Punjab-Haryana High Court
Harmeet Singh Sethi vs State Of Haryana And Others ... on 6 February, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
C.W.P. No. 5587 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No. 5587 of 2006
Date of Decision 06.2.2013
Harmeet Singh Sethi --Petitioner
Vs.
State of Haryana and others --Respondents
CORAM: HON'BLE MR. JUSTICE A.K.SIKRI, CHIEF JUSTICE HON'BLE MR. JUSTICE RAKESH KUMAR JAIN,JUDGE Present: Mr.Gurminder Singh, Advocate, for the petitioner Mr.Randhir Singh,Addl.A.G,Haryana, for respondent Nos.1 to 3 Mr.R.K.Malik, Senior Advocate, with Mr.Samrat Malik, Advocate, for respondent Nos 4 to 7.
A.K.SIKRI, CJ: (Oral) The petitioner has invoked jurisdiction of this Court by filing the writ petition under Articles 226 of the Constitution of India through which he seeks quashing of the order dated 06.2.2006 and also seeks promotion as Senior Lecturer w.e.f. 28.10.2002 after counting the period of adhoc service towards necessary experience. Prayer is also made to the effect that tentative Gradation List (Annexure P-3) be C.W.P. No. 5587 of 2006 2 quashed and the official respondents be directed to declare the petitioner senior to the private respondents after counting the period rendered on adhoc service by the petitioner as Lecturer towards experience of 8 years for the purpose of promotion as Senior Lecturer.
Factual matrix which needs to be noted for adjudicating upon the relief sought by the petitioner is as under:-
The petitioner had joined the service in the department of Technical Education, Haryana and was posted with Government Polytechnic, Sirsa on 01.3.1991. He joined as Part Time Lecturer in Electronics Engineering. Thereafter, he was appointed as Adhoc Lecturer on 27.10.1993. While working as such, he applied for the post of Lecturer on regular basis pursuant to regular recruitment process undertaken by the Haryana Public Service Commission. As he emerged successful in the said selection, he was appointed as Lecturer in Electronics Engineering on regular basis on 21.6.1995.
Next promotion is to the post of Senior Lecturer which is governed by Haryana State Technical Education Department (Group 'A') Service Rules, 1986. Rule 7 to this rule mentions various posts which are governed by 1986 Rules. The post of Senior Lecturer in Electronics Engineering is mentioned at Serial No.24 for which qualifications and experience are laid down in Appendix ''B' to this rule which provides as under:-C.W.P. No. 5587 of 2006 3
1 2 3 4
24 Senior Lecturer in (i)First Class Bachelor's (i) Bachelor's degree in Electronics degree in Electronics ElectronicsEngineerin Engineering Engineering or g or technology or technology from a Associate Member of tecognised Institute of Engineers university/institute (India) (A.M.I.E.) by
(ii) 5 years teaching examination from a experience as Lecturer in recognised Electronics Engineering university/institutes.
in university or college (ii) 8 years experience affiliated to a recognised as Lecturer in university, or 5 years Electronics professional experience Engineering.
on a gazetted Electronics Engineering post.
(iii) Knowledge of Hindi up to Matric Standard.
From the above, it is clear that for promotion from the post of Lecturer by way of direct recruitment, in addition to academic qualifications, which the petitioner possessed 8 years experience as Lecturer in Electronics Engineering is also required. The petitioner who was appointed as Lecturer on 27.10.1993 completed 8 years in that capacity on 26.10.2001, if this period is to be counted from the date of adhoc appointment, otherwise he completed this period on 20.6.2003 from the date of regular appointment to the post of Lecturer.
As per the petitioner, he completed 8 years experience as Lecturer on 26.10.2001 after counting his adhoc service. He, thus, fulfilled the qualifications and eligibility for the post of Senior Lecturer.
It is a matter of record that the promotion process was undertaken not in 2001 but some time later. The persons who were eligible for consideration were considered by the Departmental C.W.P. No. 5587 of 2006 4 Promotion Committee which was constituted for considering the candidates for promotions to various posts including the Senior Lecturers in Electronics Engineering. The petitioner was, accordingly, promoted vide order dated 18.8.2003.
The post of Senior Lecturer can be filled by way of direct recruitment as well. There is a quota earmarked for promotion to the extent of 67% and 33% of Senior Lecturers can be filled up by direct recruitment. Some posts of direct recruits were under process. For this purpose, advertisement was issued in January/February 2003, whereby four posts of Senior Lecturers in Electronics Engineering were to be filled up. Respondent Nos.4 to 7 applied pursuant to that advertisement and underwent the selection process. They were thus found successful in this selection and were appointed to the post of Senior Lecturers. Order dated 27.8.2003 was passed showing respondent Nos.4 to 7 as selected against the post of Senior Lecturers in Electronics Engineering and appointment letters to respondent Nos.5 to 7 were issued on 27.8.2003 and respondent No.4 was issued appointment letter on 29.8.2003.
The dispute has now arisen with regard to inter-se seniority between the petitioner on one hand and respondent No.4 to 7 on the other. The petitioner claims that he is senior to respondent Nos.4 to 7. However, when Tentative Gradation List was issued by the official respondents on 1.7.2005, the petitioner was shown as junior to respondent Nos. 4 to 7. The petitioner filed the Civil Writ petition C.W.P. No. 5587 of 2006 5 No. 14352 of 2005. This petition was disposed on 09.9.2005 directing the official respondents to decide the pending representation of the petitioner. The official respondents considered the representation of the petitioner but rejected the same vide order dated 14.2.2006. Thereafter, another Tentative Seniority List was issued on 03.7.2006 showing the petitioner as junior to the private respondents.
It is at this stage the petitioner approached the Court again by way of the present writ petition seeking the aforesaid relief which has already been stated in the beginning of this judgment.
During the pendency of this petition, final Seniority List has also been issued maintaining the same position. There is another quarrel about the post on which the petitioner on one hand and respondent Nos. 4 to 7 on the other claim promotion and appointment to the post of Senior Lecturer.
Submission of learned counsel for the petitioner is that he should be treated as senior to respondent Nos.4 to 7 on the following pleas:-
(a) The post of Senior Lecturer in the discipline of the petitioner became available on 28.8.2002 as on that date, the petitioner had already fulfilled the eligibility requirement for promotion to this post.
It is submitted that the Departmental Promotion Committee should have been held immediately thereafter and because of the late convening of the Departmental Promotion Committee and considering the case of the petitioner, he cannot be punished and, therefore, date of promotion be treated as the date when the vacancy became available;
(b) In the alternative, it is contended that the Departmental Promotion Committee was convened C.W.P. No. 5587 of 2006 6 on 05.5.2003 on which date the case of the petitioner was recommended for promotion. Again, it is the fault of the respondents who took more than three years in finalising and accepting this recommendation. Therefore, his promotion could be treated to have been made w.e.f. 05.5.2003; and
(c) Alternatively, it is argued that if the date of promotion is taken as 18.8.2003, on which date orders were issued, the petitioner would be senior to respondent Nos. 5 to 7 in whose cases appointment letters were issued on 27.8.2003 and in the case of respondent No.4 on 29.8.2003 i.e. after the date when the petitioner's promotion order was issued. Insofar as seeking of ante dated promotion order and treating it w.e.f. 28.8.2002 when the vacancy is available or w.e.f. 05.5.2003 when the Departmental Promotion Committee made the recommendations to this effect is concerned, these arguments are devoid of any merit. It is merely because the vacancy is available, no body has a right to seek promotion from that date. No body can seek mandamus that immediately on the vacancy becoming available, that be filled up by the employer. Likewise, when the Departmental Promotion Committee considers the case and makes the recommendations, that cannot be the date of promotion because of the simple reason that unless the recommendations of the Departmental Promotion Committee are accepted by the appointing/competent authority, it does not come into effect.
For this reason, appointment of respondent Nos.4 to 7 treated as 31.7.2003 when the selection committee recommended their case cannot be accepted and to that extent the date of 31.7.2003 as the appointment date of respondent Nos. 4 to 7 in the Gradation List C.W.P. No. 5587 of 2006 7 is wrong.
The answer to the entire controversy would, therefore, depend upon the date when the promotion of the petitioner as well as private respondent Nos. 4 to 7 was finalised. It is clear from the above that promotion process as well as selection process moved in close proximity with each other. We had directed the official respondents to produce the original record. We find from the perusal of the record that after the Departmental Promotion Committee recommended the petitioner for promotion on 5.5.2003 and after selection of private respondent Nos.4 to 7 on 31.7.2003, the files thereafter moved together. The files were first put up to F & T (Education), who approved both the lists by separate orders. Thereafter, the files were placed before the Chief Minister on 14.8.2003 and the Chief Minister approved the proposal both for promotion as well as selection on the same date. There upon, letters of appointments were issued .
From the aforesaid, we are of the opinion that the date of promotion of the petitioner as well as that of respondent Nos.4 to 7 is to be treated the same date.
When the promotees and direct recruits are treated to have been promoted/ appointed on the same date, Rule 11 which deals with inter-se seniority of promotees and direct recruits would govern. This rule reads as under:-
"11.Seniority, inter se, of members of the service shall be determined by the length of C.W.P. No. 5587 of 2006 8 continuous on any post in the service;
Provided that where there are different cadres in the service, the seniority shall be determined separately for each cadre;
Provided further that in the case of members appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority;
Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows:-
(a) a member appointed by direct recruitment shall be senior to a member appointed by promotion or by transfer;
(b) a member appointed by promotion shall be senior to a member appointed by transfer
(c) in the case of members appointed by promotion or by transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred ; and
(d) in the case of members appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a member, who was drawing a higher rate of pay in his previous appointment; and if the rates of pay drawn are also the same, then by the length of their service in the appointments, and if the length of such service is also the same, the older member shall be senior to the younger member".
It is clear from the above that in such a situation, direct recruits are to be treated as seniors to those who are appointed by promotion or by transfer. In view of this rule position, respondents No. 4 to 7 would be treated as senior to the petitioner.
Mr.Gurminder Singh, learned counsel for the petitioner has submitted that the petitioner should be treated to have been promoted on 18.8.2003 when the promotion orders in his case were signed and C.W.P. No. 5587 of 2006 9 as the appointment letters of respondent Nos. 4 to 7 are of a later date, he should be treated as senior on that post.
We are unable to accept this submission of the learned counsel for the petitioner. In the first instance, as pointed out above, if the competent authority i.e. the Chief Minister approved both the lists of promotees as well as of the direct recruits on the same date i.e. 14.8.2003; secondly, even in the case of the petitioner, the date mentioned is 18/27.8.2003, as noting shows, thereafter the orders were passed, therefore, it cannot be held that the petitioner was promoted earlier to respondent Nos. 4 to 7.
It is stated at the cost of repetition that as per the available record, both the promotee as well as direct recruits were appointed to the said post on the same date.
We, thus, do not find any fault with the seniority list issued by the official respondents. This petition is bereft of merit and is accordingly dismissed.
(A.K.SIKRI)
CHIEFJUSTICE
06.2.2013 (RAKESH KUMAR JAIN )
rr JUDGE