Sudama Ram Sharma vs Punjab University Chandigarh

M.L. Singhal, J.—Sudama Ram was working as Public Health Supervisor/Work Inspector on work charge basis with effect from 24.10.66 in the Punjab University, Chandigarh. Thereafter, he worked in the office of Executive Engineer, Punjab University, Chandigarh for about 9 months and became conversant with the office routine- Executive Engineer, Punjab University, Chandigarh found his work and con- duct satisfactory and recommended him for the vacant post of Computer in the grade of 120-5-200 w.e.f. 1.5.69. This post fell vacant consequent upon the appointment of one Maldev Daita as temporary Clerk. On the basis of the note put up by the Executive Engineer, Punjab University, Chandigarh, the Vice Chancellor approved the appointment of the plaintiff as temporary computer on 29.9.69. As per the duty rosier circulated by the Punjab University, Chandigarh on 21.5.83, he was working on the following duties :-

(1) Allotment of works

(2) Preparation of agreements and work order

(3) UGC correspondence

(4) Correspondence relating to estimates and construction of building departmentally

(5) Maintenance of old record etc. though his designation was computor.

From the duties assigned to him as per the roster circulated by the Punjab University, Chandigarh on 21.5.82, it is apparent that he was working on the ministerial cadre and was discharging the duties of an Assistant. In the Punjab University, Chandigarh calender, there was no provision for the post of computor nor any separate duties had been assigned for the post of computor nor was there any separate gradation list. There was no chance of promotion so far as computors are concerned. He made numerous representations to the authorities of the Punjab University, Chandigarh. Number of times, matter was taken up. Advice from the State of Punjab and Union Territory of Chandigarh was sought. U.T. Chandigarh replied that both the posts i.e. computor as well as clerk are equally entitled for promotion as they are in the same grade. He had all along been clamouring that his seniority be fixed in the clerical cadre along with other clerks with effect from 3.10.69 and city compensatory allowance and house rent etc. be paid to him. This benefit was declined to him though this benefit is for all ministerial staff. At present his duty roster is purely clerical and he is discharging the same duties as an Assistant working in Punjab University, Chandigarh. Executive Engineer also requested and recommended that the post of com-putor be merged in the clerical cadre of the Punjab University, Chandigarh. This request was turned down without any reason. On these allegations, he filed suit for declaration against the Punjab University, Chandigarh to the effect that the post held by him in the isolated cadre of computor be merged with the clerical cadre of the Punjab University, Chandigarh and further for mandatory injunction directing the defendant to fix his seniority in the clerical cadre w.e.f. 3.10.69 to date along with all perquisites and benefits.

Defendant contested the suit of the plaintiff urging that at the time of appointment of the plaintiff as com-putor, he did not possess the requisite qualification for appointment as Clerk. Minimum qualification for appointment to the post of Clerk at that time was Ma-tric/Higher Secondary Ist class or graduate. Plaintiff was only a matriculate with second division and Pre- University. Pay scales of the post of computor and clerks were also different at that time. Duties of the plaintiff were not purely ministerial in nature. It was denied that he was discharging duties of an Assistant. It was urged that there was no job or post of computer in the Punjab University, Chandigarh calender. It was further urged that there is no job or post of computor in the Punjab University, Chandigarh calender as Punjab University, Chandigarh calender does not specify all the posts. There is no necessity for preparation of gradation list in respect of the post of computor as it is not required. It was denied that the State of Punjab and U.T. Chandigarh replied to the queries put to them by the Punjab University, Chandigarh that computors are entitled to bepromoted in the cadre of clerks. Question of fixing the seniority of the plaintiff in the cadre of clerks could not arise as the post of computor is not in the cadre of clerks. Plaintiff''s request for merger of his post into the clerical cadre was not accepted as the cadre of the computor is different from clerical cadre. Duties of the plaintiff as computor are not identical to that of clerical post. Plaintiff is not discharging clerical duties. It was admitted that the Executive Engineer, Punjab University, Chandigarh recommended the merger of the post of computor in the clerical cadre. Said recommendation did not find favour with the authorities of the Punjab University, Chandigarh. On the pleadings of the parties, the following issues were framed ;-

Whether the plaintiff is entitled to the declaration and injunction as prayed for ? OPP

Whether the suit is maintainable ? OPP

Relief.

Vide order dated 20.1.86, Sub Judge First Class, Chandigarh decreed the plaintiff''s suit and the defendant Punjab University, Chandigarh was directed to give him chance to exercise his option in the light of the gazette notification dated 24.10.80 copy of which Ex. P9 and if the plaintiff chose to opt for clerical cadre, consequential benefits shall also be given to him according to rules, in view of his findings, that the plaintiff was entitled to opt for seniority either with the clerks or with the computors and in case he opted for the cadre of clerks, his experience as computor shall be counted towards the post of clerk.

Defendant-Punjab University, Chandigarh went in appeal which was allowed by learned District Judge, Chandigarh vide order dated 14.8.89. Not satisfied with the judgment/decree of learned District Judge, Chandigarh, plaintiff has come up in appeal to this Court.

I have heard the learned counsel for the appellant (plaintiff) and the learned counsel for the respondent (defendant) Punjab University, Chandigarh and have gone through the record.

It was submitted by the learned counsel for the appellant that he was working as Public Health Supervisor/Work Inspector on work charge basis w.e.f. 24.10.66. Thereafter, he worked in the office of Execu- live Engineer, Punjab University, Chandigarh and became conversant with the office routine. As he was conversant with the office routine, Executive Engineer recommended him for a vacant post of computer in the grade of 120-5-200 w.e.f. 1.5.69. His appointment as temporary compulor was approved by the Vice Chancellor, Punjab University, Chandigarh on 29.9.69. Plaintiff was appointed computer in place of Shri Mal-dev Datta who was appointed as temporary clerk. It was submitted that he was performing the duties of a computer as well of those of an Assistant. In support of this submission, he drew my attention to the duty roster circulated by the Punjab University, Chandigarh on 21.5.83 in which the duties to be performed by him were mentioned. Those duties are the allotment of works, preparation of agreements and work orders; UGC correspondence. Correspondence relating to estimates and construction of building depart mentally, etc. These duties have been mentioned in Ex. P7 (distribution of works) at Ex.P7/A. It was submitted that the duties being performed by him as mentioned in the duty roster indicate that his job was ministerial in nature. It was submilled that he was discharging the duties of an "Assistant" though he was designated as computer for the purpose of fixation of salary, li was submitted that in the Punjab University, Chandigarh calender there was no provisions for the post of computer nor separate duties have been assigned to the post of computer nor there was any separate gradaiion list. It was submitted that there was only one post of computor on the staff for the University and if he continues to be designated as computor, he will retire as computor without any further promotion as there is no separale cadre of computor.

It was submitted that he represented to the Punjab University, Chandigarh vide representation dated 11.6.80 whereby he prayed for treating the post of computor at par with that of a clerk as in the Punjab Government with retrospective effect viz. from 3.10.69 i.e. the date of his appointment. On his representation, Executive Engineer, Punjab University, Chandigarh gave certificate Ex. P2 that the nature of his duties as computor are the same as that of a clerk and in conformity with his counterparts in the Punjab Govt. and further he had been working as such right from 3.10.69. In continuation of his representation No. Works/22750 dated 20.10.81, he requested vide Ex.P3 to treat the post of computor as that of a clerk with retrospective effect viz. from the date of his appointment relying upon an extract of the Punjab Govt., Department of Planning notification dated 17.10.80 regarding the appointments of Class III employees, Service rules, Para No. 10 of Note No. 2 at Page 417 of Punjab Govt. Gaz., Oct. 24, 1980. Vide letter Ex. P6, Executive Engineer asked the Economic Adviser to Govt. Punjab whether computor is getting the same pay scale as that of a clerk and was entitled to all chances of promotion as enjoyed by clerk. Vide letter Ex.P7, Economic Advisor to Punjab Govt. informed the Executive Engineer that the computers and clerks are eligible for promotion to higher posts of Field Assistants/As- sistants provided they fulfill the condition regarding experience prescribed in the departmental rules viz. 2 years on the post of clerk or computor for promotion to the post of Field Assistant and 3 years as clerk for promotion to the post of Assistant. It was also informed that the persons working on the post of computers and clerks have joint seniority and the posts are inter-transferable and the pay scale of both is 110-250 and the duties of eomputor are collection and compilation of statistical data. Vice Chancellor appointed a committee for considering the request of Sudama Ram for inclusion of his name in the gradation list of clerks and the committee headed by Registrar found that the post of Shri Sudama Ram as computor could not be equated with the post of clerk as the merger of post carrying better pay scale in the general scale of clerk would not be proper, li was also felt by the committee that the previous incumbent of the post of computor Shri Mal-dev Datta became clerk as he competed in open selection for recruitment as clerk and came out successful. It was in view of the recommendation of the committee that the Vice Chancellor refused to equale computor with a clerk and integrate the post of computer into the post of clerk. It was submitted by the learned counsel for the appellant that in the matter of integration of the post of compulor into the posts of clerks, the University is governed by the Punjab Govt. rules in view of Rule 38 Part 3 of Punjab University Calender Vol. III which reads as under :-

"Any case not coming within the purview of regulations contained in this chapter may be decided in accordance with rules made by the Punjab Govt. for its employees or in such manner as the Senate in the case of Officers of Class A and Syndicate in the case of Officers of Class B as may deem fit."

It was submitted that as per note 2 of rule 10 of the Punjab Economic and Statistical Organisation Class III Service Rules, 1980, which govern the post of computers in the Punjab University, he ought to have been allowed to opt whether he wanted to have seniority with computers or with clerks. He was to exercise this option within 3 months of the promulgation of these rules. Note 2 of Rule 10 of the 1980 Rules reads as follows :-

"Note-2 : The persons recruited as Clerks and Computers shall be allowed to exercise an option within a period of three months from the date of the commencement of these rules to have seniority either with Clerks or with Computers. The op-lion once exercised shall be final. In case an employee fails to exercise the option within the said stipulated period, he shall be considered to have opted for the post against which he was originally recruited. Separate seniority lists for clerks and computers shall be prepared keeping in view the options so exercised and the existing joint seniority of clerks and computers. In case of computers opting for the cadre of clerks, their experience as clerk shall be counted from the date of option and any experience gained by them as clerk before exercising the said option shall also be counted. In case of clerks opting for the cadre of computors an experience gained by them as clerk before ex-ercising the said option shall also be counted for promotion to the post of Field Assistant Grade II It is clarified that after the option is exercised the experience shall be counted on the basis of option irrespective of the fact whether the employee is actually posted in the cadre of his option or not for want of vacancy in that cadre."

It was submitted that under the Punjab Economic and Statistical Organisation (State Service Class III Rules, 1963, computers and clerks constitute one cadre. 1980 rules lay down that the inter-se seniority of the members of the service in each cadre would be determined by the length of continuous service in that cadre of the service. These rules provide for a separate/ cadre for computers and clerks. It was submitted than the post of computer should have been allowed to be merged in the post of clerks in view of noie 2 of rule 10 or 1980 rules by the Punjab University on its own when he had all along been representing to the Punjab University that there is only one post of computer in the Punjab University and computers is not a hierarchical organisation. There is no promotion for computer, Vice Chancellor should have passed an order keeping in view his representation that he is absorbed amongst clerks and thai note 2 of ruie 10 of the 1980 rules shall govern his seniority. His entire experience as computer should be taken into account while working out his seniority on the post of clerk. Post of computers and clerks are inter-changeable.

Faced with this position, learned counsel for the respondent Punjab University submitted lhat the posts of clerk and computers are different posts. Sudama Ram was not fulfilling the qualifications for the post of clerk inasmuch as he was matric second division plus Prep when he was initially appointed 10 the post of cbmputor while qualification for the post of clerk was matric/higher secondary first division or graduation. Suffice it to say, difference in qualification for the post of computer and clerk will not operate so far as the case of Sudama Ram is concerned because of the integration of the post of computer into the post of clerks. Integration of the post of computor into the post of clerk is warranted by note 2 of Rule 10 of the 1980 rules (supra). When the integration of the post of computer into the post of clerk is permitted by the rules, difference in their qualifications when they were initially recruited to the post of Computor or clerk will be immaterial. Even otherwise, ours is a welfare state. It would be inequitable and unjust to keep one on the same post for the entire of his career spanning over 25-30 years. Promotion is necessary concomitant of efficiency in public service. Learned District Judge also felt that the balance was swinging in favour of the appellant when it was observed that in the absence of promotional prospectus, the service is bound to degenerate and stagnation kills the desire to serve properly. Reasonable promotional opportunities should be available in every wing of public service. It generates efficiency in service and allows positive attitude to grow for achieving excellence in service.

In view of what has been said above, I am of the opinion that this appeal should succeed. This appeal is accordingly allowed. Judgment and decree passed by the learned District Judge are set aside and those passed by the learned trial Court are restored. Appellant shall not be called upon to exercise his option. Punjab University, on its own, will absorb him in the cadre of clerks w.e.f. 1.5.69, and will view him in the cadre of clerks w.e.f. 1.5.69, and he will be viewed as clerk for all intents and purposes w.e.f. 1.5.69 on the staff of the Punjab University. Consequential benefits shall be worked out accordingly and disbursed to him.

Appeal allowed.