Punjab-Haryana High Court
Prem Swaroop Gaur vs State Of Haryana on 3 October, 2000
Author: J.S. Narang
Bench: J.S. Narang
JUDGMENT J.S. Narang, J.
1. The case of the petitioner is that he joined as Veterinary Surgeon in the Animal Husbandry Department of erstwhile Government of Punjab now Haryana on regular basis w.e.f. 26.9.1963. He was appointed to Class-II service w.e.f. 23.3.1975 by way of direct recruitment upon the recommendation of the Haryana Public Service Commission (for short hereinafter referred to as "the Constitution"). The petitioner did hold the charge of Class-I post intermit-tendly though not having been promoted regularly to Class-1 service. The petitioner was appointed to the Class-1 service known as HVS Class-1 upon the recommendation of the Commission vide appointment letter dated 20.3.1979, copy Annexure PI.
2. The service conditions of the members of Class-I service are governed under the statutory rules known as the Provincial Veterinary Service (Class-1) Rules, 1930 but the said rules were subsequently repealed by virtue of the new rules which were promulgated in 1995. The case of the petitioner continued to be governed under the 1930 Rules and not 1995 Rules as he had been appointed to Class-1 service much prior to 1995. The petitioner held the post of Deputy Director and thereafter Joint Director after having been appointed in Class-I service. The next promotion from the rank of Joint Director is that of Director, Animal Husbandry. So far as appointment of the petitioner to Class-I service is concerned, the same is not in dispute and admittedly, he is a direct appointee to Class-1 Service and successfully completed the probation period and was thereafter appointed substantively in the said service.
So far as the occurrence of vacancies in the service under the rules is concerned, the same were to be filled in inaccordance with rule 13 and the said rule provided that whenever the vacancy occurs, the local Government shall decide whether it will be filled by promo-lion or by direct recruitment. Rule 13 reads as under :-
"Power to make appointments When a vacancy occurs the Local Government shall decide whether it shall be filled by promotion or by direct appointment.
It looks that the rules were very old and the posts were very less in the Department of Animal Husbandry ai that time. However, with the passage of time, the Government decided to exercise its powers under Rule 13 and issued instructions dated November 18, 1974, copy Annexure P2, and vide said instructions, the Government decided that the ratio of 50: 50 be maintained in filling the Class-I posts by promotion and by direct recruitment and similar ratio was also ordered to be adhered to relating to Class-II service (Senior Scale) posts. The said instructions read as under :-
"From The Under Secretary to Govt. Haryana, Animal Husbandry Department.
To The Director, Animal Husbandry, Haryana, Chandigarh.
Memo No. 3638-PP(3)/74/26379 Chandigarh, dated the 18.11.1974.
Reference: Your office No. 1178I-EI/4-VIIIA.
Dated: 29.4.1973.
The decision taken by the Government during the year 1968 that all the Class-I posts requiring special qualification should be filled up only by direct recruitment and now it has been decided that the ratio of 50 : 50 be maintained in filling up Class-I posts by promotion and by direct recruitment please send the proposal to this department keeping in view this decision. It has also been decided that ratio of 50 : 50 be maintained in filling of Class-11 (senior scale) posts. As Class-I and Class-II draft rules have been sent to you by the Former Deputy Secretary, Animal Husbandry, therefore, necessary amendments be made in these rules, accordingly. Sd/-
Under Secretary to Govt. Haryana Animal Husbandry Department."
However, the government issued another set of instructions dated April 3, 1979, copy Annexure P-3 and the ratio stood revised as 75 :25 i.e. 75 pro-motcesand 25 direct recruits. The posts of Deputy Director, Animal Health and Deputy Director, Rinderpest, were to be filled in by direct recruitment and the same were to be adjusted in the ratio of 75 :25. In any case at that lime some draft rules for Class-1 service had been promulgated and were pending for final approval of the Government. In the said rules the ratio of 50 : 50 had been provided to be maintained for making promotions to Class-I posts.
Since the Government had not given clear cut instructions as to which posts have to be filled in by way of direct recruitment and which posts are to be filled in by way of promotions as such the seniority in Class-1 service was not clearly spelt out. The petitioner filed CWPNo. 382 of 1988 which was decided on March 8,1991. A categoric direction had been given that rule 19 of the 1930 Rules did not provide for fixing the seniority from the date of confirmation in the service, therefore, the seniority had to be fixed by way of counting the length of service: The directions issued read as under :-
"8. In the present case, we have rule 19 for fixing the seniority and it does not talk of fixing seniority from the date of confirmation in the service and, therefore, seniority has to be counted from the date an officer joins in Class-I service, whether on probation or otherwise, and the entire length of Class-I service has to be taken notice of in fixing the seniority.
9. Accordingly, all the writ petitions stand disposed of in the aforesaid terms, with no order as to costs.
XX XX XX XX XX"
The Government did not finalise the seniority despite the decision of this Court but a tentative seniority list was circulated as on May 1, 1992 and in regard thereto objections had been invited from the members of the service. The petitioner was placed at serial No. 10 in the said tentative seniority list by showing his date of appointment as 15.5.1978. The fact is that the petitioner had been recommended for Class-1 service on 20.3.1979.
It is claim of the petitioner that in accordance with the rules, the petitioner was entitled to be placed at Serial No. 2 next below Dr. G.P. Grover who was entitled to be placed at Serial No. 1. The petitioner filed detailed objections on 25.5.1992 and staked his claim for placement at Serial No. 2 in the seniority list. The petitioner again filed certain additional objections on October 9,1992 and thereafter the petitioner had been afforded personal hearing on 13.10.1992 and then again the matter was heard by the authority concerned on December 8, 1992.
3. The petitioner filed the present petition in the year 1993 and till then no final seniority list of HVS Class-1 Service had been circulated despite the fact that against the tentative seniority list, the objections had been heard way back in December, 1992 by way of giving personal hearing to all concerned including the petitioner. It was during the pendency of the present petition that the final seniority list had been circulated by passing a speaking order on July 29, 1999. It shall be appropriate to note the order dated 10.6.19093 passed by the Motion Bench while issuing notice of motion which reads as under :-
"Contends that the respondents were duty-bound to finally determine the seniority of Class-I officers which they have not done so. Since the post of Director, Animal Husbandry is going to fall vacant on 30.6.1993, the petitioner being senior-most has a prior right to be promoted.
Notice of motion for 30.7.1993.
In the meantime, respondents are restrained from filling up the post of Director, Animal Husbandry."
It is apparent from the order that the government had not determined the seniority of Class-1 officers and the post of Director, Animal Husbandry, was due to fall vacant on 30.6.1993. The petitioner claiming himself to be the senior-most person had a prior right to be considered for promotion. Thus, the respondents were restrained from filling the post of Director, Animal Husbandry. It is painful to note that despite the categoric directions of this Court in the year 1991 and the restraint order passed in 1993, it took the government six years approximately to finalise the seniority list which has not been attacked by way of filing the amended writ petition and the said list has been appended as An-nexnre P16 with this writ petition. Since the seniority list had been finalised right or wrong, in view of this, the interim order dated 10.3.1992, was vacated and the government had been directed to make regular appointment to the post of Director, Animal Husbandry in accordance with law.
The petitioner being dissatisfied with the seniority list circulated vide order dated 29.7.1999 amended the petition and the written statement to the amended writ petition has also been filed. By virtue of the present seniority list, the petitioner has been shown at Serial No. 10. The grievance of the petitioner is that his representation has not been dealt with properly and the factual position has not been determined in accordance with law. It is further the grievance of the petitioner that due to non-finalisation of the seniority list, the petitioner could not be promoted to the post of Joint Director and Director, Animal Husbandry from the date the junior officer to the petitioner had been allowed to hold current duty charge of the office of Director. Animal Husbandry, in fact, the petitioner had been occupying the post of Joint Director in his own pay scale w.e.f 7.12.1985 but could not be appointed due to non-finalisation of the seniority list. It is further averred that on finalisation of the seniority list, the petitioner is shown to have been appointed/promoted as Joint Director on regular basis w.e.f. 3.10.1994.
The grievance of the petitioner is that despite the instructions of the Government dated November 18, 1974 and April 3, 1979 vide which the ratio had been specifically fixed for promotion from amongst the pro-motees and direct recruits to HVS Class-I Service, the seniority list was not finalised. The seniority list was required to be finalized in accordance with Rule 19 of 1930 Rules in view of the categoric directions of this Court given in CWP No. 382 of 1988 decided on March 8, 1991. The respondents completely ignored the ratio formula and the rule of length of service which was required to be adhered to while finalising the seniority list.
It is further averred that since no seniority list had been finalised, the appointments to the posts in Class-11 as well as Class-I, had been made on stop-gap arrangements. Some of the persons had been promoted on ad hoc basis and were given the pay scale of Class-I service. But some of them were promoted to the said service in their own pay scale to the said service. It was on January 21, 1981, eight officers were promoted with retrospective effect to Class-I service from the dates shown against their names on temporary basis subject to the approval of the Commission. These promotions were made after the appointment of direct recruits during the year 1979. It is further mentioned that these officers in fact had been promoted on ad hoc/stop-gap arrangement against the vacancies of direct recruits. The persons who were promoted vide Annexure P7 dated 21.1.1981 are Sarvshri M.L. Mal-hotra, D.R. Maulick, A.L. Talwar, Shiy Dhan Singh, S.N. Sharma, Tek Chand Ahlawat, Din Mohammad and N.S. Rathi. In fact the said eight officers from Class-11 service could not have been promoted against the posts which fell to the lot of the direct recruits. The Government promoted Sarvshri Rohtas Singh, Bhag-wan Singh, Karan Singh, Mohinder Singh, Prem Sarup Ganr, Sultan Singh, Mukhtiar Singh, Sham Lal Yadav, R.S. Panghal, Sube Singh and Bharat Singh HVS Class-11 Officers to Class-I posts vide Annexure P8 dated 14.7.1982, temporarily subject to the approval of the Commission. Subsequently, vide another order dated December 9, 1985 copy Annexure P9, Sarvshri M.L. Gupta, Dr. V.D. Hooda, Dr. B.D. Bali, Dr. Jagdish Mitra, Dr. Vishesli Chander, Dr. Raghbir Singh Malik, Dr. BalbirChand Kohli, Dr. Ghansham Dass, Dr. Kanwar Sukhlal, Dr. U.K. Hooda, Dr. Ravinder Kumar Kashyap and D.D. Sharma, were also promoted from HVS Class-II (Senior Scale) as HVS Class-1 subject to approval of the Commission.
It is argued that in the impugned seniority list, the dates of appointment to HVS-I have been mentioned against each of the officers but the said dates are not correct. It shall be pertinent to mention here that the petitioner is shown to have been promoted vide order Annexure P8 along with others, the dale of promotion has been given as April 4, 1978. The contention is that if other persons had been given the promotion from the dates they were placed in their own pay scale, likewise the petitioner was also entitled to be promoted as such w.e.f. 118.3.1976 and not from April 4,1978 as he had been given the charge of HVS-I post with effect from that date or at least with effecl from September 1,1977 when he was given the full-fledged charge of the post of Deputy Director, Seed Breeding Farm, Hisar in his own pay scale. If the said treatment had been meted out to the petitioner, he would be entitled to be placed at Serial No. 5 next below Dr. G.P. Grover.
It is further the contention of the learned counsel for the petitioner that the appointments which had been made pursuant to Annexure P7, P8 and P9 are no longer good appointments as the same had been made subject to the approval of the Commission and that the Commission has not granted the approval to the promotion of any HVS-I officer and in fact the approval had been rejected vide letter bearing No. P.R. 26-95/19283 dated 29.2.1996 and P.R. 25/95-6584 dated 16.8.1996. Thus, the promotions made vide orders copies Annexures P7, P8 and P9 have become ineffective and that all the officers promoted as such would stand reverted automatically to HVS-II. This fact has not been controverted by the government, while submitting reply to para 19 in the written statement. The stand of the government is that the matter is being taken up as the approval by the Commission has not become a hindrance for the department to get the promotions approved and as per Regulation 15, the matter has been sent for getting the approval of Council of Ministers. Be that as it may, there is no approval as on date of the Commission and in fact the case of the said promotees has been rejected by the Commission. As a sequel thereto, the said promotees were not entitled to remain in Class-I service. It is a fact of the said rejection was communicated by the Commission way back in February and October, 1996. Thus, the question of retaining the names of those persons in HVS-I service by the Government did not arise.
Alternatively, the case of the petitioner is that he had been directly selected and appointed to HVS Class-I, in March 1979 and even if he is given the date as March 20,1979 in Class-1 service, he would be the only eligible candidate to be considered for appointment to the post of Director Animal Husbandry on the date when Dr. S.N. Sharma retired. (In spite of the fact that appointment of Dr. S.N. Sharma in Class-1 service was also made subject to approval of Haryana Public Service Commission as is evident from copy Annexure P7).
The case of the petitioner is that the Government failed to perform its duties in settling the seniority list in HVS-II and so also in HVS-I despite the fact that categoric instructions had been given that the posts shall be divided in the ratio of 50 : 50 and then as per the instructions in the ratio of 75 : 25. However, despite these instructions and also the judgment rendered by this Court for applying the rule of length of service, the proper seniority list had never ever been finalised. It is unfortunate that number of persons on the said tentative seniority list and thereafter on the list dated 26.7.1999 have retired while holding current duty charge on the post of Director, Animal Husbandry. The impugned seniority list copy Annexure PI6 is, therefore, not sustainable and the same deserves to be quashed.
4. Mr. Ashok Chaudhary, learned Deputy Advocate General, appearing on behalf of the State of Haryana, has stated that the seniority list has been drawn while keeping into consideration the length of service as has been observed by this Court in CVVP No. 382 of 1991 and while calculating the length of service ad hoc/temporary service had also been counted and the dates were recorded accordingly. The appointment to Class-I service, so far as petitioner is concerned, he has not been given the benefit from March 1979 i.e. the date on which he had been inducted by way of direct recruit to Class-1 service but has been given the date i.e. April 4, 1978. It has been further contended that the impugned seniority list which had been finalised vide order dated 26.7.1999 was duly finalised after giving full opportunity of hearing to all concerned including the petitioner.
5. However, learned Deputy Advocate General was unable to explain as to how the names of those promotees which find mention in Annexures P7, P8 and P9 could be retained in HVS-I especially when the Haryana Public Service Commission had rejected their promotion by not according approval way back in the year 1996. The only argument which has been raised is that the matter is under consideration for obtaining approval of the Council of Ministers. In this context he was unable to refer to any rules or regulations under which the names of such persons could be retained in HVS-1. The argument is, therefore, devoid of any merit and has been noted only to be rejected.
6. I am of the considered opinion that there has been no exercise of mind in accordance with the rules applicable at that time and the seniority list as such has not been correctly finalised, which has been annexed as Annexure P16 which has been impugned by the petitioner. The Government has to keep in mind the rules and its own instructions vide which the posts were divided in the ratio of 50 : 50 and then subsequently in the ratio of 75 : 25 and at the same the judgment rendered by this Court in CWP No. 382 of 1991 in which a categoric direction had been given that in the absence of any rules, the seniority has to be determined in accordance with Rule 19 by taking into consideration the length of service. Apart from this, another factor which is required to be noticed by the Government is that the promotions of various officers had been made vide orders Annexures P7, P8 and P9 and the said promotions to Class-I were made subject to the approval of Mary-ana Public Service Commission. The Commission rejected the said recommendations made by the Government, meaning thereby that the said officers had no right to remain in HVS-I. This would include the petitioner as well, as his name has also been recorded in the order, copy Annexure P8. However, the distinguishing feature in the case of the petitioner is that he had competed to be appointed in HVS-I by way of direct recruit and had been appointed to Class-1 service (HVS-I) vide order dated 20.3.1979, copy Annexure PI. Thus, the rejection by the Commission regarding the case of the petitioner would not affect him and he shall be taken to be in HVS-I w.e.f. 1979 unless his right as a promotee is redetermined in accordance with law as had been claimed by the learned Deputy Advocate General.
By any stretch of imagination, the seniority list Annexure P16 cannot be sustained and the same, therefore, deserves to be quashed. The petition is allowed with costs and the seniority list, copy Annexure P16, dated 29.7.1999, is quashed. The Government is directed to redraw the seniority list of HVS-I after according proper opportunity of being heard (including personal hearing) to the persons concerned and also keeping in mind the 1930 Rules, Instructions issued from time to time in the year 1974 and 1979 and the judgment rendered by this Court in CWP No. 382 of 1988 decided on 8.3.1991 and also other factors such as direct appointees to HVS-1 by the Commission. Their entry shall have to be considered from the date of recommendation.
7. It has been brought to my notice by the learned counsel for the petitioner that the petitioner is attaining the age of superannuation on September 30, 2000, if that be so, the exercise in re-determining the seniority in HVS Class-1 be carried out by the government with in a period of three months from the date of receipt of copy of this order from this Court or a certified copy from the petitioner whichever is earlier. The consequential benefits shall flow therefrom including the right of consideration of the petitioner to the post of Director, Animal Husbandry, from the date it becomes available and the petitioner is eligible in accordance with law. If the petitioner is promoted to the rank of Director, Animal Husbandry by giving deemed date, the pay fixation of the petitioner for the purpose of retiral benefits shall also be made accordingly. The costs are assessed at Rs. 3000/-.
8. Petition allowed.