Punjab-Haryana High Court
Tarsem Singh And Others vs State Of Punjab And Others on 26 September, 2013
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1) C.W.P.No.12704 of 2002
Tarsem Singh and others
....Petitioners
Versus
State of Punjab and others
...Respondents
2) C.W.P.No.8905 of 2004
Baljinder Singh and others
....Petitioners
Versus
State of Punjab and another
...Respondents
Date of Decision : 26.9.2013
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present: Mr. D.S.Patwalia, Advocate
for petitioners No.1 to 3, 6 & 7
(in CWP No.12704 of 2002)
Mr. Harjit Singh Manhas, Advocate
for petitioners No.4 and 5 (in CWP No.12704 of 2002).
Mr.R.K.Malik, Sr.Advocate with
Mr.Mohan Singla, Advocate
for petitioners (in CWP No.8905 of 2004) &
respondents No.4 to 9 (in CWP No.12704 of 2002)
Ms.Anju Sharma, Advocate
for Punjab State Forest Development Corporation Ltd.
Mr. Nilesh Bhardwaj, DAG, Punjab.
.....
MAHESH GROVER, J.
By this order I will dispose of two writ petitions bearing Nos.12704 of 2002 and 8905 of 2004.
The facts have been extracted primarily from CWP Singh Daljit 2013.10.05 13:04 I attest to the accuracy of this document C.W.P.No.12704 of 2002 -2- No.12704 of 2002, but considering that both the petitions are in fact an exercise of evaluating and counter-evaluating the claims of the petitioners and respondents therein, some of the facts would be necessary to be extracted from CWP No.8905 of 2004 as well. The petitioners in CWP No.12704 of 2002 are pitted against the private respondents arrayed therein who are also petitioners in CWP No.8905 of 2004.
1.Facts from CWP No.12704 of 2002 The private respondents were working as Saw Setters and Mechanics whereas the petitioners were working as Field Assistants. According to the cadre strength prescribed for Field Assistants, the total number of posts available are 72 while those of Saw Setters are 19 which are ex-cadre posts. The private respondents were working on adhoc basis as Saw Setters. A decision was taken on 21.12.1998 to absorb the Saw Setters and Mechanics in appropriate cases where the employees fulfill the requisite qualifications and experience and were having a good track record (hereinafter also referred to as '98 decision').
It would be necessary to point out here that the decision categorically stated that on absorption into the cadre of Field Assistants such employees would be placed at the bottom of the cadre of Field Assistant but their inter se seniority i.e. between Saw Setters and Mechanics would be protected.
At this stage it would also be necessary to deviate from the facts of CWP No.12704 of 2002 and to refer to some of the Singh Daljit 2013.10.05 13:04 I attest to the accuracy of this document C.W.P.No.12704 of 2002 -3- Annexures contained in CWP No.8905 of 2004, as they form an integral part of the decision which was arrived at in December 1998 and referred to above regarding the absorption of Saw Setters and Mechanics.
Prior to the final decision taken in 1998 there were at least two resolutions/decisions of the Board to this effect. In its meeting on 30.6.1995 the Board has resolved as follows :-
"Resolved that the sanction of the Board of Directors be and is hereby accorded to the conversion of such posts of Saw Setters and Mechanics to the Field Assistants as fulfill the prescribed qualifications to for the posts of Field Assistants."
"Resolved further that the issues be finalized by a Sub Committee comprising the Managing Director Sh.H.S.Bains, Sh.C.L.Gautam and Shri Prem Singh, Directors of the Corporations."
This decision was subsequently followed up by decision dated 4.8.1997 which is also extracted herebelow :-
"In reference to above, it is submitted and clarified that those employees (Saw Setters/Mechanics) who are graduate they can be appointed on the post of Field Assistants. It is also clarified that Saw Setters and Mechanics after their appointment as Field Assistants, their seniority has to be counted from the date of their appointment as Saw Setters and Mechanics."
Singh Daljit 2013.10.05 13:04 I attest to the accuracy of this document C.W.P.No.12704 of 2002 -4- Thereafter on 30.6.1998 another decision was taken to set up a Committee to take a conclusive decision in this regard.
Evidently, these decisions referred to in CWP No.8905 of 2004 were a prelude to the final decision taken in December 1998.
At the outset it may be observed that the petitioners in CWP No.8905 of 2004 have placed reliance on these decisions dated 30.6.1995 and 4.8.1997 (extracted above) which in fact would be of no consequence considering that the final decision was taken in December 1998 and therefore that would form a bedrock of the claims of the petitioners in CWP No.12704 of 2002 and also be foundational to the controversy.
It may also be necessary to set out here that 98 decision has never been challenged by the private respondents in CWP No.12704 of 2002.
The petitioners who were working as Field Assistants were promoted as Field Supervisors on 7.2.2000. The private respondents were promoted as Field Supervisors in the year 2002. The official respondents then counted the service rendered by the private respondents as Saw Setters to grant them priority as Field Supervisors over and above the petitioners.
On a representation being made by the petitioners the private respondents who were promoted as Field Supervisors were reverted to the post of Field Assistants which became the cause of grievance to them to agitate in CWP No.8905 of 2004 wherein the impugned orders of reversion have been subjected to challenge. Singh Daljit 2013.10.05 13:04 I attest to the accuracy of this document C.W.P.No.12704 of 2002 -5- While admitting the petition the operation of the impugned orders were stayed and thus the respondents were allowed to function as Field Supervisors.
The controversy therefore now would stand extricated and in brief it means that the petitioners' claim to be senior to the private respondents as Field Assistants and as a natural corollary as Field Supervisors also on the premise that the decision of 1998 taken by the Board of Directors when the Saw Setters/Mechanics were absorbed in the cadre of Field Assistant they were directed to be placed at the bottom of the cadre of Field Assistants and thus had to be ranked junior to them.
The respondents' grievance is that the service that they had rendered as Saw Setters should have been counted towards their service as Field Assistants considering the fact that there was parity in pay and thus their cadres ought to be construed as equivalent to each other. The entire reasoning in support of their claim essentially emanates from the decisions taken by the Board i.e. resolutions of 30.6.1995 and 4.8.1997 before the final decision of 1998 was taken.
There would be a serious impediment in the way of the claim of the private respondents. To summarise :- (i) They have not impugned the order dated 21.12.1998 which laid the foundation for their being placed at the bottom of the cadre of the Field Assistants. The order of reversion evidently flows from it as a consequential order when this decision of 1998 was ignored by the official respondents by conferring seniority upon the private respondents over Singh Daljit 2013.10.05 13:04 I attest to the accuracy of this document C.W.P.No.12704 of 2002 -6- and above the petitioners by including the services rendered by the respondents as Saw Setters. (ii) The respondents have been unable to show that the cadres of Saw Setters/Mechanics was equivalent to that of Field Assistants. Merely because there is equivalent pay prescribed would be of no consequence if the rules otherwise set out a distinct cadre. Rule 8 of the Punjab Civil Services (General and Common Condition of Service) Rules, 1994 is extracted herebelow :-
"Rule 8: Seniority inter se of the persons appointed on the posts in each cadre of service shall be determined by the length of continuous service on such post in that cadre of the service...."
A perusal of the above would also reveal that the seniority has to be maintained within the cadre and there cannot be any overlap on this score. 3) Apart from this, during the pendency of these petitions the department has circulated a final seniority list in the year 2007 which also has not been questioned by the private respondents which was imperative for them to do so given the fact that the seniority list is to their detriment.
The respondents would place reliance on a judgment rendered by the Hon'ble Supreme Court in S.I.Rooplal v. Lt.Governor through Chief Secretary, Delhi 2000(1)SCT 630 wherein in para 24 it has been observed as follows :
"24. It is clear from the ratio laid down in the above case that any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a Singh Daljit 2013.10.05 13:04 I attest to the accuracy of this document C.W.P.No.12704 of 2002 -7- deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Article 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned Memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the Memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the petitioners/appellants and the offending words in the memorandum "whichever is late" are held to be violative of Articles 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/appellant to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is restored."
If the facts of the case are to be seen, they are entirely different and besides a reference to para 24 would also indicate that the employees who are agitating their cause before the Court were deputationists in equivalent cadre. Thus the observation have flowed from the established and undisputed fact of there being an equivalent cadre of the employees being on deputation. Singh Daljit 2013.10.05 13:04 I attest to the accuracy of this document C.W.P.No.12704 of 2002 -8- There can be no dispute about this proposition had the case of the respondents been as easily discernible regarding the equivalence of cadres of Saw Setters and Field Assistants.
In the considered view of this Court the decision relied upon by the petitioners does not enhance their cause at all. Similarly the decision of the Full Bench of this Court reported as Kartar Singh and others v. State of Punjab and others 1990 AIR(Punjab)1 would also reveal a similar equivalence of cadres of Patwaris but working in different departments. But in the instant case with the rules providing for separate cadres, it cannot be construed to mean the cadres would be equivalent merely because the pay prescription is similar. The fundamental rule is that the date on which a person joins a particular cadre renders it to be the starting point to determine his inter se seniority in that cadre. The 98 decision taken by the Board of Directors which is unchallenged is merely a reiteration of this fundamental principle.
Thus, by no stretch of imagination the private respondents could assert their right to be considered senior to the petitioners as Field Assistants and subsequently as Field Supervisors. Apart from this, as noticed, the final seniority list has not been impugned by the private respondents and this would also be a factor to be taken as relevant for declining the claim of the private respondents.
For the aforestated reasons CWP No.12704 of 2002 is allowed. The petitioners therein are held to be senior to the private respondents which in any case has been determined by the official Singh Daljit 2013.10.05 13:04 I attest to the accuracy of this document C.W.P.No.12704 of 2002 -9- respondents by virtue of the seniority list of 2007. CWP No.8905 of 2004 is dismissed.
Needless to say, in the light of what has been stated above consequential benefits which may flow from such as onward promotion etc. shall be given to the petitioners notionally.
26.9.2013 (MAHESH GROVER)
dss JUDGE
Singh Daljit
2013.10.05 13:04
I attest to the accuracy
of this document