Punjab-Haryana High Court
Shri Rishi Pal Saini vs State Of Haryana And Others on 30 November, 2012
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
CWP No. 1462 of 1995 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 1462 of 1995
Date of Decision:- November 30th, 2012
Shri Rishi Pal Saini ..............PETITIONER(S)
vs.
State of Haryana and others ...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. H.S. Gill, Sr. Advocate,
with Mr. A.S. Gill, Advocate,
for the petitioner,
Mr. Saurav Mohunta, DAG, Haryana,
for respondents no. 1 to 3.
Mr. I.D. Singla, Advocate,
for respondent no. 4.
G. S. SANDHAWALIA, J.
1. The present amended civil writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari for quashing the order dated 10.03.1992 (Annexure P-8) whereby the petitioner was reverted as Junior Scale Stenographer and order dated 05.12.1994 (Annexure P-11) whereby respondent no. 4-Surinder Singh was promoted as Personal Assistant. A writ in the nature of mandamus be issued directing respondents no. 1 and 2 to consider the petitioner for promotion as Personal Assistant w.e.f. the date respondent no. 4 had been promoted with all consequential benefits. Prayer CWP No. 1462 of 1995 2 has also been made to restore the seniority of the petitioner as originally existed and to treat him as Senior Scale Stenographer from the date of his initial promotion i.e. 20.02.1991 and his having continued on the said post continuously without any break and with all consequential benefits.
2. The pleaded case of the petitioner is that advertisement was issued in March, 1995 by the Haryana State Subordinate Service Selection Board-respondent no. 3 (hereinafter referred to as the 'Board'). The applications were invited for the post of Junior Scale Stenographers in English and Hindi. The petitioner had submitted an application for the post of Junior Scale Stenographer (English) and a written test was held in the month of May, 1986 in which more than 1000 persons had participated. The Board had prepared a merit list and the petitioner topped the merit list of about 200 selected candidates and he was placed at Sr. No. 1 in merit. The Board recommended the name of the petitioner and two others as Junior Scale Stenographers to the Director, Social Welfare Department vide letter dated 08.12.1986 and in the order of merit, the petitioner was mentioned as Sr. No. 1.
3. Respondent no. 4-Surinder Singh had also submitted an application for the post of Junior Scale Stenographers (Hindi) and he was selected and his name was placed in the merit list at Sr. No. 66. The Board recommended his name also for appointment as Junior Scale Stenographer to the Director, Social Welfare Department, Haryana vide letter dated 08.12.1986. After the receipt of the recommendations, the antecedents of the petitioner were got verified and he was medically examined and this process consumed 5-6 months and the petitioner was appointed by the Director vide letter dated 24.06.1987 in the scale of 1200-30-1560-EB-40- CWP No. 1462 of 1995 3 2040. Since respondent no. 4 was already in service at the time of his selection, therefore, his antecedents were not to be verified and his medical examination was not to be conducted and he joined the department earlier than the petitioner. His appointment letter was issued on 23.02.1987. That on the basis of the order of merit prepared by the Board of selected candidates, the office of the Director, Social Welfare Department prepared a joint tentative seniority list of the Junior Scale Stenographers of Hindi and English. In that the name of the petitioner was shown at Sr. No. 1 while that of respondent no. 4 was shown at Sr. No. 2 and on the basis of the said seniority list, the petitioner was promoted as Senior Scale Stenographer vide order dated 20.02.1991 by the Director, Social Welfare, Haryana. Respondent no. 4, who was also in the zone of consideration, submitted a representation after 10 months, aggrieved against the promotion of the petitioner and respondent no. 2, without issuing any notice of the said representation, sought advise of the Chief Secretary, Haryana, who gave advice on 02.03.1992 that since Surinder Singh-respondent no. 4 joined on 03.03.1987 and the petitioner's appointment order was of June 1987 and the petitioner joined on 26.06.1987, therefore, Surinder Singh was to be senior. It was further mentioned in the advice that as per Service Rules, the seniority was to be determined on the basis of continuous length of service. The petitioner pleaded that the advise of the Chief Secretary was in violation of the Government instructions issued on 05.04.1971 (Annexure P-6) according to which, seniority was to be determined according to the date of recommendation of Direct Recruits. Respondents no. 1 and 2 did not follow the instructions dated 24.11.1962 that where there is dispute regarding the inter se seniority, the same will be as per the order of merit CWP No. 1462 of 1995 4 suggested by the Board. The petitioner had been reverted on the basis of the said advise of the Chief Secretary from the post of Senior Scale Stenographer to that of the Junior Scale Stenographer on 10.03.1992 and without hearing the petitioner inspite of the fact that he had represented in April 1992. He had submitted another representation dated 25.10.1994 and the matter was referred to the Board and it vide letter dated 03.01.1995, gave advise that the merit list was prepared by the Board and the petitioner was at Sr. No. 1 and Surinder Singh was at Sr. No. 3.
4. The petitioner was thereafter again promoted as Senior Scale Stenographer w.e.f. 01.06.1993, however, respondent no. 4, due to his strenuous pressure, got a promotion order as Personal Assistant and the petitioner was ignored from promotion due to his illegal change in seniority as Junior Scale Stenographer. The matter was thereafter again referred to the Chief Secretary and the matter remained pending and thereafter, the same was reiterated vide endorsement dated 12.12.1995. The Board had, during the pendency of the writ petition, informed respondent no. 2 vide letter dated 16.08.1995 that separate merit for English and Hindi Stenographers was prepared and on that basis, recommendations were sent. The Board had sent a common merit list of Steno-Typist of English and Hindi to respondent no. 2 on 13.03.1993 and on 26.01.1995 and, therefore, it clearly showed that separate merit list of English and Hindi Stenographers was not maintained. In fact, there was a common cadre of Junior Scale Stenographers and the same was the decision with regard to the cadre of Senior Scale Stenographers of English and Hindi. Accordingly, it was pleaded in the grounds that as per the Haryana Social Welfare and Relief Association Service Group (C ) Rules 1983, seniority was to be as per the CWP No. 1462 of 1995 5 length of continuous service and the proviso provided that in cases of members appointed by direct recruitment, the order of merit would be determined by the Board or any other recruiting authority and shall not be disturbed in fixing the seniority.
5. In the written statement filed by respondents no. 1, 2 and 4, it has been pleaded that the writ petition suffered from inordinate delay and laches since the petitioner was reverted from the post of the Senior Scale Stenographer on 10.03.1992 and the petitioner filed the present petition in the year 1995. The seniority was determined with reference to the date of issue of the Board's recommendations and since the name of the respondent was recommended by the letter of the Board bearing No. SSSB (Confd)- 86/134 dated 08.12.1986 whereas the name of the petitioner was recommended by letter bearing No. SSSB (Confd)-86/144 dated 08.12.1986. The petitioner's letter had been dispatched by the Board after the dispatch of letter of recommendations of the name of respondent no. 4 and, therefore, the petitioner could not claim seniority over respondent no.4.
6. The averments regarding the joint tentative seniority list and that the petitioner was at Sr. No. 1 was admitted. It was further admitted that as per the advise of the Chief Secretary, respondent no. 4 was promoted to the post of Senior Scale Stenographer. The instructions dated 24.11.1962 were pertaining to case of direct recruits by Punjab Public Service Commission and by way of transfers and was not applicable. As per instructions dated 05.04.1971 which were applicable, the candidate whose name has been recommended by the Board/Commission earlier was senior and since the recommendation of respondent no. 4 having been made earlier, he was made senior by the Chief Secretary and, therefore, the advise CWP No. 1462 of 1995 6 did not violate any government instructions. The averment that the petitioner had submitted any representation in April 1992 and in April 1993 was denied. However, it was further submitted that the representation dated 24.10.1994 (Annexure P-9) was the first representation. There were no government instructions to merge the seniority of candidates from the post of Stenographers of separate languages which had been done by respondent no. 3. The seniority was to be determined only with reference to the date of issue of Board's recommendations in accordance with government instructions dated 16.03.1962 since there were no notified Class III Service Rules so far. Accordingly, respondent no. 4 was senior to the petitioner. The matter had again been referred to the Chief Secretary to give further advise keeping in view the Board's advise dated 03.01.1995. The petitioner had been re-promoted as Senior Scale Stenographer w.e.f. 01.06.1993 as there was a vacancy and he was next junior to respondent no.3 who was already promoted as Senior Scale Stenographer on 10.03.1992. That on receipt of the representation dated 25.10.1994, the matter was referred to the Board whose reply was received and the matter was referred to the Chief Secretary. The Board, vide the letter dated 03.01.1995, fixed the inter se seniority of Junior Scale Stenographers Hindi and English showing the petitioner as senior to respondent no. 4 and it was asked to clarify that on which grounds inter se seniority of candidates of different languages had been prepared. The Board had clarified vide letter dated 16.08.1995 that the seniority of Junior Scale Stenographers of different languages could not be determined inter se for joint seniority. A common merit list had been sent later and the Board had been asked on what grounds common list of separate languages had been prepared.
CWP No. 1462 of 1995 7
7. In the case of the petitioner, the Board had recommended the name of the petitioner and respondent no. 4 in different lists of Hindi and English and, therefore, the advise of the Chief Secretary being the highest administrative authority was applicable by which Surinder Singh- respondent no. 4 had been granted the seniority. The petitioner had topped the merit list of the Junior Scale Stenographer (English) and could not be appointed as Junior Scale Stenographer (Hindi) and he could not claim seniority. Clause (ii) of the grounds pertaining to the concerned Rules was admitted.
8. Respondent no. 4 in his written statement, also took the plea of delay and latches. It was further pleaded that separate merit lists under different categories have been prepared for different posts. The answering respondent having been appointed on 23.02.1987 and joined on 03.03.1987 was liable to be declared senior on the basis of the continuous length of service as there were no service rules existing in the department governing the service rules of its employees. As per the decision of the Apex Court, in the absence of service rules, continuous length of service was the criteria for the purpose of determining seniority. The advise rendered by the Chief Secretary was based on well settled propositions of administrative law and in the absence of the Rules, the same was to prevail. The Chief Secretary had, vide letter dated 02.03.1992, declared respondent no.4 as senior on the well settled proposition in administrative law that in the absence of rules, continuous service shall be the determining factor of seniority. Accordingly, the reversion order of the petitioner and the promotion order of respondent No.4 were passed on sound basis. The petitioner and the answering private-respondent could not have been placed in the joint merit CWP No. 1462 of 1995 8 list since the examination had been held separately and the results had been declared separately and the names of the successful candidates had been recommended to the Department separately.
9. The advertisement was for separate categories of Hindi Stenographers and English Stenographers and the two categories could not be clubbed together for determining inter se merit and both the categories had to be shown differently. As per advertisement, respondent No.4 had applied as Hindi Stenographer under Category No.IV whereas petitioner had applied as English Stenographer under Category No.V. Hence both were separate and distinct from each other. As regards tentative seniority list of the Junior Scale Stenographers of Hindi and English, it was replied that respondent No.2, under mistaken belief, had placed the petitioner higher in merit as English Stenographer and made him senior to respondent No.4 who was at No.66 as Hindi Stenographer irrespective of the earlier date of joining of respondent No.4 in the Department than the petitioner. Respondent No.4 had made a representation to respondent No.2 claiming himself to be senior on the basis of date of joining having a separate and distinct merit list than the petitioner and respondent No.4, and on the advice of the Chief Secretary, he had been granted the said relief. The instructions showed if there was common merit in one selection, then seniority shall be made as per the merit. Due to separate selection and separate mode of determination of the seniority in the cadre made the instructions were not applicable. The need of hearing the petitioner did not arise as there could not have been a counter-view and it would have been a mere empty formality which would not persuade the authorities to take a contrary decision. The then Chief Secretary had reiterated his views, and therefore, CWP No. 1462 of 1995 9 the principles of natural justice were not violated. It was also averred that the Board had no authority under law, rule or instructions, to determine inter se seniority of the employees in their cadre. The respondent was promoted as Personal Assistant on the basis of the revised seniority list. The decision taken by the Board in the year 1993/95 for joint seniority list could not be made applicable to the selection made in the year 1986. There were no rules or instructions till date which could fortify the claim of the petitioner and his claim was liable to be rejected. There were no service rules governing the service of the petitioner as well as the answering respondent, inter se their seniority, hence, the reproduction of the rules by the petitioner was ipsit dixit of the petitioner. The rules were not in force in the Department and even if they were to be taken as basis for determination of the seniority, it showed that the length of continuous service to any post was to be applied and respondent No.4 had joined earlier to the petitioner. The instructions talked about one merit list and did not elaborate upon the merit of the different categories with a different selection process and different standard of knowledge and efficiency. The Board was not to determine the seniority amongst the cadre and was only to determine the merit. The seniority was to be determined by the Department and they, under the mistaken belief, had shown the petitioner at S.No.1, who was lower to him and was junior.
10. The petitioner filed replication to the written statement filed by respondent No.1 & 2. It was denied that there was any delay in filing the writ petition. It was pleaded that the petitioner had filed the writ petition after his reversion. In response to his representation, the Department, vide letter dated 27.10.1994, had referred the matter to the Board. The Board CWP No. 1462 of 1995 10 had given advise, vide letter dated 03.01.1995, fixing the inter se seniority of the petitioner at No.1. Respondent No.2, while deciding the representation of the petitioner, had passed order dated 05.12.1994, promoting respondent No.4 as Personal Assistant and thus, the petition had been filed in January, 1995 and there was no delay. Respondent No.2 had shown the petitioner at S.No.1 in the tentative seniority list and that of respondent No.4 at S.No.2, keeping in view the merit of the petitioner and it was arbitrarily changed on the basis of the representation of the respondent without giving any notice. The Board had reiterated that the petitioner was senior as per the instructions of the Government and the advise of the Board was binding. The defence that seniority was to be determined on the basis of dispatch number was a simply amazing and baseless. Simply by putting dispatch number, a candidate with a lower merit, could not be made higher and the seniority would be in the hands of the dispatcher and not with the Board. The recommendations had been sent on the same date, i.e., on 08.12.1986 and the advise of the Chief Secretary was violative of the Government instructions as contained in Annexures P-4 to P-7. The said advise was binding but respondents No.1 & 2 failed to act upon it. No show cause notice had been given before passing the order of reversion and it had been submitted by the official respondents that the representation of the petitioner was still under consideration. Ultimately, orders had been passed, rejecting the case and thus, the amended writ petition was filed.
11. The writ petition was admitted for hearing on 29.07.1996 and prior to that, additional affidavit dated 27.10.1995, of the Director, Women & Child Development, Haryana, had also been filed on behalf of respondent No.2 along with which, letter dated 16.08.1995 was appended CWP No. 1462 of 1995 11 which is addressed by the Board to the Director, Women & Child Development, Haryana. As per this affidavit, it has been clarified that that the Board was asked to determine the inter se seniority of the petitioner and respondent No.4 vide a letter dated 17.12.1994 and vide a letter dated 03.01.1995, Board had declared the petitioner at merit No.1 over Surinder Singh. There were separate criteria for Hindi and English stenography test and the Board took the test separately and maintained separate merit list and sent recommendation separately and, therefore, the Board was again asked to clarify inter se seniority and the merit list of the candidates was prepared vide letter dated 21.02.1995 and 14.08.1995. The Board, vide letter dated 16.08.1995, had informed that separate merit for Hindi and English was maintained and recommendations were sent on the basis of the merit obtained by the candidates in their respective cadre and the two categories of Hindi and English Stenographers cannot be put into common merit list. However, on the request of the Department, the Board had given the inter se seniority list putting the petitioner at No.1 and Surinder Singh below him. The lists of 225 cadidates of Junior Scale Stenographers (English) and 281 candidates of Junior Scale Stenographers (Hindi) were also appended along with the said affidavit.
12. Counsel for the petitioner has submitted that the petitioner was at S.No.1 at the tentative merit list and as per Rule 11, the seniority was to be determined by the order of merit in the cases of direct recruits. The Board, vide letter dated 03.01.1995, had reiterated the advise and shown respondent No.4 at S.No.66 but the Chief Secretary had given the opinion to the contrary and reiterated his views subsequently. It is further submitted that without hearing the petitioner, the orders of reversion had been passed CWP No. 1462 of 1995 12 and, thereafter also, joint seniority list had been given by the Board of Hindi & English Stenographers in the year 1993 and in the year 1995.
13. Counsel for the State, on the other hand, defended the said action on the ground that the petitioner had joined subsequently, and therefore, the date of joining was to be seen as the basis and that the length of service was the sole consideration. The rules had not been notified at that point of time and they only came into force later.
14. Counsel for the private respondent submitted Hindi & English Stenographers were of two different categories and placed reliance upon the letter of the Board dated 16.08.1995 and submitted that in the year 1986, separate lists were sent regarding the two different categories and pressed forth the issue of limitation.
15. After hearing counsel for the parties, the following questions arise for determination, inter se the parties:
(i) Whether the petition is liable to be dismissed on the grounds of delay and latches?
(ii)Whether the principles of natural justice had been violated while reverting the petitioner to the post of Junior Scale Stenographer?
(iii)Whether the petitioner was entitled for declaration on the ground that he is senior to respondent No.4 on the basis of merit/result of the test conducted by the Board and if so, whether respondent No.4 had been wrongly promoted as Personal Assistant instead of the petitioner?
16. On the issue of delay and latches, the question need not detain this Court for very long. The first impugned order by which the petitioner is aggrieved is dated 10.03.1992 whereby he was reverted and respondent No.4 was promoted inter se each other. It is on record and admitted by the State that thereafter also, the petitioner was again promoted w.e.f. 01.06.1993 as Senior Scale Stenographer. Thereafter, the petitioner is CWP No. 1462 of 1995 13 alleged to have represented in April, 1992, though there is no representation on record and this fact is denied. Another representation is alleged to have been made in April, 1993 which is also denied. The representation dated 25.10.1994 is admitted and the plea taken by the State at that point of time was that it was under consideration of respondents No.1 to 3. Perusal of the representation would go on go show that the petitioner had been reverted without giving any opportunity of hearing and even in the said representation, it was mentioned that the petitioner had represented against these orders but no action had been taken by the Department. The grouse of the petitioner in the said representation was that the Board had fixed the inter se seniority and the petitioner stood at merit No.1 and thus, on the basis of the said seniority, he had been promoted, initially on 20/21.02.1991. Since no action had been taken on the representation when the petitioner's case was at motion stage, a Division Bench of this Court had noticed that the State Government had taken time on the ground that the Government was taking into consideration instructions received from the Board to give necessary relief to the petitioner. Thereafter, it was noticed that in the written statement, the plea had been taken that the Chief Secretary was to give his further findings keeping in view the Board's advise dated 03.01.1995. Direction was also issued while adjourning the case that the Chief Secretary would decide the matter before the next date of hearing and it was to be placed on record. Accordingly, additional affidavit was filed and the writ petition was admitted for regular hearing. Once the issue was still pending consideration before the Chief Secretary, in pursuance of the representation and the view was reiterated and the writ petitioner was allowed to challenge the said decision, the State, now, cannot CWP No. 1462 of 1995 14 plead that there was delay and latches on the part of the petitioner.
17. Another factor which is to be noticed is that the petitioner is also challenging the consequential orders of promotion of respondent No.4 dated 05.12.1994 as Personal Assistant since the petitioner was ignored for promotion as respondent No.4 had been promoted as Senior Scale Stenographer earlier on 10.03.1992. The unamended writ petition was filed in the month of January, 1995, at the earliest point of time and, accordingly, the first issue is decided in favour of the petitioner by holding that the petition was not barred by principles of delay and latches. The Hon'ble Apex Court in Shiba Shankar Mohapatra Vs. State of Orissa 2011 (1) RSJ 624 has held that in seniority matters, delay should not be beyond a period of 3 years and the reasons for not approaching the Court should be explained. In the present case, such explanation has been duly given and the petitioner has approached the Court within the said period of 3 years. Therefore, the petition cannot be held to be barred on the issue of limitation. The relevant observation reads as under:
"29. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."
18. The second issue which arises for consideration is that while ordering reversion on 10.03.1992, the petitioner had not been put to notice inspite of the fact that he had already been promoted earlier on 20.02.1991 CWP No. 1462 of 1995 15 and had been working as Senior Scale Stenographer for over a period of one year. Respondent No.4, on the basis of his representations, succeeded in getting an order of promotion and the petitioner was reverted without even giving him an opportunity to show cause as to what ground his alleged seniority was suddenly no longer valid. Reliance can also be safely placed upon the Division Bench judgment of this Court in Nawab Singh & others Vs. State of Haryana & others 2005 (4) RSJ 565 & Narinder Singh Vs. Punjab State Co-operative Supply & Marketting Federation Ltd. & another 1994 (3) SLR 54. This order entailed serious civil consequences to the petitioner as he was reverted to the lower grade, was against the principles of natural justice and, therefore, before passing any such order, the petitioner should have been heard. According, the said issue is also decided in favour of the petitioner.
19. Regarding the third issue of declaration of the seniority inter se of the petitioner and respondent No.4, it is an admitted case that both the petitioner and respondent No.4 were recommended for appointment on the same date i.e. 08.12.1986 to the posts of Junior Scale Stenographers in pursuance of an advertisement of the Haryana Government. The petitioner had been placed at Sr.No.1 in the merit list for the Stenographers (English) whereas respondent No.4 had been placed at S.No.66 for the Stenographers (Hindi). The State has taken a very lame defence regarding the principle of seniority on the ground that since respondent No.4 received the letter of the Board earlier bearing S.No.134 against S.No.144 of the petitioner of the same date, therefore, respondent No.4 was liable to be treated as senior. The said justification cannot be accepted at any cost. As rightly contended by the counsel for the petitioner, the seniority is not to be determined at the CWP No. 1462 of 1995 16 hands of the dispatcher. The petitioner was admittedly Sr.No.1 out of 225 candidates selected by the Board for English Stenographers whereas respondent No.4 was at Sr.No.66 out of 281 Hindi Stenographers selected. Merely because respondent No.4 had joined earlier in point of time in pursuance of the offer of appointment on 03.03.1987 and the petitioner had joined subsequently in the month of June, 1987 since formalities of medical and police verification had to be done, respondent No.4 could not be given a march over the seniority. The Hon'ble Apex Court, in Suresh Chandra Jha Vs. State of Bihar & others 2007 (2) RSJ 393 has held that if there are no rules governing the field, it is the placement in the merit list which is to be seen and not the date of joining. By a person merely reporting and joining earlier would not overpower circumstances and would not affect the merit placement given by the selection Board. Relevant portion of the judgment reads as under:
"4. Learned counsel for the appellant submitted that the view taken by the Division Bench is clearly contrary to law. If there are no rules governing the field, it is the placement in the merit list which is determinative and not the date of joining. It is accepted that no rules had been framed and, therefore, the merit as appearing in the rank list has to be taken.
5. In response, learned counsel for the respondent submitted that right from 1981, respondent no.8 has worked and he having joined earlier has to be treated as senior to the appellant.
6. There is no dispute that the appellant was ranked higher to respondent no.8. There is also no dispute that in the appointment letter the appellant was given six weeks time to join. Merely because respondent no.8 joined earlier that did not in any way affected the merit placement.CWP No. 1462 of 1995 17
7. This Court in Chairman, Puri Gramya Bank and Anr. v. Ananda Chandra Das and ors. 1994 (6) SCC 301) held as follows:
"This appeal arises from the Judgment of the High Court of Orissa in O.J.C. No. 1007/88, dated March 4, 1992. The respondent and others were selected by direct recruitment as managers of Rural Bank. His rank was No. 9 in the merit list. He was directed to be given seniority on the basis of the date of his reporting to duty. It is reported that the first respondent is dead. The only question in this- case is that what shall be the ranking among the direct recruits? Is it the date on which they joined duty or according to the ranking given by the selection board? On comparative evaluation of the respective merits of the candidates for direct recruitment, the Board has prepared the merit list on the basis of the ranking secured at the time of the selection. It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court, is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. The view, therefore, is wrong. However, we need not interfere with the order, since the first respondent has died."
8. Since there was no rule in operation, obviously the ranking in the merit list was to decide the respective seniority. The ratio in Chairman, Puri Gramya Bank's case (supra) has full application to the facts of the case.
Appellant's claim that he was to be treated as senior to the respondent no.8 was rightly accepted by learned Single Judge. Unfortunately, the Division Bench did not address itself to the specific question and has placed undue stress on the respondent no.8 having joined earlier."
Reliance was also placed by the Hon'ble Apex Court in its earlier decision in the judgment rendered in Chairman, Puri Gramya Bank Vs. Ananda CWP No. 1462 of 1995 18 Chandra Das 1995 (2) RSJ 81.
20. Another factor to be taken into consideration was that respondent-Department had prepared a joint seniority list of the Stenographers of both the languages in which the petitioner had been shown at Sr.No.1. This fact has not been denied by the respondents and the justification given by respondent No.4 is that it was a mistaken belief of the Department. The Department had also taken the opinion of the Board regarding the inter se seniority on 27.10.1994, after the petitioner had made a representation on 25.10.1994. In pursuance of the request, the Board had opined on 03.01.1995 that the petitioner was senior to respondent No.4 and they were placed at merit No.1 & 3 respectively. The instructions of the Government dated 24.11.1962 would also show that the Chief Secretary had written to all the heads of the Department that inter se seniority amongst the direct recruits was to be maintained in the order of merit suggested by the Public Service Commission. Similar instructions dated 19.04.1971, pertaining to the seniority of direct recruits, recommended by Public Service Commission/Subordinate Service Selection Board, were also issued by the Chief Secretary, Haryana Government. In the said letter also, it was specified that for the employees recruited through the Board inter se seniority was to be determined according to the merit list prepared by the Board. It was also mentioned in the said circular that the seniority of candidates was fixed keeping in view their age and date of joining and these were against the Government instructions and, therefore, the rules of each class should be considered and action be taken accordingly.
21. Thus, the defence of the State that the Chief Secretary had opined otherwise or in contradiction of the instructions of the Government, CWP No. 1462 of 1995 19 cannot be accepted and thus, the decision dated 10.03.1992, regarding the petitioner on the basis of the advice of the Chief Secretary, on the ground that respondent No.4 had joined earlier which is a mere fortuitous circumstance cannot be justified.
22. Another factor which is to be taken into consideration is that the Board, vide its letter dated 16.08.1995, has noticed that the petitioner had to clear the test of the Junior Scale Stenographer (English), at the speed of 100 w.p.m. with 8% mistake whereas a Hindi Junior Scale Stenographer had to attain the speed of 80 w.p.m. with 8% mistake. Admittedly, inter se between the parties, the petitioner was at S.No.1 and though even for a different language, undisputedly, and respondent No.4 cannot be placed at a pedestal higher than the petitioner. Therefore, the merit of the petitioner could not have been brushed aside and he is rightly entitled to claim seniority over and above respondent No.4. The purpose of test and the forming of the merit-list would be defeated if the contention of the State and the private respondent is to be accepted that the date of joining would be the relevant date. Counsel for respondent No.4 has relied upon the judgment of the Hon'ble Apex Court in State of Haryana & others Vs. Balwant Singh and others 1996 VAD SC 15 to contend that seniority is to be given from the date of joining of service. From a perusal of the said judgment, it would be clear that the Hon'ble Apex Court has held that seniority of the candidates has to be reckoned from the date on which they joined the service and not according to the merit list prepared, since in that case, due to litigation, the respondents could not join. Accordingly, the Hon'ble Apex Court held that the seniority was to be given from the date of joining in 1985-86 and not when letters of appointment were offered in 1972. Thus, CWP No. 1462 of 1995 20 the said judgment is not applicable to the present facts and circumstances of the case.
23. Reliance was also placed upon the judgment in Bhey Ram Sharma & others Vs. Haryana State Electricity Board & others AIR 1993 SC 2573. The said judgment would not be applicable to the present case since in the said case, the appointments were made in pursuance to the advertisement on the basis that the appellants who in that case had to undergo a training course prior to joining and therefore, lost out on seniority as they joined later qua the respondents therein who had joined earlier, though selected by later advertisement.
24. In the present case, admittedly, the rules were notified subsequently and this Court need not go into the aspect of the issue of above rules and their implications at that point of time. That the Hon'ble Apex Court in Vimal Kumari vs. The State of Haryana, 1998 (4) SCC 114, while discussing the Haryana Social Welfare and Relief Organisation Service Group 'C' Rules, 1983, which are also the Rules in question in the present case, held that where there were Draft Rules and there was no decision of the Government adopting the said Rules, reference to the Rules could not be made for purposes of determining seniority. The relevant observations read as under:-
"6. The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regulate the service conditions of the employees, for whom the Rules are made, by those Rules even in their "draft stage" provided there is clear intention on the part of the Government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, CWP No. 1462 of 1995 21 as is evident in the instant case, recourse to "Draft Rules"
cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the Government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them.
7. In the instant case, as pointed out above, the Draft Rules were prepared in 1983. They have been lying in the nascent state since then. In the meantime, many promotions, including that of the appellant were made on the basis of `seniority' which, in the absence of any Rule made under Article 309, could be legally adopted as the reasonable basis for promotion. Seniority having thus been adopted as the criteria for making promotion on the post of Superintendent could not have been displaced by the Draft Rules and the High Court could not have invoked any provision of those Draft Rules which had been lying frozen at their embryonic stage for more than ten years.
8. In the absence of any decision of the State Government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the "Draft Rules" prepared in 1983, it was not open either to the Government or to any other authority, nor was it open to the High Court, while disposing of the writ petition, to invoke any of the provisions of those Rules particularly as the Government has not come out with any explanation why the Rules, though prepared in 1983, have not been notified for the long period of more than a decade. The delay, or, rather inaction, is startling."
25. Consequently, once the petitioner is declared senior to respondent No.4, he was wrongly reverted on 10.03.1992 by respondent No.2 and due to the wrongful reversion, the petitioner could not be CWP No. 1462 of 1995 22 considered for promotion w.e.f. 05.12.1994 when his junior was considered and promoted.
23. Accordingly, the writ petition is allowed and consequently it is held that the petitioner was wrongly reverted on 10.03.1992 to the post of Junior Scale Stenographer and the said order is, accordingly, quashed. Further a writ of mandamus is issued that the petitioner shall be entitled for consideration to be promoted to the post of Personal Assistant w.e.f. 05.12.1994, the date when his junior, respondent No.4 was promoted. The petitioner shall be further entitled for all the notional benefits as if he would not have been reverted from 10.03.1992 and also for the benefits of higher post of Personal Assistant w.e.f. 05.12.1994. The official respondents shall take necessary action on the receipt of the certified copy of this order, within a period of 2 months. Writ petition is disposed of along with costs of `5000/-, which the petitioner shall be entitled from the Department.
30.11.2012 (G.S. Sandhawalia)
shivani/sailesh Judge
To be referred to the Reporter.