Kishan Dev and others vs The State of Punjab and other

P.C. Pandit, J.—Krishan Dev and three others (Prem Kumar, Romesh Chander and Maghar Singh) have filed this petition under Article 2:6 of the Constitution for challenging the seniority list (Annexure ''H'' to the writ petition) prepared by the General Manager, Bhakra Dam, Nangal Township, respondent No. 2, in consultation with the Chief Engineer Central Irrigation Works Punjab, Chandigarh, respondent No. 4 and the Director, Construction and Plant Design, Nangal Township, respondent No. 3 and for quashing the order dated 11th August, 1965 (Annexare ''I'' to the Writ petition) promoting Mohan Singh and four others (Mela Ram, Harbans Singh, Mangal Singh and M C. Bhattacharya), respondents 5-9, as Head Store keepers and refusing to promote petitioner No. 1 as such on the basis of the seniority list (Annexure ''H'').

The petitioners were class III Government servants belonging to Circle cadre establishment of the Punjab Irrigation Department and w"re governed by the Punjab Public Works Department (Irrigation Branch),, Store-Keepers'' State Service, Class III Rules, 1955 (hereinafter called the Rules). They joined as temporary store-keepers in the scale of Rs. 50 - 3 80/4 100. Kishan Dev, petitioner No. 1, was appointed on 13th of June. 1953, while the other petitioners on 21st October, 1957, 11th June, 1962 and 9th December, 1957 respectively. Petitioner No. 1 had been confirmed as a store keeper with effect from 1st March, 1960, while the other petitioners were still temporary hands. With the commencement of Bhakra Project, temporary posts of different categories of employees including Store Munshis, were created according to the needs of the Project. Mohan Singh and others, respondent 5-9, were appointed against the temporary posts of Store Munshi''s on 10th February, 1948, 25th June. 1948, 26th June, 1948, 29th June. 1948 and 9th June, 1951 respectively in the grade of Rs. 80-4 100/5-125. In 1954 certain store-keepers submitted a representation to the Administrative Officer, Directorate of Construction and Plant Design, praying that a higher grade like that of the Store Munshis should be given to them as well or they be appointed to the posts of Store Munshis. In the latter case, however, their seniority to service should not be affected and the Store Munshis, who had been recruited directly after the date of appointment of the Store-keepers, should be considered junior to them. On a reference of this issue to respondent No. 4, the said representation was rejected. From 1st of May 1957, the revision of scales of pay of different Categories of employees was declared by the Government. The grade of the store keepers was also revised to Rs. 60 4 - fe0/5-l 20/5-175. The scale of pay of the store munshis, however, was not changed. According to the return filed by the Government, this happened because the store munshis'' was an isolated category only in Bhakra Dam Administration and consequently, did rot attract the attention of the Government while considering the revision of scale of pay of the various categories of establishment in Punjab, including the store-keepers. This commission, according to the Government, naturally resulted in discontentment amongst the store munshis who had heavier responsibilities as custodians of stores worth lakhs of rupees. As such they represented against the treatment meted out to them. The Bhakra Administration, having considered their demand to be genuine, took up the matter, for revision of their scale of pay to that of Head Store-keepers viz Rs. 106-6-160/a 200, with the Finance Department in 1959 Tin said proposal remained under consideration for along time aid ultimately in 1963, the Government agreed to the alternative proposal of converting the posts of stare munshis into those of store keepers in the scale of Rs. 60-4-80/5-120/5-175 After this, the question naturally arose as to how their seniority as against the storekeepers was to be determined. With that end in view, the General Manager, Bhakra Dam, discussed this matter with the Chief Engineer, Irrigation and the Director, Construction and Plant Design and it was decided that on conversion of posts of store munshis to those of store keepers, the inter seniority of both these categories be fixed from the date of joining by the incumbents, taking into account the past service rendered by the store-munshis. In accordance with this principle the joint seniority list (Annexure ''H'' to the writ petition) was prepared on 23rd January 1964, with the result that respondents 5-9, who had joined the service much earlier when the petitioners, became senior to them On 24th May, 1965, petitioner No. 1, who alleged himself to be the senior-most store keeper in his cadre, applied for promotion to the post of Head Store-keeper. He was, however, informed on 8th June, 1965 that he being junior i.e. at S.No. 16 of the inter se seniority list, the question of his promotion did not arise. Subsequently, respondents 5-b were promoted as head store-keepers, because of their seniority. That led to the filing of the present writ petition in January, 1966

It might be mentioned that on the basis of the permanent requirements of the Bhakra Project, 10 permanent posts of store-munshis were sanctioned with effect from 1st March, 1860 in the grade of Rs. 80-4- 100/5-125 against which the senior-most store munshis, including respondents 5-9, were confirmed with effect from that date.

Learned Counsel for the petitioners submitted that respondents 5-9 could not be placed Higher than petitioner No. 1 in the seniority list and promoted as head store keepers in preference to him. In doing so, the Government has clearly violated the provisions of rule 12 by which alone the seniority of the storekeepers was governed. Respondents 5-9 had been recruited as store-munshis on an entirely temporary basis without regard to the age limit and that is why they were given higher salary. They could not be given preference over the petitioners who were Government employees in a permanent cadre of storekeepers. Their service as store-munshis could not be taken into consideration for determining their seniority in the cadre of store keepers. They were appointed store-Keepers by transfer from their cadre of store-munshis under rule 10(i)(b). The petitioner was confirmed as a store-keeper on 1st March, 1960, while the respondents 5-9 were confirmed as store-munshis on the same date and they were yet not confirmed as storekeepers. Their seniority, however, under rule 12 had to be determined by the date of confirmation In the cadre of store keepers. That being so, petitioner No. 1 was senior to them. In the instant case, the various clauses of rule 12 would be seen in order to determine the seniority inter se amongst respondents 5-9, because all of them had come to the cadre of storekeepers by transfer from another Government Department. These clauses would, in no case, govern the seniority between the petitioners and respondents 5-9. Under these circumstances, according to the" Learned Counsel the seniority list prepared by the Department the promotion of respondents 5-9 as head storekeepers and the refusal to make petitioner No. 1 as the head store-keeper were all contrary to law.

It is conceded that the petitioners were junior store keepers and respondents 5-9 were also now in this very service. It is true that under rule 10(i)(b) junior store keepers could be appointed either by direct appointment or by transfer of the officials already in the service of the State or of the Union. Undoubtedly, respondents 5-9 were serving the Government of the State of Punjab as store munshis before they joined this cadre. Rule 12 on which main reliance is placed by the Learned Counsel for the petitioners says:

The seniority of members of the Service in the grade shown in Appendix A to these rules shall be determined by the date of confirmation in that grade provided that if two or more members are confirmed in a grade on the same date:

(a) a member recruited by promotion shall be considered senior to a member recruited otherwise;

(b) a member recruited by transfer from a cadre in any department of a State or of the Union other than the Punjab Public Works Department (Irrigation Branch), Storekeepers'' State Service Class III Cadre, shall be senior to a member recruited by direct appointment;

(c) in the case of members recruited by promotion seniority shall be determined according to the seniority in the grade from which the members are promoted;

(d) * * *

(e) * * *

(f) * * *

According to rule 2(j), ''Service'' means the Punjab Public Works Department (irrigation Branch), Storekeepers'' State Service, Class III, and according to rule 3, the service shall comprise the posts shown in Appendix A to these rules. Appendix A mentions store keepers (senior) and store keepers (Junior), their grades and the number of posts in each category. According to the petitioners, under rule 12, the seniority of the members of the service in each grade would be determined by the date of confirmation in that grade and according to the proviso to the rule, if two or more members were confirmed in a grade on the same date, their seniority would be determined by the various clauses (a) to (f) given in the rule. Respondents 59 were not confirmed in the grade of store keepers, while petitioner No. 1 had been so confirmed on 1st March, 1960. That being so, argued the counsel, petitioner No. 1 would rank senior to them.

In the present case, however, there is no question of the applicability of rule 12 for determining the seniority between the petitioners and respondents 5 9. The latter had not been recruited as junior store keepers under role 10(1)(b). There is no manner of doubt that the petitioners had joined the service as store keepers from the very beginning and it was a permanent cadre. As pointed out in paragraph 3 of the return filed by the State, with the commencement of Bhakra Project, temporary posts of different categories of employees were created by the Government for the needs of the Project. Store Munshis belonged to one such category. Respondents 5-9 were appointed store munshis on a temporary basis in the year 1948 and 1951. The store munshis, according to the Government, used to look after stores worth lakhs of rupees and specialised items of stores such as spare parts for various categories of machinery, electric goods, lubricants, various instruments and other engineering tools and stores of typical nature not commonly dealt with in normal stores Their responsibilities were heavier than those of the store keepers and that is why they were given a better grade. In 1957, the Government revised scales of pay of different categories of their employees with the result that the pay of store keepers was also raised from Rs. 60 - 3 - 80/4 -100 to Rs. 60-4 80/5-120/5-175. It so happened, however, that the scale of pay of the store munshis was not revised, possibly because as mentioned in the return, there was an isolated category in Bhakra Dam Administration only. This omission on the part of the Government naturally created dissatisfaction amongst the store munshis who were in a higher grade than the store keepers They made representations to the Government, which thought that their demand was genuine. The Bhakra Dam Administration thee took up the matter for revision of their pay and recommended that their grade should be raised to that of the head store keepers viz. Rs. 106 - 6 - 160/8 200. This happened in 1959. The matter remained pending and ultimately in 1963, it was decided that the posts of store munshis be converted into those of store keepers in the scale of Rs. 60 -4 - 80-5/ 120/6 -175. In the meantime the Govern merit sanctioned 10 permanent posts of store-munshis with effect from 1st April, 1960 in the grade of Rs. 80-4-100/5 -125 against which respondents 5 9, who were the senior most store munshis were confirmed from that date. From what has been stated above, it would be apparent that the store-munshis, were never considered inferior to the store-keepers. It is further clear that they were not appointed store-keepers under rule 10(1)(b) of the Rules. Store-Munshis'' was a separate category and they were drawing higher salaries than the store-keepers. They had joined the service much earlier than the petitioners In 1963, the scale of pay of both the categories was brought at par and their designation was also made the same and since they were working in the same Department and in the same circle, it was consider d desirable that, the two categories should be amalgamated and all the store-keepers en block brought in one list. At that time the question arose as to how their seniority inter se was to be fixed. There was no rule covering a situation of this kind in the Punjab Public Works Department (Irrigation Branch). Storekeepers'' State Service Class III, Rules, 1955, because naturally the rule-makers had not contemplated such a contingency. The Government bad however, to take a decision and the officers concerned resolved that the same should be fixed from the date of joining service by the various incumbents. In other words, the length of service of each employee in the two categories was taken into account in this connection. This was, in my view, quite a fair and just principle, especially when we bear in mind that the original scale of pay of the store munshis was higher than that of the store keepers. It was conceded that the impugned seniority list was indisputably based on this principle. A question, however, arises, whether in the absence of specific rules on the subject, the Government could take such a decision and fix the seniority in that manner. Undoubtedly, under Article 309 of the Constitution, the Government could make rules in that behalf, but that does not mean that till the statutory rules, are made the Government could not take administrative decisions regarding the principles to be followed in determining the seniority of the officers in such a contingency, when two cadres are amalgamated. In this connection reference may be made to the Supreme Court decision in Sita Ram Sharma v. State of Rajasthan 1967 S.L.R. 996.

In a somewhat similar case in Pritam Singh v. State of Punjab and another C.W. 2598 of 1965, C.W. 2598 of 1965, where the two categories of teachers, one under the administrative control of the Irrigation Dipartment and the other under the Education Department, were amalgamated and the Education Department had given seniority to the teachers coming from the Irrigation Department from the date of their joining the Education Department teachers cadre and the teachers of the Irrigation Department having approached this Court in writ proceedings Kaushal, J. quashed that order on 2.5 September 1966 and held that the seniority should be determined on the basis of the length of service in the two respective categories.

It is also note-worthy that the provisions of rule 12 do not ran contrary to the principle adopted in drawing up the impugned seniority list and as a matter of fact it lends support to the action taken by the Government. Length of service was a valid consideration for determining the seniority, as would be clear from the various clauses of rule 12. Under these circumstances the seniority list drawn by the Government was quite valid and fair and the promotion of respondents 5 9 as head storekeepers in accordance with that seniority list was also in order. Petitioner No. 1 who was junior to respondents 5 9 in the said seniority list had thus been rightly refused promotion.

The result is that this petition fails and is dismissed. In the circumstances of this case, however, I would make no order as to costs.