Punjab-Haryana High Court
Swarn Singh & Ors vs State Of Punjab & Anr on 9 May, 2024
Neutral Citation No:=2024:PHHC:065355
-1-
CWP-2571
2571 of 2014
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-2571
2571 of 2014
Reserved on: 30.04.2024
Pronounced on: 09.05.2024
Swarn Singh and others
......Petitioners
Versus
State of Punjab and another
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by:: - Mr. K.L. Arora, Advocate, for the petitioners.
Ms. Saguna Arora, AAG, Punjab.
NAMIT KUMAR, J.
1. The petitioners have filed the instant writ petition under
Articles 226/227 of the Constitution of India seeking a writ of
certiorari for quashing the advertisement dated 19.01.2014 (Annexure
P-10)
10) to the extent that three posts of Chief Sanitary Inspectors (CSIs)
have been advertised to be filled in by way of direct recruitment, being
in violation of notification dated 10.06.2009
2009 (Annexure P-3), which
provides for filling up of the post of Chief Sanitary Inspector and
Superintending Engineer by way of 100% promotion and invariably
acted upon in promotion orders dated 28.11.2011 and 24.12.2011
whereby total of nine Sanitary Inspectors we
were promoted to the post of
Chief Sanitary Inspectors. Further, writ of mandamus has been sought
for directing the respondents to consider and promote the petitioners to
the post of Chief Sanitary Inspector. Thereafter, CM
CM-4915 of 2017 was
filed under Order
Order 6 Rule 17 read with Section 151 CPC for addition of
two more prayers, which read as under: -
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"(x) Issue final notification consequent upon the
issuance of draft notification dated 10.06.2009
(Annexure P-3)
3) against which no objections
were received from anyone.
(xi) grant an other relief/pass any other order as
deemed fit and proper in the facts and
circumstances of the case."
In nutshell, the grievance of the petitioners in the present
writ petition is that the ex-cadre posts of Chief Sanitary Inspectors in
various Municipal Corporations/Municipal Councils be filled up 100%
by promotion from amongst the petitioners' category i.e. Sanitary
Inspectors.
2. The brief facts, as have been pleaded in the petition, are
that the petitioners
petitioner are working as Sanitary/
Sanitary/Chief Sanitary Inspectors.
The services
vices of the petitioners are governed by the Rules known as
"The Punjab Municipal Services
Services (Recruitment and Conditions of
Service) Rules, 1975 (hereinafter referred to as 'the 1975 Rules'). Rule
5(1) of the 1975 Rules deals with the method of recruitment which
provides that recruitment to various categories of posts in a service at
the timee of its initial consideration shall be made by the appointing
authority by absorption of persons already in the service of a municipal
committee in a corresponding post in appropriate category at the time
of constitution of service. Sub-rule
rule (2) of Rule 5 provides that after
filling the vacancies under Sub-rule
Sub (1), the remaining vacancies and
the vacancies which may occur thereafter shall be filled up 50% by
direct recruitment and 50% by promotion on seniority
seniority-cum-merit basis.
The method of recruitment in the 1975 Rules and qualifications for the
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post of Chief Sanitary Inspector as provided in Appendix
Appendix-B read as
under: -
"5. Method of recruitment. - (1) Recruitment to various
categories of posts in a Service at the time of its initial
consideration [shall be] made by the appointment
authority by absorption of persons already in the service
of a Municipal Committee in a corresponding post in
appropriate category at the time of the constitution of the
Service : provided that
at they are found fit by an Authority
appointed by the Government in this behalf for becoming
member of the Service after taking into consideration their
qualifications and service record.
2 (2) After filling in the vacancies under sub
sub-rule (1), the
remaining
ning vacancies and the vacancies which may occur
thereafter shall be filled up in the following manner:
manner:- (i)
fifty per cent by direct recruitment; and (ii) fifty per cent
by promotion on seniority-cum
cum-merit basis : Provided that
if no suitable candidate is available for appointment by
direct recruitment or by promotion the vacancy may be
filled up by transfer or on deputation :
Provided further that if no qualifications have been
specified in the Appendix 'B' for the purposes of filling up
the same by promotion,
otion, that post shall be filled up by the
direct recruitment.
x x x x x
APPENDIX 'B'
Sr. Name of Post Qualification Qualification
No. for direct for
recruitment promotion
x x x x x
23. Sanitary Sanitary Should be a
Inspectors Inspectors municipal employee
Certificate possessing Sanitary
Inspector's
Certificate.
24. Chief Sanitary Sanitary Should be a
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Inspectors Inspectors Sanitary Inspector
Certificate in a Municipal
with an Committee with an
experienc experience of
e for working as such for
minimum a minimum period
period of of three years.
two years
in a
Municipal
Committe
e or a
Departme
nt of the
Governme
nt.
3. The State Government issued notification dated
10.06.2009 (Annexure P-3)
P 3) whereby draft rules to amend the 1975
Rules were issued
issue wherein it was proposed to fill up the post of
Superintending Engineer (Civil) and Chief Sanitary Inspe
Inspector 100% by
promotion from amongst the Sanitary Inspectors who have minimum
period of five years of experience and possessing the Sanitary Inspector
certificate from a Government recognised institution and should be a
municipal council cadre Class-III
Class employee
loyee and objections/suggestions
were invited within a period of 30 days. The said notification reads as
under: -
"[Extract from the Punjab Govt. Gaz., dated the 24th July,
2009]
GOVERNMENT OF PUNJAB
DEPARTMENT OF LOCAL GOVERNMENT
(MUNICIPAL SERVICE CELL)
NOTIFICATON
The 10th June, 2009
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No.3DLG-MSC-09/20423
09/20423 The following draft of rules
further to amend the Punjab Municipal Services
(Recruitment and Conditions of Service) Rules, 1975,
which the Governor of Punjab proposes to make in
exercise of the powers conferred by sub
sub-section (2) of
Section 38 read with Section 240 of the Punjab Municipal
Act, 1911 (Punjab Act No.3 of 1911), and all other powers
enabling him in this behalf, is published, as required by
sub-section
section (5) of Section 240 of the said A
Act for the
information of the persons likely to be affected thereby.
Notice is hereby given that the draft will be taken
into consideration by the Government on or after the
expiry of a period of thirty days from the date of
publication of this notificatio
notification in the Official Gazette,
together with any objection or suggestion, which may be
received by the Secretary to Government of Punjab,
Department of Local Government, Chandigarh from any
person before the expiry of the period so specified with
respect to thee said draft, namely:
namely:-
1. These rules may be called the Punjab Municipal
Services (Recruitment and Condition of Service) Rules,
2009.
2. In the Punjab Municipal Services (Recruitment and
Conditions of Service) Rules, 1975 (hereinafter referred to
as the said
id rules), in rule 5, for sub
sub-rule (2-A) the
following sub-rule
rule shall be substituted namely:
namely:-
"(2-A)
A) Notwithstanding anything contained in sub
sub-
rule(2), the post of the Punjab Municipal Service of
Superintending Engineer (Civil) and Chief
Sanitary Inspector,, shall be filled up 100% by
promotion."
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3. In the said rules, in Appendix 'A', for serial No.25 and
26 and the entries relating thereto, the following shall be
substituted, namely:-
25. Punjab Municipal All Classes Rs.6400-
Service of Chief 200-7000-
Sanitary Inspectors 220-8100-
275-10300-
340-10640
26. Punjab Municipal All Classes 5800-200-
Service of Sanitary 7000-220-
Inspector 8100-275-
4. In the said Rules in Appendix 'B' for serial No.23 and 24
and the entries relating thereto, the following shall be
substituted namely:-
Sr.No. Post Qualification Qualification for
for Direct Promotion
23. Chief -- Should be a
Sanitary Sanitary Inspector
Inspector in Municipal
Council Service
having an
experience of
working as such for
a period of five
years
24. Sanitary Graduate Should be
Inspector with Municipal Council
Sanitary Cadre Class-III
Inspector employee with an
Certificate experience of
from a working as such for
Government a minimum period
recognized of five years and
institution possessing Sanitary
Inspector
Certificate from a
Government
recognized
institution.
D.S. Bains
Principal Secretary to Government of Punjab
Department of Local Government"
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4. It has further been averred that vide orders dated
28.11.2011 (Annexure P-8),
P 8), seven Sanitary Inspectors were promoted
as Chief Sanitary Inspectors and similarly vide another order dated
24.12.2011 (Annexure P-9),
P 9), two Sanitary Inspectors were promoted as
Chief
ief Sanitary Inspectors. It has further been averred that vide
advertisement dated 19.01.2014 (Annexure P
P-10), various posts have
been advertised to be filled in by way of direct recruitment and three
posts of Chief Sanitary Inspectors have been advertise
advertised for filling up
the same by direct recruitment. The said advertisement has been
impugned in the present writ petition on the ground that as per draft
amendment rules dated 10.06.2009, all the posts of Chief Sanitary
Inspectors can only be filled up by promotion.
5. On issuance of notice of motion, short reply to the
amended writ petition has been filed wherein it has been stated as
under: -
"3. That in the reply already filed on the behalf of
respondents, it is clearly stated therein that in the yea
year
2011, there were 9 posts of Chief Sanitary Inspectors
which were to be filled up on the basis of 50:50 quota i.e.
five posts by promotion, four posts by direct recruitment.
However, all the nine posts of Chief Sanitary Inspectors
were manned by promotion from amongst Sanitary
inspectors so that the Office work does not hamper and
subject to the condition that when direct recruits join, the
junior most employees who are promoted against direct
quota, are ordered to vacate those posts. More so, out of 9
posts of Chief Sanitary Inspectors, 3 posts have gone to
Municipal Corporation Cadre on 08.05.2012, leaving only
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06 posts of Chief Sanitary Inspectors in Mun
Municipal Council
Cadre. That as per the present position there are total 12
posts of Chief Sanitary Inspectors
ectors (one recently created on
04.07.2018) and as per rules 06 posts to be filled by
promotion and 06 posts by direct recruitment and the
candidates selected against three posts of Chief Sanitary
inspectors may be given appointment and thus the present
writ petition is devoid of any m
merit and hence be
dismissed. The detailed reply of the respondents is already
on the record and the contents of the same may be read as
part of this additional reply also."
6. The stand taken by respondent
respondent-State is that in the year
2011, there were nine posts of Chief Sanitary Inspectors, which were to
be filled up on the basis of 50:50 quota i.e. five posts by promotion and
four posts by direct recruitment. However, all the nine posts of Chief
Sanitary Inspectors were manned
ed by promotion from amongst Sanitary
Inspectors so that the office work does not hamper and subject to the
condition that when direct recruits join, the junior
junior-most employees who
are promoted against direct quota, are ordered to vacate those posts.
The case
ase was heard by a Co-ordinate
Co ordinate Bench of this Court on
20.01.2023 and the following order was passed: -
"Counsel for the petitioners refers to Annexure P
P-3
to submit that the Draft Rules though not notified being
followed in practice in letter and spirit an
and, thus, now the
respondents cannot be allowed to turn back and say that
the Rules being Draft Rules only would not be binding.
State Counsel to file affidavit of the concerned
Secretary as to whether recruitment to the post of Chief
Sanitary Inspector was being made as per the Draft Rules
or not as alleged by the petitioner.
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Adjourned to 13.09.2023."
7. In pursuance thereto, affidavit
idavit of Sh. Ajoy Sharma,
Secretary to Government of Punjab, Department of the Local
Government, Punjab, Chandigarh, dated 20.09.2023 has been filed
wherein it has been stated as under: -
"4) That, in regard to statement given by the petitioner,
it is respectfully
pectfully submitted that the statement given by the
petitioner is against the actual facts. The answering
department has never applied that draft rules and no
person has been promoted or appointed on the basis of the
said draft rules. It is further submi
submitted that until and
unless the draft rules are finalized they have no
application and the previous rules shall remain in force
until the final notification of the draft rules is made."
8. It is the categoric stand of the respondents that the State
Government
ent has never applied the draft rules and no person has been
promoted or appointed on the basis of the said draft rules and until and
unless the draft rules are finalized, they have no application and the
previous rules shall remain in force until the fina
final notification of the
draft rules is made.
9. Learned counsel for the petitioners contended that as per
draft rules dated 10.06.2009 (Annexure P
P-3), all the posts of Chief
Sanitary Inspectors are required to be filled up 100% by promotion and,
therefore, advertisement dated 19.01.2014 (Annexure P
P-10) whereby
three posts of Chief Sanitary Inspectors to be filled in by way of direct
recruitment have been advertised, is in clear violation of the draft rules
and since the said draft rules have already been acted upon by making
promotions of nine Sanitary Inspectors to the post of Chief Sanitary
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Inspectors vide orders dated 26.11.2011 and 24.12.2011 (Annexures P
P-
8 and P-9),
9), therefore,
therefore, the said advertisement is liable to be set aside qua
the posts of Chief Sanitary Inspectors in the municipal councils/nagar
panchayats. Learned counsel for the petitioners has placed relied upon
the judgment of this Court in Manorma Devi v. State of P
Punjab and
others, 2006(1) S.C.T. 21.
10. On the other hand, learned State counsel submitted that the
draft amendment rules dated 10.06.2009 have not been finalized and all
the promotions/appointments are being made in the municipal councils
in terms of 1975
1975 Rules. Therefore, the claim of the petitioners as raised
in the present petition is liable to be rejected.
11. I have heard learned counsel for the parties and perused
the record.
12. Admittedly, the services of the petitioners are governed by
1975 Rules,
ules, which provide that 50% of the posts of Chief Sanitary
Inspectors are to be filled up by way of direct recruitment and 50% by
way of promotion. An attempt has been made by the State Government
for amending the 1975 Rules by issuing draft rules dated 10.06.2009
known as 'Punjab Municipal Services (Recruitment and Conditions of
Service) Rules, 2009' for filling up the posts of Superintending
Engineer (Civil) and Chief Sanitary Inspector 100% by way of
promotion. Objections/suggestions were invited to tthe said notification
within a period of one month, however, the said draft rules have neither
been finalized nor have been notified. Once the notified Rules of 1975
are already in operation, in the given situation all the
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appointment/promotions have rightly
rightly been made by the respondents in
terms of the said Rules. It is well-settled
well settled proposition of law that in the
absence of notified rules, draft rules can also be acted upon for making
appointment/promotions by treating the same as executive instructions
issued
sued under Article 162 of the Constitution of India. However, the
draft rules cannot be given precedence over the notified rules made
under Article 309 of the Constitution of India. Therefore, the
contention of the learned counsel for the petitioners can
cannot be accepted.
In the additional affidavit, of Secretary to Government of Punjab,
Department of Local Government, Punjab, Chandigarh, dated
20.09.2023, it has been stated that State Government has never applied
the draft rules and no person has been pro
promoted or appointed on the
basis of the said rules and the draft rules have not been finalized and till
the same are finalized by issuing a final notification, previous rules
shall remain in force. A Division Bench of this Court in Gulshan
Nanda v. State of Haryana, 1997(4) SCT 459 relied upon the earlier
judgment of a Division Bench in LPA
LPA-509 of 1968 decided on
16.04.1970 wherein it was held that draft rules have no force of law
though these can be considered to be executive instructions, if a
conscious decision is taken by the concerned authorities that till the
draft rules are published and enforced, the draft rules would be
considered as executive instructions.
13. The judgment in the case of Manorma Devi (supra) cited
by learned counsel for the petitioners
petitioners is not applicable to the facts of
the present case as in the said case there were no notified rules
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prevalent which were finalized under Article 309 of the Constitution of
India and the issue was as to whether the qualification prescribed under
the draft rules is enforceable or not.
14. In view of the above, there is no merit in the present
petition. The same is hereby dismissed with no order as to costs.
Interim order dated 18.02.2014 stands vacated.
(NAMIT KUMAR)
09.05.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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