dated 26.08.1994 had declared the Canteen employees of the department eligible to appear as departmental candidates to take the interview/examination for recruitment to posts advertised by the Government department/office, if they otherwise fulfill the qualifications and conditions specified therein. No distinction was carved out disentitling the Canteen employees. However, vide the subsequent clarification dated 09.02.2000, such a bar is sought to be created. Even whether there is really no specific cadre of Canteen employees for Group 'D', the applicants were required to fulfill the qualifications for appearing in the examination including of being a Graduate and compete on merit with the other candidates.

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The Tribunal has held that the policy decision dated 09.02.2000 can at best apply prospectively. Thus, even if this principle is applied to respondent No.2, he is not disqualified for promotion as he was declared a successful candidate on 09.12.1997. This is apart from the fact that we find really no rationale to issue the clarification dated 09.02.2000 seeking to artificially create for the first time a separate cadre of Canteen employees within Group 'D' when there was no such separate carving out done when they were absorbed as Government employees in pursuance to the judgment of Hon'ble the Supreme Court in C.K. Jha's case (supra).

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It is obvious that the mental approach, which permeated

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[7]

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CWP No.2414-CAT of 2004

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in Shakar Chander's case is somehow preventing the right of competing with others for promotion which also permeated the present case as has been without any rationale or justification. Unfortunately, respondent No.2 cannot be compensated for the loss of more than 16 years of an opportunity to serve in promoted post or get the monetary benefits thereof as he has not worked in the promoted post. We, however, direct that the impugned order should be implemented within one month from today.

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In view of our aforesaid judicial view, it would be made clear that if there are other matters still pending departmental or judicial proceedings arising from the clarificatory circular dated 09.02.2000, relief must be granted to the effected employees by the department itself.

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The petition is, accordingly, dismissed with exemplary costs of `20,000/- payable to respondent No.1 in case there is any delay in implementation of the judgment beyond a period of one month.

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( SANJAY KISHAN KAUL ) CHIEF JUSTICE

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( ARUN PALLI ) JUDGE

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February 18, 2014 Rajan

Union of India & Ors. v. Central Administrative & Ors.

Case brief

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Union of India & Ors. v. Central Administrative & Ors.

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