Punjab-Haryana High Court
Wazeer Singh Goyat And Others vs State Of Haryana And Others ... on 3 August, 2010
Author: Permod Kohli
Bench: Permod Kohli
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
1. CWP. No. 3549 of 2007 Date of Decision: 3.8.2010.
Wazeer Singh Goyat and others --Petitioners
Versus
State of Haryana and others --Respondents
2. CWP. No. 9712 of 2007
Ram Swarup Verma and others --Petitioners
Versus
State of Haryana and others --Respondents
3. CWP. No. 5791 of 2008
Jitender Kumar and others --Petitioner
Versus
State of Haryana and others --Respondents
4. CWP. No. 19454 of 2007
Ms. Hema Sharma and others --Petitioners
Versus
State of Haryana and others --Respondents
CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.
Present:- Mr. K.K. Gupta, Advocate.
Mr. Surya Parkash, Advocate.
Mr. Gobind Goel, Advocate.
Mr. R.K.S. Brar, Addl. A.G., Haryana.
Mr. T.S. Dhindsa, Advocate.
CWP. No. 3549 of 2007 -2-
Mr. Sunil Panwar, Advocate.
***
PERMOD KOHLI.J (ORAL) Dispute in these petitions relates to seniority of the officers in the cadre of Haryana Civil Services (Executive Branch)(hereinafter referred to as the 'Service'). The facts of the case are being noticed here from CWP Nos. 3549 of 2007 and 9712 of 2007. The facts being common in all the writ petitions, these petitions were heard and are being disposed of by this common order.
Facts from CWP No. 3549 of 2007:-
Petitioners in this petition are the direct recruits having been appointed on the basis of the competitive examination except petitioner no.8, who was appointed on compassionate grounds from Register-B maintained under Rule 6 of the Punjab Civil Services (Executive Branch) Rules, 1930 (as amended from time to time including the amendments introduced by the State of Haryana). On being selected through the competitive examination and recommended by the Haryana Public Service Commission (hereinafter referred to as the 'Commission'), the petitioners no. 1 to 4 and 6 joined on 16.3.1989, whereas petitioners no.5 and 7 joined on 21.3.1989. Petitioner no.8 was appointed on compassionate grounds and he joined on 27.11.1991. The vacancies against which the petitioners were appointed from Register-B became available in the year 1985. A requisition for filling up of the 11 vacancies from Register-B for the year 1985 was forwarded by the Govt. to the Commission.. Advertisement for these vacancies was issued in the year 1986 and the competitive examination held in the year 1987. The result of the competitive examination was declared in the year 1988. Appointments took place thereafter and the petitioners no. 1 CWP. No. 3549 of 2007 -3- to 7 joined on the dates mentioned herein above, whereas petitioner no.8 joined on being appointed on compassionate grounds. Respondents no.3 and 4 were appointed from Register-A-1. They joined the service on 19.10.1990.
It is admitted case of the parties that all these vacancies were available in the year 1985. As per the details given in the reply of respondents no.3 and 4, 16 vacancies for appointment to the service were notified from Registers A-1, A-II, B and C. The number of vacancies from different registers were in the following manner:-
" Sr. No. Name of Register No. of vacancies 1. A-I 02 2. A-II 02 3. B 11 4. C 01 ---------------- 16 ----------------"
The process of selection/appointment in respect to registers A- II, B and C was completed by the year 1991. However, in respect to Register A-1 i.e the D.R.Os/Tehsildars/Naib Tehsildars had to be withheld on account of a stay in CWP No. 8855 of 1988 filed by one Sh.K.K. Gupta. An interim order dated 11.10.1988 was passed in the aforesaid petition with the following directions:-
" There shall be an interim direction that till further orders, no fresh appointment to H.C.S (Executive Branch) shall be made."
Though, the interim order was passed in October, 1988, the list of the selected candidates was sent on 18.7.1989 but final selection could not take place. CWP No. 8855 of 1988 was decided on 3.8.1990 and the selection made by the Commission in respect of the three candidates from CWP. No. 3549 of 2007 -4- Register A-1 of the year 1983 was set aside. The effected candidates filed S.L.P in the Hon'ble Supreme Court and vide order datred 14.10.1990 their reversion was stayed and the Commission was permitted to finalize the pending selection. In view of the directions of the Hon'ble Supreme Court, the process for selection from Register A-1 in respect to two vacancies of 1985 remained pending on account of the litigation referred to above. The S.L.P in the aforesaid matter came to be finally disposed of on 7.10.1991. The Govt. re-initiated the process for selection and a list of 52 eligible officers was furnished by the Financial Commissioner, Revenue for consideration against the two vacancies of 1985 batch from Register A-1. The Selection Committee recommended the names of respondents no.3 and 4 on 7.9.1992 to fill up these vacancies. The Commission vide its letter dated 19.10.1993 recommended the names of the respondents no.3 and 4 against these two vacancies from Register A-1 and they were appointed and joined the service on the same day.
With a view to finalize the seniority of the members of service, respondent no.2 invited objections and passed order dated 3.7.2005 fixing the seniority of the extra Assistant Commissioners vide order dated 3.7.2005 (Annexure P-3). In this seniority list petitioners were placed above respondents no.3 and 4, who were at Sr. Nos. 39 and 40 respectively, whereas the petitioners were shown at Sr. Nos. 4, 6, 8 to 11, 14 and 21 respectively. After passing the aforesaid order respondent no.2 issued another order dated 12.8.2005 (Annexure P-4) proposing to re-determine the seniority of cadre of service in the manner indicated therein and fresh claims/objections were invited within 21 days. It was proposed to re- determine the seniority from Sr. No. 32 onwards. It is alleged by the CWP. No. 3549 of 2007 -5- petitioners that since their seniority was not sought to be disturbed, they were not required to respond to the same even though a representation dated 25.10.2005 was submitted by petitioner no.6 and similar representations were made by other petitioners. It is stated that respondents no.3 and 4 had filed CWP No. 2758 of 2006 titled as Narneder Singh and another Vs. State of Haryana and others seeking to re-determine their seniority. It is also admitted case of the parties that the petitioners herein were respondents in the said writ petition. The petitioners, thus, made another representation dated 22.11.2006 and also sought personal hearing with respondent no.2. It is alleged that neither their representation was decided nor they were granted any opportunity of hearing and to the contrary respondent no.2 issued the impugned order dated 12.12.2006 (Annexure P-7) and the seniority of the petitioners qua respondents no.3 and 4 has been disturbed. Respondent no.3 has been placed at Sr. No.3 of the seniority list, on being shifted from Sr. No.39, whereas respondent no.4 has been placed at Sr. No.10 on being shifted from Sr. No. 40 of the earlier seniority list. In this manner respondent no.3 is made senior to all the petitioners and respondent no.4 made senior to petitioners no.5 to 8.
The State-respondent has justified and supported the impugned order on the plea that the appointments of respondents no.3 and 4 were against the vacancies for the year 1985 and in view of the fact that these vacancies relate to the period original seniority rule 20 was in operation, the seniority has to be determined by applying the rule of 'Rota & Quota' on the basis of the roster provided under Rule 17, whereas the stand of the petitioners is that in so far the seniority is concerned, it has to be determined on the basis of the amended Rule 20 of the Punjab Civil Services (Executive CWP. No. 3549 of 2007 -6- Branch) Rules, 1930 (hereinafter referred to as 'Rules') as applicable at the time of appointment of respondents no.3 and 4. It is also admitted case of the parties that the original Rule 20 of the rules was amended on 1.10.1990. The State-respondent has also supported the impugned order on the basis of a judgement of the Hon'ble Suprme Court in case of Parminder Singh Bains Vs. State of Punjab.
The short and only question requiring determination in the present petition is whether the seniority is to be governed by the unamended or the amended Rule 20 of the rules.
Facts from CWP No. 9712 of 2007
Petitioners in this case were also appointed by direct recruitment on the basis of the competitive examination conducted by the Commission under proviso to Rule 5 of the rules as applicable to the State of Haryana. They joined their service on 16.5.1994. Respondents no.2 to 10 also participated in the selection pursuant to advertisement issued in June, 1992 but could not be appointed against the advertised vacancies. Respondent no.2 filed CWP No. 6057 of 1994 seeking appointment against the vacancies becoming available up to the date of interview. The said writ petition was dismissed by the High Court, however, the Hon'ble Supreme Court set aside the judgement of the High Court and issued directions for appointment of the candidates against the vacancies accruing up to the date of interview in the reported judgement of the Hon'ble Supreme Court in case of Virender Singh Hooda Vs. State of Haryana reported as 1999 (3) SCC
696. Similarly, respondents no.3 and 5 also filed CWP no. 17792 of 1991 and CWP No. 5037 of 2000 claiming the same relief. These two writ petitions were also decided vide common judgement dated 8.9.2000 by a CWP. No. 3549 of 2007 -7- Division Bench of this Court and the writ petitions were allowed in terms of the judgement of Hon'ble Supreme Court in Virender Singh Hooda's case (supra). Similar writ petitions came to be filed by respondents no.7, 9 and
10. These writ petitions were also decided vide judgement dated 30.1.2001 granting similar relief. Respondent no.8 also filed CWP No. 2157 of 2000 which was also decided in terms of the judgement in Virender Singh Hooda's case. As a consequence of various directions issued in various writ petitions the private respondents no.2 to 10 were appointed between 10.12.1999 to 3.1.2005. Attempt of the respondent-State to challenge the judgements passed by the High Court in various writ petitions, referred to above after Virender Singh Hooda's judgement before the Hon'ble Supreme Court, however, failed. In one of the case filed by one Sandeep Singh on the basis of the judgement in Virender Singh Hooda's case the Hon'ble Supreme Court, however, finally put a stop on further claims on the basis of the selection of 1993 and while granting relief to the writ petitioners in the said case gave benefit of appointments prospectively. This judgement is reported as 2002 (10) SCC 549.
In view of the various judgements referred to above, the State of Haryana enacted Haryana Civil Services (Executive Branch) and Allied Services and other services Common/Combined Examination Act, 2002. Making provisions that no appointment can be made to any post or service covered by the said Act beyond the number of advertised posts. The vires of this Act were challenged, however, the Hon'ble Supreme Court vide its judgement reported as Judgements Today 2004 (9) SC 293 upheld the vires of the Act except Section 4(3), whereunder the services of the persons appointed pursuant to the court directions were sought to be dispensed with. CWP. No. 3549 of 2007 -8-
The State of Haryana issued the tentative seniority list of the members of the service on 12.8.2005 under Rule 20 and invited objections from the concerned. The petitioners filed their objections dated 6.3.2006 in respect to the seniority position of respondents no.2 to 10, who were placed in the seniority list over and above the petitioners on the basis of the same directions issued in Virender Singh Hooda's case. The petitioners also approached the Hon'ble Supreme Court seeking clarification of the judgement in Virender Singh Hooda's case. The said clarification application was, however, disposed of vide order dated 1.5.2006 with the following observations:-
" No clarification of our judgement is called for. In case, the applicants are aggrieved by the seniority list, it will be for them to challenge in accordance with law, which aspect will be decided on its own merits.
The application is disposed of accordingly."
Objections filed by the petitioners to the tentative seniority list have been rejected vide the impugned order dated 12/13.12.2006 (Annexure P-1) and respondents no. 2 to 10 have been placed over and above the petitioners. The petitioners are aggrieved of the aforesaid order rejecting the objections of the petitioners in respect to the seniority. Vide the impugned order the State has justified the placement of the private respondents over and above the petitioners in view of the observations of the Hon'ble Supreme Court in Virender Singh Hooda's case, wherein they were directed to be placed immediately below the candidates selected and appointed pursuant to the result declared by the Commission on 19.6.1999. It is, accordingly, stated that the petitioners were appointed in the year 1994 and private respondents were appointed, though, later in time but pursuant CWP. No. 3549 of 2007 -9- to the directions of the court and in view of the directions of Virender Singh Hooda's case, they are to be placed below the appointees of 1992 advertisement and above the petitioners, who were appointed in the year 1994. It is further mentioned that the private respondents were adjusted against the vacancies occurring prior to 1.10.1992.
With a view to appreciate the respective contentions of the parties, it is deemed necessary to notice some of the relevant rules. Rule 5 relates to the appointment, rule 6 deals with the maintenance of the registers, rule 17 deals with the appointment from registers in rotation and rule 18 deals with the order of appointment of candidates from the registers, whereas rule 20 relates to seniority. Rules 5,6, 17 and 18 are reproduced hereunder. Rule 20 prior to amendment and after the amendment is also noticed hereunder:-
" Rule 5. Members to be appointed by the Governor of Haryana from among accepted candidates- Members of the service shall be appointed by the Governor of Haryana from time to time as required from among accepted candidates whose names have been duly entered in accordance with these rules in one or other of the registers of Accepted Candidates to be maintained under these rules:
Provided that if in the opinion of the State Govt. the exigencies of the service so require, the State Govt. may make special recruitment to the service by such methods as it may be notification specify, after consultation with the Public Service Commission."
xxx xxx xxx
6. Registers to be maintained-The following Registers of Accepted Candidates shall be maintained by the Chief Secretary, namely:- CWP. No. 3549 of 2007 -10-
(a) Register A-I of District Revenue Officers, Tehsildars and Naib Tehsildars accepted as candidates;
(b) Register A-II of members of Class III service accepted as candidates;
(c) Register-B of persons accepted as candidates on the result of a competitive examination; and
(d) Register C of Block Development and Panchayat Officers."
xxx xxx xxx
17. Appointment of registered candidates to service- The Governor of Haryana shall ordinarily make appointments to the service in pursuance of rule 5 from amongst candidates whose names are entered in the various registers in rotation as follows:-
From Register B two candidates
From Register A-I one candidates
From Register B two candidates
From Register A-II one candidate
From Register B three candidates
From Register A-I one candidate
From Register B two candidates
From Register A-II one candidate
From Register C one candidate
From Register B three candidates
From Register A-I one candidate
From Register B two candidates
From Register A-II one candidate
From Register B two candidates
From Register A-I one candidate
From Register B three candidates
From Register C one candidate
and thereafter in the same rotation beginning again from Register-B."
xxx xxx xxx CWP. No. 3549 of 2007 -11-
18. Order of appointment of candidates- Candidates on the different registers shall ordinarily be appointed to the service in the order in the which they are selected and there names entered in the respective registers."
xxx xxx xxx
20. Seniority of members of service (prior to 01.10.1992) (1) The seniority of members appointed to the service shall be determined in accordance with the rotation prescribed in Rule-17, irrespective of the fact whether or not this rotation is actually followed while making appointments;
Provided that the order of merit determined by the Selection Committee or Public Service Commission as the case may be in respect of persons appointed from various registers shall not be distrubed:
Provided further that in the case of an ex-emergency commissioned officer, an ex-short service commissioned officer, or an ex- serviceman appointed to the service, benefit of seniority on account of military service, may be given with due regard to the provisions of the Punjab Govt. National Emergency (Concessions) Rules, 1965:
Provided further that
(a) If the name of any candidate is removed from the register of accepted candidates or the list of special recruits or the order of his appointment is cancelled under the provisions of rule 19, and such candidate is subsequently appointed to the service, his seniority shall be fixed keeping, in view the date of his actual appointment;
(b) In the case of members appointed to the service through special recruitment under the proviso to rule 5, the seniority shall be fixed by the CWP. No. 3549 of 2007 -12- State Govt. in the order of merit determined by the Selection Committee or the Public Service Commission, as the case may be and they shall be placed below the members appointed through regular registers against vacancies n respect of the same year in which the special recruitment is made. The seniority inter se of persons appointed through special recruitment from various sources shall be fixed in blocks arranged according to descending order of pay scales of the posts from which recruitment is made, in which at least one person from each source shall be included, but if the member of persons appointed from a source is four or more, two persons from that source shall be included in the block. The second and subsequent blocks shall, if necessary, be repeated to include all available persons from various sources. If the pay scales of two or more posts from which recruitment is made are the same then the seniority of such members shall be determined by the length of their service in such posts and if the length of their service is also the same the elder member shall be senior to the younger.
(2) If there are any cases which are left uncovered by the principles enunciated above they would be decided by the Govt. on just and equitable grounds."
xxx xxx xxx
20. Seniority of members of service (after amendment mad on 01.10.1992):- (1) The seniority of members appointed to the service shall be determined from the date of their appointment;
Provided that the order of merit determined by the Public Service Commission or the Selection Committee as the case may be, in respect of persons appointed from registers prescribed in rule 6 or through special recruitment under the proviso to rule 5 shall not be disturbed. CWP. No. 3549 of 2007 -13- (2) If the name of a candidate is removed from the register of accepted candidates or the list of special recruits or the order of appointment is cancelled under the provisions of rule 19, and such candidate is subsequently appointed to the service, his seniority shall be determined from the date of such subsequent appointment."
I have heard learned counsel for the parties at length and perused the record.
Impugned orders in these writ petitions are sought to be defended on two counts. (1) The vacancies against which the private respondents were appointed relate to the period 1985 from the concerned registers and thus they are to be appointed against the slot meant for the concerned register in accordance with Rule 17. The submission is that the respondents on their appointment will be deemed to have been appointed on the dates the vacancies accrued. It is contended on behalf of the respondents particularly in CWP No. 3549 of 2007 that though the process was initiated in the year 1985, however, on account of the interim stay selection/appointment from Register A-1 has not been made and on disposal of the writ petition when the selection has been made, these respondents are to be granted the benefit of deemed date of appointment from the date of accrual of the vacancies. (2) The process of appointment was initiated prior to amendment of the seniority Rule 20 i.e. 1.10.1992, unamended Rule 20 will determine the seniority and not the amended Rule 20. It is contended on behalf of the respondents that unamended Rule 20 provides for determination of seniority of the members in accordance with the rotation prescribed under Rule 17. Sub Rule 1 of Rule 20 prescribes the fixation of seniority in accordance with rotation prescribed under Rule 17 CWP. No. 3549 of 2007 -14- irrespective of the fact whether or not this rotation is actually followed while making these appointments. Laying emphasis on the expression "irrespective of the fact whether or not this rotation is actually followed while making appointments", it is vehemently argued that the rule clearly requires the seniority to be determined on the basis of the slots available for particular source at a given time, even, if, no appointment was actually made at the relevant time. The contention is that the rule of Rota will apply for determination of the seniority in view of the quota prescribed under Rule 17 for different registers/sources. The only restriction is the adherence to inter se merit as determined by the Commission from various registers.
Mr. Dhindsa, learned counsel appearing on behalf of respondents has relied upon a judgement of the Hon'ble Apex Court in case of Arvinder Singh Bains Vs. State of Punjab and others reported as J.T. 2006 (11) SC 553. In this case the recruitment was made to Punjab Civil Services (Executive Branch) vide advertisement issued in the year 1980 for direct recruitment. The vacancies for direct recruitment in fact occurred between 1978 to 1982. The vacancies were filled up in the year 1986. The direct recruits claimed seniority on the basis of the roster points prescribed under Rule 18 of the 1976 Rules. Under Rule 18 a roster for 100 vacancies was prescribed for filling up of such vacancies from various registers. Every 3rd vacancy was to be filled up from Register-B i.e by direct recruitment. Hon'ble Supreme Court considering the issue and the mandate of Rule 18 directed the fixation of seniority of the candidates in accordance with the rotation of vacancies prescribed under Rule 18.
This judgement has also been relied upon by the respondent- State while fixing the seniority of the private respondents over and above CWP. No. 3549 of 2007 -15- the petitioners. From the perusal of Rule 18 reproduced in the aforesaid judgement, it is evident that rule is mandatory in nature. The relevant extract of the rule reads as under:-
" 18. Appointment of accepted candidates to the service. The Govt. shall make appointments to the service in pursuance of Rule 7 from amongst the candidates entered on the various Registers in a slab of 100 vacancies as follows."
Considering the mandate of the rule, the seniority was directed to be fixed by applying the Rota.
The 2nd contention of the respondents that the unamended Rule 20 has to be applied to determine the seniority. Unamended Rule 20 has been reproduced herein above. Under this rule, the seniority is to be determined on the basis of the rotation of the vacancies prescribed in Rule 17 meaning thereby the rule prescribes Rota in view of the quota provided under Rule 17. It is the case of the respondents that since the vacancies pertain to period prior to amendment of Rule 20 i.e. 1.10.1992 and the process for appointment was initiated prior to amendment of Rule 20, the unamended Rule 20 will apply to determine the seniority.
To support this contention, reliance is placed upon a judgement reported as AIR 1983 S.C. 852 titled as Y.V. Rangaiah Vs. I. Sreenivasa Rao. In this case the process for recruitment as Sub Registrars was initiated. Before the selection could be completed, the rule was amended rendering some of the candidates ineligible on account of change of the qualification/eligibility criteria. It was in this context that the Hon'ble Supreme Court held that the vacancies available prior to amendment are to be filled up in accordance with the unamended rules.
CWP. No. 3549 of 2007 -16-
This judgement has no application to the facts of the present case. In the present case there is no question of eligibility of the candidates. The question of seniority has to be determined on appointment of a candidate. The issue of seniority comes into operation only once the recruitment is completed and appointment is made. Any amendment of a rule which does not pertain to recruitment is irrelevant for the purposes of any condition of service which becomes applicable only after the appointment. It is in this context that the judgement in Arvinder Singh Bains' case (supra) is also to be seen. In the said case Hon'ble Supreme Court was considering the Rule 18 which was held to be mandatory and prescribed a firm rotation of vacancies. However, in the present case, Rule 17 noticed herein above does not seem to be mandatory in nature. From the reading of Rule 17 it appears that the rule prescribed that the appointments from different registers shall be ordinarily made in the manner prescribed by adopting the rotation. The word 'ordinarily' signifies a leverage to the authorities. Thus, it is not practicable to make the appointment in rotation as prescribed under Rule 17. The rule can be relaxed. The judgement in Arvinder Singh Bains' case (supra) was based upon the interpretation of Rule 18 and may have no application to the present case.
It is admitted case of the parties that the petitioners in CWP No. 3549 of 2007 were appointed prior to amendment of Rule 20 i.e. 1.10.1992. It is also admitted case of the parties that the private respondents were appointed on 19.10.1993 i.e. after the amendment. Amended Rule 20 provides for determination of seniority from the date of their appointment and not by rotation as prescribed in the unamended rule. Rule 20 being statutory in nature alone can regulate the seniority at the time of their CWP. No. 3549 of 2007 -17- appointment.
It is a settled proposition of law that availability of vacancies has no relevance with the seniority. A host of judgements have been cited to support this contention; 1996 (1) RSJ 700 titled as Union of India Vs. S.S. Uppal and another. In this case the petitioner claimed seniority from the date the vacancies became available. The Tribunal relying upon Y.V. Rangaiah's judgement (supra) held that the vacancy is to be governed by unamended rule and allowed the writ petition. Hon'ble Supreme Court while allowing the appeal of Union of India rejected the contention of the writ petitioner for determination of the seniority on the basis of the unamended rule with the following observations:-
" 12. We are of the view that the question of seniority of Uppal, the respondent No.1 has to be determined by the rules in force on the date of his appointment to I.A.S. The fixation of seniority in the IAS follows appointment to the service. The Year of Allotment in the IAS will have to be determined according to the provisions of seniority rules which are in force at the time of his appointment. The date of occurrence of vacancy has really no relevance for the purpose of fixation of seniority in the IAS. The fixation of seniority is done only after an officer is appointed to IAS. The Central Govt. is competent to amend the seniority rules from time to time keeping in view the exigencies of administration."
A similar proposition has been decided by the Hon'ble Supreme Court in AIR 2000 SC 85, AIR 1998 SC 1926, 2001 (2) RSJ 122. It is also settled proposition that date of substantive appointment cannot be reckoned from the date of occurrence of vacancy and seniority has to be reckoned only from the date of substantive appointment. Reference can be made to CWP. No. 3549 of 2007 -18- 2007 (1) SCC 683 titled as State of Uttaranchal and another Vs. Dinesh Kumar Sharma, wherein following observations have been made:-
" 28. It is clear from the above that a person appointed on promotion shall not get seniority of any earlier year but shall get the seniority of the year in which his/her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 but can only get promotion and seniority from the time he has been substantively appointed i.e. From 1999. Likewise, the seniority also will be counted against the promotion/appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre i.e. From 19.11.1999."
A similar view has been expressed in 2007 (1) SCC 513 titled as Major General R.S. Balyan Vs. Secy. Ministry of Defence, Govt. of India and others. From the ratio of the aforesaid judgements and the Rule 17 read with amended Rule 20, the only inference that can be drawn is that the seniority has to be determined in accordance with the rules prevalent at the time of appointment. Admittedly, the respondents in CWP No. 3549 of 2007 were appointed on 19.10.1993 and thus the seniority has to be determined with effect from the said date irrespective of the fact that the vacancies for their quota were available in the year 1985.
The fixation of seniority of respondents no.3 and 4 over and above the petitioners in CWP No. 3549 of 2007 vide the impugned order dated 12.12.2006 (Annexure P-7) is, thus, not sustainable in law and is hereby quashed. Consequently, respondents are directed to re-determine the seniority of the petitioners qua respondents no.3 and 4 in accordance with amended Rule 20 of the Punjab Civil Services (Executive Branch) Rules, CWP. No. 3549 of 2007 -19- 1930.
In CWP no. 9712 of 2007 and other writ petitions, the petitioners as also the private respondents were all direct recruits. Petitioners have been appointed on 16.5.1994 on the basis of competitive examination by direct recruitment by way of special recruitment under proviso to Rule 5, whereas private respondents were appointed between 10.12.1999 to 3.1.2005 on the basis of various directions. Respondents no. 2 to 10 had in fact participated in the selection process pursuant to the advertisement notice issued in the year 1992 but they were not selected. Admittedly, their selection is on the basis of various courts' judgements referred in details herein above. It is admitted position that the petitioners were appointed on the basis of an advertisement issued subsequent to June, 1992 advertisement.
The first appointment of private respondents came to be made on the basis of the directions issued in Virender Singh Hooda's case (supra). The relevant directions in Virender Singh Hooda's case are noticed as under:-
" 4. The view taken by the High Court that the administrative instructions cannot be enforced by the appellants and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle. When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same. CWP. No. 3549 of 2007 -20-
5. Therefore, we have no hesitation in directing the respondents to consider the case of the appellants for appointment to posts of the Haryana Public Service (Executive Branch). However, it is made clear that the appellants shall be fitted to the posts ranking below to those who had been selected along with the appellants at the time of recruitment made pursuant to the result declared on 19.6.1992. The appellants will be fitted in appropriate posts and they will be accorded appropriate scale of pay by giving them the benefit of increments, if any, but they will not be entitled to any monetary benefits for the period for which they have been kept out of employment. Let such action be taken by the Govt. expeditiously but not later than a period of three months."
They were ordered to be adjusted below the appointees of 1992 selection. Virender Singh Hooda's judgement was delivered on 13.4.1999 and so is the position with all other private respondents, who were appointed consequent upon the court's judgements in various writ petitions, referred to herein above, their seniority has been fixed pursuant to the directions in Virender Singh Hooda's case.
Mr. Gobind Goyal, learned counsel for the petitioner submits that the directions in Virender Singh Hooda's case to adjust the writ petitioners below the appointees of 1992 selection are not binding upon the petitioners as they were not parties to the writ petitions. His further contention that these directions are per incuriam and should be ignored in so far the question of fixation of seniority is concerned. His further contention is that the seniority is to be determined on the basis of Rule 20 as it existed after the amendment i.e the rule in force at the time of their appointment. According to Mr. Goyal, seniority has to be determined from the date of CWP. No. 3549 of 2007 -21- appointment to the service and not from any anterior date. There is no dispute that Rule 20 provides for fixation of seniority from the date of appointment. However, in the present case the private respondents were admittedly appointed through court directions. It has been clearly held by the court that they were entitled to be appointed against the vacancies became available up to the date of interview in the selection completed in the year 1992. Not only this, the clear directions of the Court are that they shall be adjusted below the appointees of that selection. They have been given the notional benefit of the increments which means their appointment dates back to the point of selection. It is equally admitted case that the petitioners were not party to the said litigation which culminated in the judgement dated 13.4.1999. At the same time, it is equally an admitted position that the petitioners were appointed in subsequent selection. The petitioners did admit to seek clarification/modification of the order in Virender Singh Hooda's case but their applications have been rejected with the observations that no clarification is required and they are entitled to challenge the seniority in accordance with law. The private respondents' appointment is pursuant to the court directions with a clear mandate to place them below the selectees/appointees of 1992 selection with further benefit of notional appointment. They have to be granted seniority accordingly. The judgement of the Hon'ble Apex Court in Virneder Singh Hooda's case is binding upon the State as well upon this Court. Even if, it is assumed that the direction to give them notional benefit of appointment by granting notional increments is to be construed, a direction under Article 142, it has to be implemented in accordance with mandate under Article 144 of the Constitution. This direction in fact cannot be ignored either by the State or CWP. No. 3549 of 2007 -22- by this Court. The question whether these directions are per incuriam may not arise in the facts and circumstances of the present case. In any case, admittedly, the petitioners were appointed on the basis of a subsequent selection. The writ petition of the private respondents was pending and culminated in the final judgement/directions in 1999 when they were appointed.
Under this situation the petitioners cannot claim seniority over and above the private respondents. It is noticed that in subsequent decision in Sandeep Singh's case reported as 2002 (10) SCC 549 while allowing the writ petition Hon'ble Supreme Court imposed an embargo for further relief on the basis of the competitive test held in the year 1992 and also directed that the benefit of appointment to the candidates in Sandeep Singh's case will be prospective. Thus, if, any of the respondents is appointed pursuant to the directions in Sandeep Singh's case (supra), he is not entitled to the benefit of the directions in Virender Singh Hooda's case.
Petitioners in CWP Nos. 19454 of 2007 and 5791 of 2008 have no right to claim seniority over and above the private respondents for the simple reason that these writ petitioners were appointed pursuant to the advertisement issued in March, 1997. Though, they were appointed and joined on 1.6.1999. Admittedly, they are appointees of later selection and cannot claim seniority over and above the private respondents, who were the candidates in the selection held in the year 1992 and have been appointed pursuant to the court directions, though, later than these writ petitioners. CWP Nos. 9712 of 2007, 19454 of 2007 and 5791 of 2008 are thus liable to be dismissed.
Copy of this judgement be placed on each connected file.
(PERMOD KOHLI) JUDGE 3.8.2010.
lucky Whether to be reported? Yes.