J.S. Khehar, J.
1. The instant order will dispose of civil writ petition Nos. 11887 of 1994, 15443 of 1994 and 18725 of 1996. In all the aforesaid three writ petitions, the petitioner Prem Singh Sodhi is the sole petitioner. He came to be appointed in the first instance in the Improvement Trust, Faridkot against the post of a Clerk in the year 1974. He was promoted to the post of Accountant in 1976. In 1979 the petitioner qualified the Accountancy Grade 'B' Examination.
2. Having become eligible for appointment as direct recruit to the post of Accountant Grade 'B' the petitioner applied for appointment by way of direct recruitment against the post of Accountant Grade 'B' advertised by the respondents. He was selected and appointed alongwith number of others to the post of Accountant Grade 'B' by an order dated 1.6.1979. A perusal of the order dated 1.6.1979 would reveal that the posts were advertised under Rule 5(2)(i) of the Punjab Trust Service (Recruitment and Conditions of Service) Rules, 1978 (hereinafter to be referred to as the Trust Rules). It further reveals that petitioner's appointment was made by the Director Local Government, Punjab in exercise of the powers conferred on him under Section 17 of the Punjab Town Improvement Act, 1922 read with Rule 5(2)(i) of the Trust Rules. It is, therefore, not a matter of dispute that initial appointment of the petitioner to the post of Accountant Grade 'B' was under the Trust Rules.
3. The petitioner claims to have been absorbed in the municipal service consequent upon the issuance of the order of the Director Local Government, Punjab dated 16.7.1981. A careful examination of the aforesaid order reveals that petitioner was declared surplus from the Improvement Trust, Abohar and, therefore, he was 'adjusted and posted' in the Municipal Committee, Dhuri against a vacant post.
4. The petitioner approached this Court for the first time by filing CWP No. 11887 of 1994 alleging that his claim had not been considered for promotion to the post of Executive Officer though persons juniors to him (in the municipal service) had been considered and promoted as such. By an order dated 12.10.1994, the petitioner was reverted back to the Trust cadre. Reference to the petitioner has been made in para 2 of the aforesaid order wherefrom it is clear that the authorities were of the view that the parent cadre of the petitioner was the Improvement Trust. The order dated 12.10.1994 reverting the petitioner back to the Trust cadre was impugned by him by filing CWP No. 15443 of 1994. By an interim order dated 25.11.1994 passed in the aforesaid writ petition, the operation of the order dated 12.10.1994 was stayed. The aforesaid interim order was affirmed while admitting Civil Writ Petition No. 15443 of 1994 on 9.12.1994. Accordingly, the petitioner continued to discharge his duties in the municipal service.
5. By an order dated 2.8.1996 the petitioner was promoted to the post of Executive Officer. The aforesaid promotion was made subject to the decision of C.W.P. No. 11887 of 1994. Despite the promotion of the petitioner vide order dated 2.8.1996, the Director Local Government Punjab vide order dated 28.11.1996 reverted the petitioner to the post of Accountant Grade-I by asserting that the claim of the petitioner could not be considered for promotion to the post of Executive Officer on account of the fact that he was an employee of the Improvement Trust. The order dated 28.11.1996 was impugned by the petitioner by filing C.W.P. No. 18725 of 1996.
6. From the sequence of facts noticed above as well as from the written statements filed on behalf of respondents the main controversy which requires to be adjudicated upon is whether the petitioner continues to be an employee in the Trust service; or he became a member of the Municipal service consequent upon his adjustment and posting in the Municipal Committee. Dhuri by order dated 16.7.1981. So far as the original appointment of the petitioner against the post of Accountant Grade 'B' is concerned, there can be no dispute, that the same was to the Trust service and was regulated by the Punjab Trust Service (Recruitment and Condition of Service) Rules, 1978. Whether or not the petitioner became an employee of the Municipal Service would be determined from the Punjab Service (Recruitment and Conditions of Service) Rules, 1975 (hereinafter to be referred to as 'the Municipal Rules'). The methods of recruitment to Municipal service are stipulated in Rule 5, the same is being extracted hereunder:-
'5. Method of recruitment.- (i) 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 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 qualification and service record.
(2) After filing in the vacancies under Sub-rule (1), the remaining vacancies and the vacancies which may occur thereafter shall be filed up in the following manner:-
i) fifty percent by direct recruitment; and,
ii) fifty percent by promotion on seniority-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 filing up the same by promotion, that post shall be filed up by the direct recruitment.
(3) The recruitment under Sub-rule (2) (i) shall be made by the appointing authority on the recommendation of a Selection Committee constituted under Rule (4).
(4) The Government may, from time to time, by notification, constitute Selection Committee, consisting of at least three officers of the Government and two non officials who have sufficient experience in the functioning of Urban local bodies and different Selection Committees may be constituted for different categories of posts in a Service:
Provided that at least one of the members of a Selection Committee shall belong to the Scheduled Caste.
(5) The Selection Committee referred to in Sub-rule (4) may associate any person or persons not exceeding two who are specialists or experienced professionals of eminence keeping in view the nature and duties of the post required to be filled. The specialists to be associated shall not be less than the rank of a Superintending Engineer in the case of selection to the cadre of Engineers and not below the rank of a Joint Director of Health Services in the case of selection of medical staff.
(6) While making recruitment under Sub-rule (2), the policy of the Government regarding reservation of appointments of posts for members of the Scheduled Castes and Scheduled Tribes and Backward Classes and for any other category in relation to the Service under it shall be applicable to the services.
7. If the petitioner can successfully establish his recruitment to the municipal service under the Municipal Rules, he can succeed in claiming that he is a substantive employees of the municipal service. We have therefore to determine whether such a claim can be made by the petitioner under Rule 5(2) of the Municipal Rules. There is no pleading whatsoever on the basis of which a finding can be recorded that the petitioner was inducted to the Municipal service as a direct recruit under Rule 5(2)(i) or as a promotee under Rule 5(2)(ii). There is also no material on the record to establish that the petitioner was appointed by way of transfer under the 1st proviso to Rule 5(2)(ii). Infact the appointment either by way of direct recruitment or promotion or transfer under Rule 5(2) of the Municipal Rules necessitates the following of an elaborate procedure postulated under Sub Rules (3) to (6) of Rule 5 of the Municipal Rules. The aforesaid procedure was not followed at the time of the petitioner's adjustment in the Municipal service by an order dated 16.7.1981. Therefore, it is not possible for us to record a finding that the petitioner was ever appointed to the Municipal service under Rule 5(2).
8. Despite the legal position noticed above, it is also clear from the pleadings that the petitioner was required to discharge duties in various Improvement Trusts from time to time after 16.7.1981 i.e. the date from which the petitioner claims to be a Municipal employee. It is clear from the record shown to us in the Court today, that the petitioner discharged his duties from 1984 to 1989 in the Improvement Trust, Bhatinda, from 1989 to 1990 in the Improvement Trust, Moga. For some period in 1991 he was posted in Improvement Trust, Bhatinda and from 1991 to 1992 he discharged duties in the Improvement Trust, Phagwara. After 1992 till the filing of CWP No. 11887 of 1994 the petitioner was engaged in Municipal Committee, Faridkot. In sum and substance from the date of the order dated 16.7.1981 whereby the petitioner was adjusted and posted in the Municipal Committee, Dhuri he rendered almost the entire service in the Improvement Trusts. From 1984 to 1994 other than two years of service, the petitioner rendered the entire service as a Trust employee. Thereafter, continuation of the petitioner in the Municipal service was based on the interim order passed in CWP No. 15443 of 1994 (referred to above). It is therefore, clear that the petitioner continued as a Trust employee right from the beginning. It is also clear that he was never given an impression as if he was permanently absorbed or posted in Municipal service.
9. It would be unfair on our part to not to take into consideration the judgment rendered by the Apex Court in T. Shantharam v. State of Karnataka and Ors., J.T. 1995(2) S.C. 642 which was relied upon by the learned counsel for the petitioner, wherein the Apex Court examined the propriety of absorption of an employee taken on deputation into the lonee department where the employee had rendered long numbers of years continuously by way of deputation. The factual position in the instant cases, (noticed in the facts narrated above) is totally different the judgment relied upon by the learned counsel for the petitioner is clearly inapplicable to the controversy in hand.
10. Having arrived at the conclusion that the petitioner was inducted into Trust service and continued in the said service, we find on infirmity with the action of respondents in promoting persons, from the Municipal service to the post of Executive Officer, without considering he claim of the petitioner. Accordingly we find no merit in the claim raised by the petitioner in Civil Writ Petition No. 11887 of 1994 and the same is, therefore, dismissed. For the same reason we find no force in the claim of the petition in his challenge to the order dated 12.10.1994 by which he was reverted from Municipal service to the Trust Service, accordingly, Civil Writ Petition No. 15443 of 1994 is also dismissed being devoid of merit. Since the petitioner was not at all an employee of the Municipal service, his promotion to the post of Executive Officer Class III vide order dated 2.8.1996 which was recalled by the impugned order dated 28.11.1996 cannot be considered to the suffering from any legal infirmity, since the same was passed after concluding hat the petitioner could not be promoted to posts in the Municipal service as he was a member of Trust service. For the aforesaid reason, we find no merit in C.W.P. No. 18725 of 1996 as well and the same is also accordingly dismissed.
For the aforesaid reasons, all the aforesaid three writ petitions fail and are dismissed.