CWP No.3469 of 2012, -1- CWP No.9337 of 2012 & CWP No.10969 of 2012 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 04, 2013 1. CWP No.3469 of 2012 Manoj Kumar and others .....Petitioners Versus Chandigarh Housing Board and others .....Respondents 2. CWP No.9337 of 2012 Baljinder Singh Teja and another .....Petitioners Versus Chandigarh Housing Board and others .....Respondents 3. CWP No.10969 of 2012 Jitender Singh .....Petitioner Versus Chandigarh Housing Board and others .....Respondents CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE AMOL RATTAN SINGH Present: Mr. Akshay Bhan, Advocate, for the petitioners in CWP No.3469 of 2012. Ms. Harpriya Khaneka, Advocate for the petitioners in CWP No.9337 of 2012. CWP No.3469 of 2012, -2- CWP No.9337 of 2012 & CWP No.10969 of 2012 Mr. Sunil Panwar, Advocate for the petitioner in CWP No.10969 of 2012. Mr. Sanjay Kaushal, Senior Standing Counsel, for U.T., Chandigarh. Mr. R.K. Malik, Senior Advocate with Mr. Ramandeep Singh, Advocate for respondents No.2 to 5 in CWP No.3469 of 2012 for respondents No.2 to 5 in CWP No.9337 of 2012, for respondents No.5 to 8 in CWP No.10969 of 2012 . *** Amol Rattan Singh, J.
CWP No.3469 of 2012, CWP No.9337 of 2012 and CWP No.10969 of 2012 have been clubbed together and are being decided by a common judgment, the issue being the same. The facts are being given separately, details being taken from CWP No.3469 of 2012. CWP No.3469 of 2012
2. The petitioners in this case are seeking a writ of mandamus for cancellation of the allotment of dwelling units allotted under category 'A' to respondents No.2 to 5 by respondent No.1, i.e. the Chandigarh Housing Board, in pursuance to a Scheme, known as the "Self Financing Housing Scheme-2008" (henceforth to be referred to as the "Scheme"), floated by the said respondent. Under the said Scheme, dwelling units were to be allotted, on lease hold basis for 99 years, to the employees of the Chandigarh Administration. The allotment was to be made by a draw of lots. CWP No.3469 of 2012, -3- CWP No.9337 of 2012 & CWP No.10969 of 2012
3. Under the eligibility criteria, it is stated in the brochure (Annexure P-1 with the petition), that the applicant should be a regular employee of the Chandigarh Administration or its Board/Corporation or of the Punjab and Haryana High Court or on deputation with the Chandigarh Administration, on the date of opening of the Scheme or should have retired in the last three years from the date of opening of the Scheme.
Though it is not mentioned anywhere in the pleadings, one of the petitioners is stated to be an employee of the Chandigarh Administration, two of them being employees of the High Court.
In any case, the eligibility of the petitioners for applying for the dwelling unit under the above said Scheme, is not disputed.
4. It is the petitioners' contention that they had applied for dwelling units under category 'A' under the said Scheme, before the date of closing on 29.02.2008 and had also duly deposited the earnest money of ` 1,75,000/- each, along with the application forms.
5. The draw of lots was held on 04.11.2010 and 189 applicants were declared successful, whereas 38 applicants, including the petitioners, were put on the waiting-list. The petitioners were at Sr. No.3, 4, 5 of the said waiting-list and respondents No.2 to 5 were successful applicants at Sr. Nos.3, 27, 65 and 184 respectively. On the date of filing of the petition on 21.02.2012, the petitioners were stated to have moved up in the waiting-list, at Sr. Nos.1, 2 and 3 respectively.
6. After the earnest money was refunded to the petitioners, by cheque, petitioner No.1 is stated to have re-deposited the cheque with the CWP No.3469 of 2012, -4- CWP No.9337 of 2012 & CWP No.10969 of 2012 official respondents, i.e. Chandigarh Housing Board, along with a representation to the effect that he would like to redeposit the cheque in order to keep his claim alive in the above said Scheme, in view of the fact that he was at Sr. No.3 of the waiting-list.
7. One Jitender Singh (petitioner in CWP No.10969 of 2012), stated to be an applicant on the waiting-list, filed an application under the Right to Information Act, 2005, seeking information with regard to the successful applicants, i.e. Respondents No.2 to 5 herein, who are stated to have been working with the Chandigarh Administration, on deputation from the State of Haryana. The information sought was with regard to the fact as to whether these four persons were falling under Group-A or B in their parent cadre, i.e. State of Haryana. The State Information Commissioner, Haryana, responded with letter (Annexure P-6) stating therein that vide Notification dated 07.10.2010, all Government College Teachers have been given the status of Class-I.
8. The said Jitender Singh (mentioned as Jitender Ravish in the RTI applications) then sought information under the Right to Information Act from the Chandigarh Housing Board, as to how respondents No.2 to 5, not being Group-A (Class-I) employees in their parent cadre at the time of closing of the Scheme on 29.02.2008, were considered eligible for Category-A dwelling units in the Scheme. In reply thereto, the information given was that they had been considered in the draw of lots under Category- A, as certified by the Head of the Department in the application forms of these applicants.CWP No.3469 of 2012, -5-
CWP No.9337 of 2012 & CWP No.10969 of 2012
9. Jitender Singh then filed an appeal before the Appellate Authority, Haryana (under the RTI Act), which was returned with the remarks that before the Government Notification dated 07.10.2010, Lecturers in Government Colleges in Haryana were in the Haryana Education Service (II), Group-B service. Similarly, the Chandigarh Administration also replied to yet another application moved by him that as on 01.01.2008, College Cadre Lecturers in Haryana were Group-B employees.
10. Thus, the entire grievance of the petitioners is that respondents No.2 to 5 being Group-B employees in their parent cadre (Haryana), could not have been treated eligible for allotment for three bedroom flats, as the Scheme itself (Annexure P-1), specifically stated that Group-A employees shall be eligible for three bedroom flats, Group-B for two bedroom flats, Group-C for one bedroom flats and Group-D for one room flats. However, employees of a higher group would be eligible to apply for lower category dwelling units.
11. The petitioners, therefore, pray that they being at Sr. Nos.1, 2 and 3 on the waiting-list, they be allotted the Category 'A' flats in place of respondents No.2 to 5, as the latter were not eligible for the same.
12. In the reply filed by the Secretary, Chandigarh Housing Board, it has been stated that respondents No.2 to 5 were on deputation to the Chandigarh Administration since 15.10.1984, 12.04.2005, 12.04.2005 and 28.02.1990 respectively and they were in the selection grade of pay in the CWP No.3469 of 2012, -6- CWP No.9337 of 2012 & CWP No.10969 of 2012 scale of Rs.12000-18300/-, as on the closing date for the receipt of the application forms in the Scheme.
13. It is further stated that as per decision of the Punjab Government dated 08.09.2000 and 08.11.2000 (Annexures R-1 & R-2 annexed along with the reply), all posts in the revised pay-scales effective from 01.01.1996, which carry an entry scale having a maximum of Rs.11660/- or more, would be treated as Group-A posts along with all other posts which already stood in Group-A. (The second letter dated 08.11.2000 is actually with regard to declaration of Gazetted Officer status to those Class-I and II employees who at that time were falling in Class I and II category, but by virtue of revision of pay scales had got placed in Group-B category).
14. Thereafter, on 24.06.2005, the Chandigarh Administration decided, in consultation with the Government of India, to adopt the Punjab Government communication dated 08.11.2000 with regard to classification of posts in the Chandigarh Administration, which hitherto had been classified on the Central Government pattern.
15. The argument of the official respondents, therefore, is that respondents No.2 to 5 being on deputation with the Chandigarh Administration, as long as they were serving with the Administration, would be categorized in Group-A or B according to the classification of posts followed by the Chandigarh Administration and not by the Haryana Government.
16. Preliminary objections have also been taken to the effect that the validity of the waiting-list expired on 03.11.2011, i.e. one year after the CWP No.3469 of 2012, -7- CWP No.9337 of 2012 & CWP No.10969 of 2012 draw of lots was held on 04.11.2010; and that the list of eligible candidates was displayed on the notice board of the Housing Board on 22.10.2010 before the auction, and on 04.11.2010 at the time when draw of lots was held, for calling objections, if any. Despite these opportunities having been provided, the petitioners did not raise any objection to the eligibility of respondents No.2 to 5 under Category 'A'.
17. The official-respondents have further clarified that though respondent No.3 had mentioned Group-B as his category in his application form, and was initially kept as such by the property allotment committee, however in an appeal filed by the said respondent before the Chief Executive Officer, he was ordered to be placed in Group-A in view of the fact that the said applicant was having a similar pay scale as other employees who had applied as Group-A employees and were being treated as such.
18. We have heard learned counsel for the parties.
19. Sh. Akshay Bhan, learned counsel for the petitioners, has reiterated the submissions made in the petition and has placed reliance on a judgment of this Court dated 25.10.2012, passed in a batch of three petitions, titled as Sukhraj Singh and others v. Chandigarh Housing Board and another, Amit Kumar Sharma and others v. Chandigarh Housing Board and another and Narinder Kumar Pandey and others v. Union Territory of Chandigarh and others.
These cases pertain to the same Scheme which is in issue in the present set of cases.CWP No.3469 of 2012, -8-
CWP No.9337 of 2012 & CWP No.10969 of 2012
20. In two of these cases decided on 25.01.2012, the petitioners had claimed that they were eligible to be considered for flats in Group/Category 'B' in view of the revision of pay scales w.e.f. 01.01.2006 and in the third case Group-B category employees had challenged the list of successful candidates who, in pursuance of an interim order in some petitions filed earlier before this Court, were permitted to be considered in Group-B provisionally, the contrary claim being that they belonged to Group-C.
It is pertinent to mention here that the placement in Group-B category, as a result of revision of pay scales w.e.f. 01.01.2006, was in pursuance of notification dated 07.07.2009 issued with retrospective effect from 01.01.2006.
21. The draw of lots was delayed on account of pending litigation and the allegations in those cases were that, had the draw of lots been held on time, subsequent revision of pay scales even with retrospective effect would not have the effect of making Group-C category employees eligible for Group/Category 'B' flats as on the closing date of receipt of application forms in the Scheme, i.e. 29.02.2008. After discussing the case law on the issue, the Division Bench held that the cut off date was crucial to the determination of the category of employees and if, by virtue of a subsequent revision of pay scales even with retrospective effect, the Group-C employees came into Group-B, it would not make them eligible for Category 'B' flats under the Scheme, the last date for which, as already stated, was 29.02.2008.CWP No.3469 of 2012, -9-
CWP No.9337 of 2012 & CWP No.10969 of 2012
22. We do not see how this decision has any bearing on the controversy raised in the present case except to the extent that the Haryana Government declared Lecturers, i.e. the posts held by respondents No.2 to 5, as Class-I/Group-A w.e.f. 07.10.2010. However, as will be presently seen, in our opinion, that would not benefit the petitioners in any manner.
23. Sh. Akshay Bhan, learned counsel for the petitioners, has, submitted that since these successful applicants were only designated as Class- I/Group-A employees w.e.f. 07.10.2010, they would not be eligible for Category 'A' flats in the Scheme, as held in the aforesaid decision of this Court.
24. In our view, the argument is wholly misconceived. We have put a specific query to Sh. Sanjay Kaushal, Senior Standing Counsel for U.T., Chandigarh, as to whether Lecturers of the U.T. Cadre itself (not on deputation from anywhere), are Group- A or Group-B employees. The categoric stand is that they are Group-A employees. Furthermore, once the Chandigarh Administration had adopted the Punjab pattern on 24.06.2005, in consultation with the Government of India, with regard to classification of employees, and Lecturers on deputation from Punjab to the Chandigarh Administration are also falling in the same category, i.e. Group-A, it would be wholly against any principle of service jurisprudence to treat alikes as unalike, inasmuch as the Lecturers working in the Chandigarh Administration, whether its own employees or on deputation from Punjab Government, while being classified as Group-A employees, Lecturers on CWP No.3469 of 2012, -10- CWP No.9337 of 2012 & CWP No.10969 of 2012 deputation from Haryana could not be treated as Group-B employees, even while working under the same Administration.
25. Therefore, the Scheme being a Scheme floated for Chandigarh Administration employees, whether of the Administration itself, or on deputation from Punjab and Haryana, it cannot differentiate between a deputationist of Punjab or Haryana, both being employees of the same cadre while on service with the Chandigarh Administration.
26. In our view, irrespective of the fact that, subsequently, even the State of Haryana has designated College Lecturers to Class-I/Group-A status, the quintessential fact is that Lecturers from Haryana, on deputation with the Chandigarh Administration, were also in a pay scale, recipients of which were declared to be Group-A employees by the Chandigarh Administration and, as such, for the period of their deputation to the Administration, such Lecturers would naturally be treated as Group-A employees, irrespective of their status in their parent cadre.
27. The matter may have been completely different had there been any challenge to the eligibility of deputationists from Punjab and Haryana for a Scheme floated by the Chandigarh Administration for its employees. However, there is absolutely no such challenge as admitted by learned counsel for the petitioners and in any case, at this belated stage, no such challenge could have been raised, 5 years after the Scheme has closed and to which the petitioners were participants without protest. CWP No.3469 of 2012, -11- CWP No.9337 of 2012 & CWP No.10969 of 2012
28. Sh. R.K. Malik, Senior Advocate, appearing for respondents No.2 to 5 has also reiterated the submissions made by Sh. Kaushal, and as observed by us, hereinabove.
CWP No.9337 of 2012
29. In this case, the petitioners have not disclosed as to what position they are holding in the Chandigarh Administration but have challenged the allotment of flats under the above mentioned Scheme, to respondents No.2 to 10, who are again all deputationists to the Chandigarh Administration from the State of Haryana. Respondents No.2, 3, 4 and 5 are College Lecturers, respondents No.6, 7 and 9 are Librarians and Respondents No.8 and 10 are Principals in Government Schools. Respondent No.10 is stated to have been repatriated to her parent State, as per Annexure P-6 filed with the writ petition.
30. The petitioners have raised the same basic issue as in CWP No.3469 of 2012. In addition, it has been stated that Librarians belong to Group-C in the parent State of Haryana, as such, in any case, they could not have been treated as Group-A employees in the Chandigarh Administration. They have also relied upon Annexure P-16 which is a reply from the Central Public Information Officer-cum-Registrar, Education (Colleges), Chandigarh Administration, by which it was informed that as per the Punjab Subordinate Educational Services Rules, 1937, the post of Librarian is treated as a Group-C post and that new recruitment rules for Librarians are being framed by the Chandigarh Administration in consultation with the UPSC.CWP No.3469 of 2012, -12-
CWP No.9337 of 2012 & CWP No.10969 of 2012
31. Learned counsel for the petitioners in this case, as well as in the writ petition discussed earlier, i.e. CWP No.3469 of 2012, have also placed strong reliance on a letter (Annexure P-14 annexed with the present petition), which is again a reply from the Central Public Information Commissioner-cum-Registrar, Education (Colleges) stating that deputationists are governed by their parent States' Service Rules.
32. The Chandigarh Housing Board has not filed any separate reply in this case and had adopted the reply filed in CWP No.3469 of 2012, as recorded in order dated 23.07.2012.
33. The other respondents No.2 to 5, 6, 7, 9 and respondent No.8 have all filed separate replies, whereas respondent No.10 has not filed any reply.
34. Sh. Sanjay Kaushal, learned Sr. Standing Counsel for U.T., Chandigarh, has been confronted by us specifically with regard to the letter dated 12.01.2012 stating that deputationists are governed by their parent State Service Rules. He has submitted that this would pertain to the service conditions of deputationists as far as pay scales, pension etc. are concerned, but not with regard to classification of posts, which in any case, cannot be separate for deputationists who are performing the same duties and form part of the same cadre as employees of the Chandigarh Administration itself. Thus, the argument would be that, classification of posts on the basis of pay scales is completely different to service conditions based on Service Rules governing a cadre.CWP No.3469 of 2012, -13-
CWP No.9337 of 2012 & CWP No.10969 of 2012
35. Further, such classification of posts, being based upon pay scales, and allotment of houses under the Scheme being related to such classification/categorization of posts in Group-A, B, C and D, service rules governing deputationists in their parent cadre, do not come into the picture.
36. We have also seen the reply filed by respondent No.8, in which it is stated that as per his terms of deputation, leave travelling concession and accommodation shall be according to the Rules as applicable to the Chandigarh Administration employees.
37. In our opinion, service conditions of a cadre of employees while on deputation, are different to grant of particular pay scales, admissible earned leave, pension, etc., which would be applicable as per the services rules governing the cadre, in the parent State. Therefore, allowances and perquisites, while on deputation, are applicable as per the State/Organization to which a deputationist is posted, whereas the substantive service conditions which govern an employee are as per the service rules that govern his/her service in the parent cadre.
38. Similarly, a Scheme pertaining to housing allotment, whether on lease hold basis (as in this case) or outright sale basis, has nothing to do with the Service Rules governing the conditions of service of an employee in his parent cadre. Hence, we find no contradiction in the information supplied under the RTI Act and the stand taken by the Housing Board in its reply to this petition.CWP No.3469 of 2012, -14-
CWP No.9337 of 2012 & CWP No.10969 of 2012
39. On the issue of Librarians being Group-C employees in their parent cadre (Haryana), respondents No.6, 7 and 9 have first relied upon an order of the Chandigarh Administration in its Department of Home, dated 08.11.2005, classifying the post of Librarians in the Chandigarh College of Architecture as a Group-A post in the pay scale of Rs.8000-13500, along with some other posts mentioned in the said letter. Further, in the reply under the RTI Act to one Ms. Jaspal Kaur, General Secretary, Chandigarh Librarians Association, it has been stated that as per the Department of Personnel, Chandigarh Administration's, letter dated 24.06.2005, the post of Librarian is a Group-A post. This letter dated 24.06.2005 is the same by which the Chandigarh Administration adopted the Punjab Government letters dated 08.09.2000 and 08.11.2000 with regard to classification of posts in the Chandigarh Administration, on the basis of pay scales. Hence, if by virtue of pay scales Librarians fall within the Group-A category, as per the classification adopted by the Chandigarh Administration, we do not see any reason why deputationists to these posts from Haryana, who are also falling in the same category by virtue of pay scales, should be ousted from being considered as eligible for the allotment of Category 'A' dwelling units, i.e. 3BHK flats as per the Scheme of 2008.
CWP No.10969 of 2012
40. In this case, the petitioner is an Assistant Professor in the Higher Education Department in the U.T., Chandigarh (formerly known as 'Lecturer'), and has challenged the allotment of flats on Lease Hold Basis as per the Scheme in question, to respondents No.5 to 8, i.e. the same CWP No.3469 of 2012, -15- CWP No.9337 of 2012 & CWP No.10969 of 2012 respondents who are impleaded as respondents No.2 to 5 in CWP No.3469 of 2012(College Lecturers/Assistant Professors on deputation from Haryana to the Chandigarh Administration). The same grounds as have been raised in CWP No.3469 of 2012 have been raised in this particular case also.
41. The reply filed in that case has also been adopted by the Chandigarh Housing Board as also by the other official respondents. Respondents No.5 to 8 have filed the same reply, in material particulars, as has been filed by them as respondents No.2 to 5 in CWP No.3469 of 2012.
42. After hearing learned counsel for the parties and in view of what we have observed herein above, we find no merit in the present writ petitions, as the classification of posts in the Chandigarh Administration is based upon a letter dated 24.06.2005 (Annexure R-3 annexed with the reply of Chandigarh Housing Board in CWP No.3469 of 2012), by which the Punjab Government letters dated 08.09.2000 and 08.11.2000 were adopted for the purpose of such classification of posts, which in turn, are based upon pay scales and not upon individual service rules governing different cadres of employees in their parent cadres, i.e. Punjab or Haryana or U.T., Chandigarh.
43. We are of the opinion that such classification has been made on a reasonable basis and equates employees belonging to a particular group of pay scales into categories 'A', 'B', 'C' and 'D', so as to ensure parity of treatment for various purposes, such as housing, leave travel concession and other allowances, benefits and perquisites. Thus, the allotment of flats in a particular scheme as per categorization according to pay scales, is a CWP No.3469 of 2012, -16- CWP No.9337 of 2012 & CWP No.10969 of 2012 reasonable classification based on intelligible diffrentia, and the petitioners' contention, based on categorization of posts of deputationists in their parent State (Haryana), even when they are on such deputation and working together with deputationists from Punjab and with the employees of the Chandigarh Administration, cannot be accepted.
44. In view of what we have observed above, these writ petitions fail and are dismissed, with no order as to costs.
(AMOL RATTAN SINGH) JUDGE 04.03.2013 (SATISH KUMAR MITTAL) vcgarg JUDGE