Punjab-Haryana High Court
Anil Kumar And Others vs State Of Punjab And Others on 7 February, 2014
Bench: Jasbir Singh, Harinder Singh Sidhu
LPA No.200 of 2014(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA No.200 of 2014(O&M)
Date of decision: 07.02.2014
Anil Kumar and others
.....Appellants
versus
State of Punjab and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Harinder Singh Sidhu
Present: Mr.H.K.Brinda, Advocate for the appellants
Jasbir Singh, J. (Oral)
CM No.513 of 2014 This application has been filed for condonation of 32 days delay in filing the appeal. The application is accompanied by an affidavit. In view of reasons mentioned therein, it is allowed and delay stands condoned.
LPA No.200 of 2014(O&M)
Private respondents Nos.3 to 10 filed CWP No.5575 of 2001 with a prayer that the seniority list showing the appellants as senior to them be quashed and respondent No.1 be directed to re-frame the seniority list as per Rules 8 and 15 of the Revenue Patwaris Class-III Services Rules, 1966 (in short the Rules). It was specifically alleged by them and it is also not in dispute that respondent Nos.3 to 10 joined service prior to the date of joining of the appellants.
The learned Single Judge allowed their writ petition. Seniority list was quashed by stating that a conjoint reading of Rules 8 and 15 of the Krishan Gopal 2014.02.17 11:27 I attest to the accuracy of this order High Court Chandigarh LPA No.200 of 2014(O&M) 2 Rules, makes it very clear that merit list prepared by the Selection Committee cannot be made basis for determining seniority of the private respondents and the appellants.
Before proceeding further, it is necessary to reproduce the provisions of Rules 8 and 15 of the Rules, hereunder:-
"8. Qualifications for appointment (1) No Patwari candidate shall be eligible for appointment to the Service unless he qualifies the Patwar examination after attending the Patwar School for a minimum period of one year, and after passing the examination undergones such practical field training for a period of six months as may be specified by the Collector. (2)If the candidate fails to pass the Patwar examination within a period of 3 years from the date of his acceptance as candidate his name shall be struck off from the register of candidates.
(3)Nothing in this Rule shall apply to a candidate who has already passed the Patwar Examination before he is accepted as a candidate and has also undergone practical field training as specified in sub rule (1)".
15. Seniority : The seniority inter se of members of the service in each cadre shall be maintained district wise and shall be determined by the length of continuous service on a post in that cadre:
Provided that in the case of two or more members appointed on the same date, their seniority shall be determined as Krishan Gopal 2014.02.17 11:27 I attest to the accuracy of this order High Court Chandigarh LPA No.200 of 2014(O&M) 3 follows:-
a) a member recruited by direct appointment shall be senior to a member recruited otherwise;
b) a member appointed by promotion shall be senior to a member appointed by transfer.
c) in the case of members appointed by promotion or transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred; and
d) in the case of members appointed by transfer from different cadres, their seniority shall be determined according to pay preference being given to a member who was drawing a higher rate of pay in his previous appointment, if the rates of pay drawn are also the same then by their length of service in those appointments and if the length of service is also the same, an older member shall be senior to a younger member.
Note (1) This rule shall not apply to persons appointed on purely provisional basis pending their passing the qualifying tests.
Note(2) In the case of members whose period of probation is extended under rule 14, the date of appointment for the purpose of this rule shall be deemed to have been deferred to the extent the period of probation is extended." Rule 8 deals with qualification to be possessed by a candidate Krishan Gopal 2014.02.17 11:27 I attest to the accuracy of this order High Court Chandigarh LPA No.200 of 2014(O&M) 4 for entry in service as a Patwari. It is specifically stated that no Patwari candidate shall be eligible for appointment in service unless he qualifies the Patwar examination after attending the Patwar School for a minimum period of one year. The candidate further needs to undergo practical field training for a period of six months as may be fixed by the competent authority. Rule 8 sub-rule 2 further provides that if the candidate fails to pass the Patwar examination within a period of three years from the date of his acceptance as candidate, his name shall be struck off from the register of candidates. In a way, it is said that so long as one does not pass Patwar examination and does not clear the field training, he cannot be given appointment. If after preparing tentative list of candidates who are to undergo Patwar examination and field training, somebody fails to pass the above said tests, his name shall be struck off from that list. Until and unless the Patwari candidate passes the test and field training, he cannot be deemed to have been appointed against the post in question. There may be many instances when some Patwari candidate may be higher in merit list, however, he may fail in the first attempt and pass it out after others who were lower in merit when candidate list was prepared. In view of that, in Rule 15 of the Rules, it was specifically stated that seniority list inter-se of members of service in each cadre shall be maintained district wise and shall be determined by the length of continuous service on a post in that cadre.
Admittedly, respondents Nos.3 to 10 passed the test and joined the post prior in time than the appellants.
The learned Single Judge by noting above said facts has rightly allowed writ petition filed by respondent Nos.3 to 10 by observing as Krishan Gopal 2014.02.17 11:27 I attest to the accuracy of this order High Court Chandigarh LPA No.200 of 2014(O&M) 5 under:-
"6. The point is wholly missed by the State when it pleads for re-fixation of seniority on the basis of inter se merit at the time of recruitment to the post of Patwari. If the rules provide for such an assessment and a seniority list had been drawn on the basis of such merit on recruitment, there would be no difficulty. On the other hand if after the initial requirement the persons are put through a training course that contained a further stumbling block for confirmation and the rules also provided that seniority will be assigned on the basis of length of service, there is no question of allowing the State to re-fix the clock and re-assign the seniority on a whimsical consideration that some private respondents were to be placed higher in the order of seniority. In this case if the seniority positions had been fixed from the length of service as relevant in terms of Rule 15 and so notified on three occasions between 1981 to 1996, a direction of a subordinate court for allowing for a seniority list to be re-fixed for Beant Singh cannot affect rights of all other persons who were not parties. The State failed to note that Civil Court decree cannot affect persons who were not parties. While the State could be bound as regards a claim made by Beant Singh, it cannot be so carried out as to affect the rights of persons who were not made parties. Beant Singh must suffer by his own frame of suit in not impleading persons who would be affected and could be not in a position to point out that even Krishan Gopal 2014.02.17 11:27 I attest to the accuracy of this order High Court Chandigarh LPA No.200 of 2014(O&M) 6 civil suit cannot affect their rights. This is precisely what has been done now by re-writing the seniority list after two decades by a direction of a civil court when they were not themselves parties.
7. The State will also be barred by re-fixing the seniority after more than 20 years from the time when they were inducted in service. The case must also succeed for the inability of the State to bring out on a simple question of fact which was raised in the writ petition. When the petitioner contended that the alleged merit consideration for the private respondents could not be justified without proof that the private respondents had higher merit consideration, the State was bound to produce the documents to justify their placement above the petitioner. There is no authenticated merit list which should have been prepared by the Selection Board at the time when the selection was made.
8. The State has a grievance that this Court has not understood the point urged by the counsel that seniority list was drawn on the basis of date of joining and therefore when the State was correctly setting out the seniority positions, the petitioners cannot refer to the date of joining as constituting the length of service. There is no misunderstanding on the point urged by the counsel for the State and I find that if the seniority list which was drawn in the year 1981 and later affirmed from the list prepared in the year 1994 to 1996, it Krishan Gopal 2014.02.17 11:27 I attest to the accuracy of this order High Court Chandigarh LPA No.200 of 2014(O&M) 7 cannot suddenly be revised two decades later and revert persons who have secured appointment on the basis of such seniority list and joined their promotions 6 years prior to reversion order."
We are of the opinion that the view taken is perfectly justified. After selection by the Selection Committee, the applicant will remain only a candidate, he will be inducted in service only when he passes Patwari test after attending school and field training. In view of that, rightly it was said that length of service shall be looked into to determine seniority inter-se members of the cadre.
The appeal stands dismissed.
(Jasbir Singh)
Judge
07.02.2014 (Harinder Singh Sidhu)
gk Judge
Krishan Gopal
2014.02.17 11:27
I attest to the accuracy of this
order
High Court Chandigarh