Abdul Rajak vs State of Haryana

Ritu Bahri, J. (Oral)—Petitioner is seeking quashing of notice dated 29.11.2013 (Annexure P-5) and order dated 30.12.2013 (Annexure P-10) whereby the petitioner has been reverted from the post of Mechanical Fitter-II to the post of Mechanical Fitter Helper after a period of six years on the ground that on the date of his promotion order dated 19.09.2007 there was no vacant post for Mechanical Fitter-II on which he could be promoted.

Petitioner was appointed as Mechanical Fitter Helper in October, 1988 in Public Health Engineering Department, Sub-Division, Hodal. He was transferred along with the post to Hathin, District Faridabad. The next promotion of the petitioner was to be on the post of Mechanical Fitter-II as per the Haryana Public Works Department, Public Health Branch, Circle Cadre, Engineering Establishment (Group ''C'') Service Rules, 1988. As per the said Rules, 50% post of Mechanical Fitter-II was to be filled by way of promotion and remaining 50% by way of direct recruitment. The experience of seven years as Fitter Helper/Plumber Helper/Fitter Coolie is required for promotion. Accordingly, after seven years of service the petitioner was promoted to the post of Mechanical Fitter-II, vide order dated 19.09.2007 (Annexure P-2). Vide order dated 01.12.2009 (Annexure P-4) he was granted the benefit of revised pay scale and Assured Career Progression (ACP) etc.

A show-cause notice was issued on 29.11.2013 (Annexure P-5) by which the petitioner was sought to be reverted on the ground that there was no vacant post of Mechanical Fitter-II on the date when he was promoted. Petitioner gave his reply dated 04.12.2013 (Annexure P-6) and thereafter the petitioner was not allowed to discharge the duties/function on the post of Mechanical Fitter-II.

The grievance of the petitioner in short is that many persons junior to him were promoted in the year 2010 as per promotion order (Annexure P-7) to the post of Mechanical Fitter-II. Petitioner could not be reverted on the ground that there was no post vacant available at the time of his promotion.

Learned counsel for the petitioner has referred to a judgment of this Court in CWP No. 5468 of 2011 titled Mohar Pal v. State of Haryana and others, whereby the petitioner was reverted on the same conditions. Consequently, the writ petition was allowed and the impugned order reverting the petitioner was set aside, vide judgment dated 10.05.2012 (Annexure P-8).

Petitioner had approached this Court by way of CWP No. 28408 of 2013 titled Abdul Rajak v. State of Haryana and others, against the show cause notice and the writ petition was disposed of vide order dated 20.12.2013 by giving liberty to the respondents to pass speaking order on the show-cause notice after considering the reply and after giving effective hearing to present his case. Thereafter, the impugned order dated 30.12.2013 (Annexure P-10) has been passed.

The stand taken by respondent No.4 in the written statement is that pursuant to the order of this Court in CWP No.28408 of 2013 respondent No.4 gave the personal hearing to the petitioner on 16.12.2013 and thereafter the petitioner was appeared on 20.12.2013 but failed to give satisfactory reply. Thereafter, the order dated 19.12.2007 promoting the petitioner as Mechanical Fitter-II was withdrawn. It has been further explained that the petitioner was promoted by the Superintending Engineer Water Supply and Sanitation, Circle, Faridabad on 19.09.2007 and while issuing order of promotion to the post of Mechanical Fitter Grade-II, it was clearly mentioned that "if at any stage" the petitioner was not found eligible for promotion on account of qualification length of service experience or any other reasons he will be reverted to his original post without any notice. A perusal of the record of office of Superintending Engineer Water Supply and Sanitation Circle Faridabad shows that there was no sanctioned post of Mechanical Fitter or Tool Operator Mechanic on the date the petitioner was promoted. There was no sanctioned post of Mechanical Fitter as well as Tool Pump Operator in Faridabad Circle till 30.06.2009 and the promotion of the petitioner given to the post of Mechanical Fitter-II was wrong on this account. Further as per the tentative seniority list of Regular Mechanical Establishment Staff of Group C & D of Water Supply and Sanitation Circle, Faridabad as stood on 31.12.2003 in the category of Mechanical Fitter Helper, the petitioner was junior to Mohar Lal, Mechanical Fitter Helper and senior to Puran Chand, Mechanical Fitter Helper. Both the Mohar Pal and Puran Chand have already been reverted as Mechanical Fitter Helper/Mechanical Chargeman Helper by the then Superintending Engineer Water Supply and Sanitation Circle Faridabad, vide memo No.8565 dated 05.12.2008 and memo no.8654 dated 05.12.2008 respectively. After shifting of Public Health Engineering Circle Faridabad to Jhajjar on 01.07.2009, various works of Faridabad District were attached with Public Health Engineering Circle, Gurgaon and works of Palwal and Mewat District were attached with Public Health Engineer Circle, Palwal. Various posts sanctioned under the Superintending Engineer Public Health Engineering Circle, Palwal were reallocated to Public Health Engineering Circle, Palwal as well as Public Health Engineering Circle, Gurgaon due to shifting of Public Health Engineering Circle, Faridabad to Jhajjar, Mohar Pal was transferred to Public Health Engineering Circle, Gurgaon and he was transferred to Public Health Engineering Circle, Palwal, therefore, he was also not entitled to the benefit of your promotion as Mechanical Fitter even when he was transferred to Public Health Engineering Circle, Palwal. The eligibility for promotion to the post of Mechanical Fitter Helper-II as per the notification of the State of Government dated 25.12.2009 is as under: -

Designation

Direct requirement

Appointment other than Direct requirement

Mechanical Fitter

(i) Matric with Hindi/Sanskrit

(i) Five Years experience as MFH/ All Mechanical Helpers

(ii) ITI Certificate in the trade of Diesel Mechanic or its equivalent

(ii) Should be able to read and write Hindi

As per the seniority list of Regular Mechanical Establishment as on 01.07.2009, the petitioner was at Sr. No.11 with a remark that he wrongly promoted Mechanical Fitter without availability of sanctioned post, vide order dated 19.09.2007 by Superintending Engineer Water Supply and Sanitation Circle, Faridabad and steps to revert him shall be taken after getting clarification from Head Office. Thereafter a show-cause notice was issued to him and the order of promotion dated 19.09.2007 was withdrawn.

After hearing the learned counsel for the parties, going through the record, this Court is of the considered view that in the written statement the respondent(s) have not denied the fact as stated in paragraph No.8 of the writ petition that many persons junior to the petitioner have been promoted as Mechanical Fitter-II in the year 2010. At the same time, the reversion order of Mohar Pal, who was senior to the petitioner, has since been set aside in CWP No.5468 of 2011, vide order dated 10.05.2011 (Annexure P-8). However, liberty was granted to the respondents to pass fresh order after verifying the vacancy position as it existed on 22.12.2005.

The written statement has been filed in this case on 05.06.2014 and the judgment in Mohar Pal''s case (supra) was passed on 10.05.2012. The respondents have not chosen to give their stand as to how the judgment (Annexure P-8) has been implemented once the order reverting Mohar Pal had been set aside and they have not explained whether after setting aside the order of reversion of Mohar Pal any fresh order was passed on account of vacancy position as it existed 2005. Hence, for all intents and purposes the judgment in Mohar Pal''s case (supra) has attained finality and his promotion dated 12.09.2007 has been upheld.

Another fact which the respondent(s) have not denied in paragraph 8 of the reply is that people junior to the petitioner has been promoted in the year 2010, the reply is evasive. The petitioner has placed on record order dated 28.12.2010 (Annexure P-7) whereby promotion has been made to the post of Mechanical Fitter, to a person who was junior to the petitioner. The respondents in reply to paragraph 8 have not explained as how the junior could be promoted and the petitioner has been reverted on account of non-availability of the post.

In view of above, the case of the petitioner is squarely covered by the judgment in Mohar Pal''s case (supra) (Annexure P-8). The writ petition is allowed. The impugned notice dated 29.11.2013 (Annexure P-5) and order dated 30.12.2013 (Annexure P-10) are hereby set aside. The direction to the respondent to release all the consequential benefits to the petitioner, within a period of three months, from the date of receipt of certified copy of this order.