Shammi Kapoor and Others vs Municipal Corporation

A.K. Sikri, C.J.

C.M. No. 15016 of 2012 in CWP No. 1548 of 2006

The writ petition filed by the petitioners was dismissed for prosecution on 11.10.2012. In this application, restoration of the writ petition is prayed for. Reasons are given because of which learned counsel for the petitioners could not appear when the matter was called out on 11.10.2012. We are of the opinion that the petitioners have stated sufficient cause for not appearing on that date.

Accordingly, we recall our order dated 11.10.2012 and restore the writ petition to its original number,

CWP Nos. 1548 of 2006 and 9803 of 2003 and 15683 of 2006

This order shall dispose of these writ petitions as the common questions of law are involved therein. The facts of Civil Writ Petitions No. 1548 of 2006 and 9803 of 2003 are common and therefore for disposal of these writ petitions, facts below have been taken from Civil Writ Petition No. 1548 of 2006 whereas the facts of Civil Writ Petition No. 15683 of 2006 are discussed in detail in latter part of the judgment.

We have heard learned counsel for the parties.

Prayer made in these writ petitions is for grant of pay to the petitioners of the posts of Clerk from the date they were given current duty charge of the post of Clerk along with interest. The petitioners have also sought regularization of their services as Clerk as well.

The petitioners who are 22+35 in numbers, were appointed on a Class IV posts in the Municipal Corporation, Ludhiana. Even when their substantive post is that of a Class IV, they were assigned the work of the post of Clerk of a Class III post. It is submitted that there are no service rules governing the posts of Clerks in any of the Municipal Corporation/Municipal Council, in the State of Punjab. The post of Clerk is a non-provincialised post and is filled up at the level of Municipal Corporation.

Prayer for payment of salary is made on the ground that even if the post of aforesaid petitioners was Class-IV, once they were assigned the work of Clerks for the period they worked, they are entitled to the salary of the post of Clerks.

Though in the written statement filed by the respondents, it is denied that the petitioners had been working as Clerks, this contention of the respondents is in teeth of their own office orders which are produced by the petitioners along with this writ petition. Our attention is also drawn to the office order No. 731/General Deptt. dated 28.11.1995, as per which eleven of the petitioners were allowed to continue to work as Clerks in the Engineering Wing. This office order further discloses that it had been passed on the basis of approval given by the Commissioner in his order dated 23.11.1995, after receiving the report of the Superintending Engineer (B & R). To the similar effect is the office order No. 250/J.V. Dated 3.7.2001, which, inter alia, refers that the Commissioner vide his order dated 26.6.2001, after agreeing with the advise of the Local Advisor and as per the order passed by the Additional Commissioner dated 3.7.2001, has ordered that Class IV employees working in the Municipal Corporation are deployed as Clerks to work against the vacancies of the Clerk in their own pay scale be allowed to continue to work as such. This order pertains to 20 Clerks. Both these orders clearly demonstrate that the petitioners have been working as Clerks and that too under the orders of the Commissioner of the Municipal Corporation, who is the competent authority in this regard.

In these circumstances, the prayer of the petitioners to the effect that they be paid salary to the post of Clerks is allowed.

Insofar as the regularization of their services as Clerks is concerned, only direction which can be given is that if there are posts of Clerks available on which the petitioners have been working for the last number of years and if there are rules and the petitioners fulfill the eligibility conditions as per those rules their case for regularization as Clerk be also considered by the respondents. In case, there are no rules for appointment to the posts of Clerks in the Municipal Corporation or Municipal Committee, as pointed out by the petitioners, then the prayer of the petitioners shall be considered on the ground that they have been serving for a number of years subject to availability of posts.

Both these writ petitions are disposed of in the aforesaid terms.

CWP No. 15683 of 2006

Petitioner in this petition is also holding substantive post of Class-IV but he is made to work as Clerk which is clear from various orders annexed with this petition. The only submission of learned counsel for the respondent in the present petition is that the petitioner was allowed to work as Clerk under the orders of Executive Engineer who had no authority to pass such orders as the competent authority is the Commissioner, Municipal Corporation, Ludhiana. However, this person is also an employee of Municipal Corporation, Ludhiana and therefore is in the same position as the petitioners in other connected petitions. Since the petitioner is also performing the duty of Clerk from number of years we do not see any reason to deny this relief to the petitioner which is granted to other petitioners in the aforementioned two petitions. Therefore, this petition is also allowed oh the same terms.