Punjab-Haryana High Court
Smt. Sukanya And Another vs State Of Haryana And Others on 27 August, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.20868 of 2011 -1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
1. CWP No.20868 of 2011
Smt. Sukanya and another ... Petitioners
Versus
State of Haryana and others ... Respondents
2. CWP No.18399 of 2012
Nirmala Devi ... Petitioner
Versus
State of Haryana and others ... Respondents
Date of Decision:27.08.2013
CORAM : HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. S.P. Chahar, Advocate for the petitioners.
(In CWP No.20868 of 2011)
Mr. R.K. Malik, Sr. Advocate with
Mr. Nikhil Sharma, Advocate for the petitioner.
(In CWP No.18399 of 2011) and respondent No.3.
(In CWP No.20868 of 2011).
Mr. Sunil Nehra, Sr. D.A.G. Haryana.
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest?
RAJIV NARAIN RAINA, J.(Oral)
This order will dispose of CWP No.20868 of 2011 and CWP No.18399 of 2012 as the controversy in both is the same.
Admittedly, the petitioner No.1 in CWP No.20868 of 2011 and the private respondents were part of the same direct recruitment process leading to appointments of clerks. The petitioner was selected and joined the revenue department on 30.7.1991. The private respondent for reasons of litigation could secure appointment on 7.10.1999 after much delay and on conclusion of which she also secured appointment as a clerk in the revenue department.
Thakral Rajeev2013.08.31 10:06 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.20868 of 2011 -2-
It has not been disputed before me that in the merit determined by the erstwhile Haryana Subordinate Services Selection Board, that made the selection, the private respondent was placed at merit position No.544 while the petitioner was much lower in merit falling at serial No.1142. The seniority Rule 11 laid down that the seniority, inter se of members of the service shall be determined by the length of continuous service on any post in the service. However, there is a proviso to Rule 11 which lays down that in the case of members appointed by direct recruitment, the order of merit determined by the Board will not be disturbed in fixing seniority. Merely because a provisional seniority list was issued in the year 2001 which showed the petitioner senior to the private respondent that would not be to his benefit even though the private respondent may not have objected to it. Seniority in such circumstances cannot be made dependent on objections. In any case, in the final seniority issued later after objections were received and considered, the inter se seniority position stands rectified and the private respondent has been shown senior to the petitioner. This reflects the correct seniority placement under the statutory rules of which the petitioner cannot make a justiciable grievance. No one has a right to a particular seniority position unlawfully obtained or given under bona fide mistake.
No ground for interference is made out. The petition is devoid of merit.
Dismissed.
Learned counsel appearing for the petitioner in CWP No.18399 of 2012 has brought to my notice the order dated 23.8.2011 passed by the Commissioner, Gurgaon Division, Gurgaon, in which the correct seniority position has been reflected in favour of the petitioner-Smt. Nirmala Devi, Thakral Rajeev 2013.08.31 10:06 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No.20868 of 2011 -3- respondent in CWP No.20868 of 2011, and she was granted her seniority in accordance with the proviso to Rule 11 of the Rules. However, in the consequential order passed dated 29.5.2012 which has been impugned in this petition, a decision was taken that in view of the pendency of the CWP No.20868 of 2011, it would not be proper to promote Smt. Nirmala Devi as Assistant because the matter was subjudice. Strangely, on the ground of pendency of the other writ petition the representation of the petitioner- Nirmala Devi for consideration of promotion from the date the petitioner in CWP 20868 of 2011 her junior was rejected. She was, however, given liberty to file a fresh representation in the event the order dated 2.8.2011 was upheld by this Court.
Since the order dated 2.8.2011 has been upheld, and the accompanying writ petition stands dismissed by this order, CWP No.18399 of 2012 is allowed and the impugned order dated 29.5.2012 is quashed to the extent that it wrongly held up the petitioner for promotion only on account of the pendency of the above writ petition. Since there are now no fetters on the promotion of the petitioner-Smt. Nirmala Devi as Assistant, the respondent-commission is directed to pass an appropriate order promoting the petitioner-Smt. Nirmala Devi with effect from the date when Smt. Sukanya in CWP No.20868 of 2011 was promoted as Assistant with all consequential benefits in case all other conditions of eligibility under the rules and government instructions of 70% good ACRs are met.
(RAJIV NARAIN RAINA) JUDGE 27.08.2013 rajeev Thakral Rajeev 2013.08.31 10:06 I attest to the accuracy and integrity of this document High Court Chandigarh