Harbax Rai vs State of Punjab

S.S. Nijjar, J.—The petitioner was appointed as Sanitary Inspector in the Municipal Committee, Batala on 25.5.1955. He was promoted as Chief Sanitary Inspector in the grade of Rs. 160-10-280/15-400 w.e.f. 3.6.1969 vide resolution No. 298 dated 16.7.1969. The petitioner had passed the test for appointment as Chief Sanitary Inspector, which was held in 1969. Thereafter, he did refresher course from 23.4.1969 to 23.5.1969. While passing resolution No. 298, the period spent by the petitioner in doing the aforesaid course was treated as period spent on duty. The services of Sanitary Inspectors and Chief Sanitary Inspectors were provincialised by the Punjab Government on 9.11.1979. The promotion of the petitioner as Chief Sanitary Inspector was duly approved by the Deputy Commissioner, Gurdaspur by letter No. 1434 dated 7.7.1975. Under the provincialisation scheme the pay of Sanitary Inspector was fixed as 160- 10-280/15-400. The Chief Sanitary Inspector was also given the same scale plus Rs. 50/- as special pay. The government decided to screen employees before provincialising the service. The Screening Committee constituted u/s 38 of the Punjab Municipal Act, 1911 (hereinafter referred to as ''the Act'') considered (he qualifications and service record of the existing employees of Municipal Committees to adjudge their fitness for appointment to the municipal service. By order dated 9.11.1979, the petitioner was declared fit to be appointed as Sanitary Inspector along with some other persons. The order passed by the Screening Committee reads as follows :-

"Records seen. Found eligible. Adverse entries relate to remote past - subsequent entries are satisfactory. Hence declared fit as Sanitary Inspector." The petitioner was dissatisfied with the aforesaid decision. He, therefore, made a number of representations. Ultimately one of the representations made by the petitioner was rejected by order dated 1.2.1984. In the present writ petition, the petitioner seeks writ in the nature of certiorari quashing the order dated 9.11.1979.

Mr. Satya Pal Jain appearing for the petitioner submits that the order Annexure P-3 could not have been passed without complying with the rules of natural justice as it has resulted in demoting the petitioner from the post of Chief Sanitary Inspector to that of Sanitary Inspector. Learned counsel further submitted that u/s 38, sub-section (6-A) of the Act the terms and conditions of the services of the petitioner relating to remuneration, gratuity and provident fund could not be varied to his disadvantage on petitioner becoming a member of the municipal service. It is further submitted that under sub-section (6-A) of Section 38 of the Act if the petitioner was to be found not fit he had to be offered a lower post with his consent. No such consent had been taken from the petitioner. Furthermore, persons junior to the petitioner had been appointed on the post of Chief Sanitary Inspector. Consequently, it is submitted that the action of the respondent is violative of Articles 14 and 16 of the Constitution.

Mr. Sran appearing of the State of Punjab has vehemently argued that the writ petition is hopelessly barred by time. The impugned order is dated 9.11.1979 and the writ petition had been filed on 3.6.1985. Learned counsel has relied on the judgment of the Supreme Court in the case of S.S. Rathore Vs. State of Madhya Pradesh, and submitted that the writ petition ought to have been filed within a period of six months. In this case even the limitation for filing a suit which would be three years had expired. The writ petition had been filed after a period of six years. Learned counsel has also relied on the Division Bench judgment of this Court in the case of Jai Singh v. State of Haryana and Ors., 1997(3) SLR 408 in support of the same proposition. On merits, the learned counsel has pointed out that the case of the petitioner had been considered on merits. The persons who had been appointed on the post of Chief Sanitary Inspector were in fact senior to the petitioner. The petitioner had been working as Sanitary Inspector since 25.5.1955 whereas Joginder Singh, who had been shown at Serial No. 1 of the seniority list had been workingas Sanitary Inspector since 10.4.1952. Therefore, the petitioner had been rightly appointed as Sanitary Inspector.

I have considered the arguments put forward by the learned counsel for the parties. A perusal of Section 38 sub-section (6-A) of the Act shows that the terms and conditions of the service of the petitioner with regard to remuneration could not be varied to his disadvantage. Clearly, by appointing the petitioner on the post of Sanitary Inspector he had been made to suffer a loss of Rs. 50/- per month. Therefore, the action of the respondent would be violative of Section 38 sub-section (6-A) of the Act. The impugned order would also be violative of the rules of natural justice as no order which causes civil consequences can be passed without observing the rules of natural justice. Furthermore, the action of the respondent is discriminatory as persons junior to the petitioner had been appointed as Chief Sanitary Inspector. In paragraph 14 of the writ petition, the petitioner has averred that in his representation, the petitioner had pointed out that five persons who were junior to him had been appointed to the post of Chief Sanitary Inspector. This fact was not controverted by the respondent in the written statement. In reply to paragraph 14, it has been stated that the representations had been duly considered and rejected. Even the order rejecting the representation makes no mention of the fact that all persons appointed on the post of Chief Sanitary Inspector are senior to the petitioner.

With regard to the legal submissions made by Mr. Sran, it has to be noticed that no such objection had been taken in the written statement. Had the objection been taken in the written statement, then the petitioner would have been in a position to explain the apparent delay in filing the writ petition.

I am of the opinion that the objection with regard to delay and laches cannot be considered at this stage. it is to be noticed that the writ petition was admitted on 7.10.1985. Almost 16 years have passed since then. During the pendency of the writ petition, the petitioner has retired from service. It would be wholly inequitable to deny relief to the petitioner on the ground of delay and laches at this late stage. In law, it has been found that the order passed by the respondent is contrary to the provisions of the Act. Therefore, the petj-tion has to be allowed. Accordingly, the order An-nexure P-3 qua the petitioner is hereby quashed. The respondent is directed to treat the petitioner as Chief Sanitary Inspector in the Punjab Municipal Service from the date his services were provincialised. The petitioner shall be entitled to all consequential benefits such as increased emoluments by way of re-fixation of salary and other allowances and the re-fixed retiral benefits such as pension etc. Let the consequential benefits be calculated and given to the petitioner within a period of three months of the receipt of certified copy of this order.

Petition allowed.