Punjab-Haryana High Court
Jagdish Chand Aggarwala vs The Haryana State Federation Of ... on 16 February, 2001
Author: Bakhshish Kaur
Bench: Bakhshish Kaur
ORDER Bakhshish Kaur, J.
1. The petitioner joined the service of Haryana State Federation of Consumers Corporation Wholesale Stores Limited, Chandigarh (hereinafter called Confed) on 10.1.1977 as Storekeeper in the pay scale of Rs. 200-10-300-15-450 on probation basis. He successfully completed the probation period and his services were regularised in the year 1978. The Common Cadre Rules 1975 lays down the service conditions and method of recruitment to various posts including that of Storekeeper and his service conditions are governed thereunder. Prior to the coming into force of the Common Cadre Rules, the posts of Storekeepers, Assistants,' Clerks and Salesmen in the various Central Cooperative Consumers Stores having their different managements in the State of Haryana were being filled up by the managements of the Central Cooperative Consumers Stores, irrespective of their qualifications, eligibility and pay scales. Thus all the Storekeepers working in such Stores were getting different consolidated salary and no regular pay scales were given to them up to 22.4.1979. In pursuance of Rule 1.3 of the Common Cadre Rules, respondent No. 1 included the ex-cadre posts of the various Stores into the cadre posts w.e.f. 23.4.1979 as per Annexure P-l. Thus, the services of respondents No. 2 to 7 and various other employees were taken over on its cadre by respondent No. 1 w.e.f. 23.4.1979 from the managements of various Stores. Respondents No. 2 to 7 were drawing much less salary as compared to the petitioner.
2. In May, 1979, a tentative seniority list was prepared. The petitioner being the seniormost was entitled to be placed at serial No. 1 on the basis of his length of service in the Confed and on the basis of higher pay scale, but to his utter dismay he was shown at serial No. 19 and respondents No. 2 to 7 and others were shown senior to the petitioner. The seniority list is Annexure P-2. The representation submitted by the petitioner for assigning him correct place in the final seniority list had no effect, therefore, the present civil writ petition is filed for quashing the impugned seniority list Annexure P-5. He has also prayed for issuance of directions to respondent No. 1 to promote him to the post of Assistant Manager w.ith effect from the date when his juniors have been promoted.
3. Respondent No. 1 raising the preliminary objections has averred that the seniority list of Storekeepers has been finalised in compliance with the orders issued by the Hon'ble Chief Justice and Hon'ble Mr. Justice M.S. Liberban on 25.8.1987 in C.W.P. No. 2185 of 1987. Thus, the petitioner cannot challenge the seniority list as the same has been finalised keeping in view the provisions of Rule 13.1 to 13.3 of the State Service Rules. He did not possess five years experience as Assistant/Storekeeper when R.R. Kaushik was promoted as Assistant Manager on 4.2.1981. Therefore, he was not eligible for promotion on 4.2.1981. His claim for promotion is misconceived and is not tenable. He had joined as a Storekeeper on 10.1.1977, therefore, his seniority has been correctly determined.
4.1 have heard Shri G.C. Gupta, learned Counsel for the petitioner. Shri A.P. Bhandari, learned Counsel for respondent No. I and Shri D.S.Bali, learned Counsel Advocate assisted by Mr. D.V. Gupta, Advocate for, respondents No. 2 and 3.
5. Mr. Gupta, learned Counsel for the petitioner, contended that the petitioner was appointed as Storekeeper in the pay scale of Rs. 200-10-200-15-450 whereas respondents No. 2 to 7, who were working in different Stores in the State of Haryana were drawing less salary and even after their merger in the cadre of respondent No. 1 with effect from 23.4.1979, they were granted the lower pay scale of Rs. 160-10-280-15-400 plus usual allowances with effect from 23.4.1979, therefore, the petitioner could not be placed below respondents No. 2 to 7 in the matter of seniority. To support his argument that a person in the lower scale cannot be treated as senior to a person in the higher scale, he places reliance on Union of India v. Molian Singh, 1999(2) SCTS53.
6. In para 5, the petitioner has specifically stated that he is getting higher pay scale whereas respondents No. 2 to 7 were granted lower pay scale w.e.f. 23.4.1979.
7. Adverting to the written statement filed by respondent No. 1 no specific answer has been given to this para and the only fact stated therein is that para 5 as stated is not relevant. This apart, the petitioner has averred that after coming into force of the Common Cadre Rules and after the decision of respondent No. 1 dated 30.4.1979, Annexure P-l, whereby it was resolved by the Board that all the employees of the Con-fed/Stores should be covered under the Common Cadre Rules, including the ex cadre posts of the various Stores into the cadre posts w.e.f. 23.4.1979, the petitioner was entitled to be placed at serial No. 1 as he was seniormost in the service of Confed as compared to respondents No. 2 to 7 on the basis of his length of service and higher pay scale drawn by him. The reasons for not treating them senior to the petitioner are indicated in para 13 of the petition. Shri S.C. Jain, respondent No. 2 shown at serial No. 1 was appointed as Manager in the Sonepat Primary Cooperative Consumer Store on 5.2.1985. Later on, when the Store was converted into Central Store in the year 1975, he was appointed/promoted as Assistant Manager by Sonepat Store on 11.2.1975 in pursuance of the decision of Board of Directors. Thus, his name should have been shown in the seniority list of Assistant Manager and not in that of Storekeepers. Similarly, respondent No. 3 was appointed as Storekeeper on 1.3.1969 on a consolidated salary. His services were taken away by the Confed at the time of merger on 23.4.1979. Therefore, his seniority should have been determined with effect from 23.4.1979.
8. As regards Mohan Lal, respondentNo. 4 and R.D. Sharma respondent No. 5, it is averred that they were appointed as Storekeeper and Salesman w.e.f. 3.1.1973 and 17.7.1974, respectively, while R.N. Sharma-respondent No. 6 was appointed as Storekeeper on 14.6.1975 and D.P. Sharma-respondent No. 7 was appointed as Accounts Assistant on a consolidated salary of Rs. 280/- per month. Therefore, when their services were taken over by the Confed on 23.4.1979 then their seniority should have been w.e.f. 23.4.1979 and not earlier to that. !t is, therefore, contended that seniority of such persons has to be determined in order of dates of their absorption, as held in Harbhajan Singh v. State of Punjab, 1999(1) SCT32 (P&H). It was a case where seniors were retrenched and absorbed later. Thus, it was held that they will rank junior in the absorbing department unless there was agenerat policy of absorption to absorb all the employees of wound up department.
9. The learned Counsel for the petitioner has also placed reliance on a number of authorities of this Court reported as Balwinder Singh v. Registrar, Cooperative Societies, Punjab, 1996(3) SCT 37; Slier Singli v. The Cantonment Board, Ambala and others, 1996(3) SCT 256 (P&H); Ram Nagina Prasad v. The Union of India and others, 1979(3) SLR 379 (Patna); and Hari Om Verma v. State of Punjab, 1996(4) SCT244 (SC). It would not be out of place to mention here that in para 13 of the petition, as above, the petitioner has given the details of the appointment of respondents No. 2 to 7, their designation as well as their service having been taken over by the Confed at the time of merger and that respondents No. 5 and 7 were drawing consolidated salary of Rs. 150/- and Rs. 280/- per month, respectively, which fact has not been denied by-respondent No. 1 in the written statement specifically. Rather, it remained contented by giving an evasive reply that para 13 as stated is wrong and denied and the petition is highly belated and the promotions of seniors already made do not deserve to be set aside. Such a reply is considered to be not only evasive reply, rather it would amount to admission on the part of respondent No. 1. Thus, where respondents No. 2 to 7 who were drawing pay in a lower scale as compared to the petitioner, then the service rendered by those persons in the lower pay scale cannot be equated to that of Storekeeper so as to give benefit of length of service for the purpose of seniority, as has been held in Sher Singh's case (supra). Respondent No. 1 has averred in the reply that the Assistant Storekeepers serving irt the Stores were equated as Storekeepers for the purpose of determining their seniority. In Hari Om Verma's case (supra), it was held by the Apex Court that necessarily the person who is having higher scale of pay either as Stenographer or Assistant shall be treated to be senior to the person who is drawing lower scale of pay.
10. Taking into consideration all these facts, the petitioner could not be treated as junior to respondents No. 2 to 7. He should have been equated senior to those respondents in the seniority list Annexure P-5 prepared by respondent No. 1.
11. For the aforesaid reasons, this writ petition is partly allowed. The seniority list Annexure P-5 is quashed. The petitioner be treated as senior to respondents No. 2 to 7 and the seniority list be reissued and prepared accordingly.
12. So far as his prayer to promote him to the post of Assistant Manager with effect from the date his juniors have been promoted is concerned, the same is left open to he considered by respondent No. 1 because according to respondent No. 1 he did not posses five years experience when R.R. Kaushik was promoted as Assistant Manager on 4.2.1981. The petitioner will, however, be at liberty to approach the competent authority with regard to his claim for promotion which will be considered within a period of six months from the date of filing of representation, if any.
13. Petition partly allowed.