Navneet Walia vs State of Punjab and Others

Augustine George Masih, J.—Petitioner has approached this Court impugning orders dated 11.11.2010 (Annexure P-18) and orders dated 16.11.2010 (Annexure P-19) and 16.11.2010 (Annexure P-20, which is the final seniority list) which are orders passed in pursuance to the order dated 11.11.2010. It is the contention of the counsel for the petitioner that the order dated 11.11.2010 (Annexure P-18) is not in consonance with the statutory Rules governing the seniority of the petitioner. He contends that the service of the petitioner as well as the private respondents is governed by the Punjab Department of Technical Education and Industrial Training (Technical Wing) Group-A Service Rules, 2001 (hereinafter referred to as ''2001 Rules''). Rule 9 of the said Rules lays down that in respect of matters, which are not specifically provided in these Rules, the members of the service shall be governed by the provisions of the Punjab Civil Service (General and Common Conditions of Service) Rules, 1994 (hereinafter referred to as ''1994 Rules''). There is no specific rule in the 2001 Rules, which would determine the seniority of the members of the service. Rule 8, therefore, of the 1994 Rules would govern the seniority of the members of the service. According to this Rule, the inter se seniority of the persons appointed to posts in each cadre of a service is to be determined by the length of continuous service on such posts in that cadre of the service. Although provisos are there to the said Rules but the same would not be applicable to the case of the petitioner as the petitioner and the private respondents belong to different cadre and these provisos would not be applicable to determine the seniority inter se for promotion to the post of Senior Lecturer.

Counsel for the petitioner further contends that the petitioner, in pursuance to an advertisement issued by the respondents dated 26.08.1995, applied for the post of Lecturer in Commercial and Secretarial Practice. He was duly selected by the Punjab Public Service Commission and his name was recommended on 25.01.1996. The appointment letter was issued to the petitioner on 25.03.1996 (Annexure P-4) and on the basis of the said appointment letter issued to the petitioner, he joined service. Respondents No. 4 and 5 applied in pursuance to an advertisement issued by the Punjab Public Service Commission on 19.11.1994 (Annexure P-1). Recommendations, after their selection, were made by the Punjab Public Service Commission on 05.12.1995 and they were issued appointment letters on 10.07.1996 (Annexure P-2). In pursuance thereto, they joined service subsequent to the date of joining of the petitioner. He, on the basis of this, contends that even if Rule 8 is made applicable to the claim of the petitioner as well as respondents No. 4 and 5 for the purpose of determining seniority for promotion, the length of continuous service would be the determinative factor and since the petitioner has longer service than respondents No. 4 and 5, he is bound to be declared as senior. He, accordingly, contends that the impugned orders cannot sustain and deserve to be set aside.

On the other hand, counsel for the State submits that there was no fault on the part of respondents No. 4 and 5. They were appointed in pursuance to an advertisement and their recommendation also was much prior to that of the petitioner and, therefore, merely because appointment letter has been issued to respondents No. 4 and 5 subsequent to that of the petitioner, they cannot be put to an disadvantageous position. The right of respondents No. 4 and 5 has been adversely affected because of inaction on the part of the department, for which the private respondents cannot be penalized. She contends that as per proviso to Rule 8, the merit determined by the Punjab Public Service Commission cannot be changed as the petitioner as well as respondents No. 4 and 5 joined within the time, which was stipulated in the appointment letters issued to them. A contention is put forward that the batch of respondents No. 4 and 5 would be treated prior to that of the petitioner as their advertisement and the recommendations were prior to that of the petitioner. Accordingly, it is contended that the impugned orders are in accordance with law and, therefore, deserve to be sustained.

Counsel for the private respondents also have made the same submissions as the counsel for the State.

On considering the submissions made by the counsel for the parties and on going through the statutory Rules governing the service, I am of the considered view that the impugned orders cannot sustain.

It is an admitted position that the service of the petitioner as also the private respondents is governed by the 2001 Rules. In the said Rules, there is no specific Rule dealing with the seniority of the members of the service and according to Rule 9, where the Rules are silent, the 1994 General Cadre Rule would be applicable. Under the 1994 Rules, Rule 8 deals with the seniority of the members, which reads as follows:--

Seniority:--

The seniority inter se of persons appointed to posts in each cadre of a service shall be determined by the length of continuous service on such posts in that cadre of the service;

Provided that in case of person recruited by direct appointment who join within the period specified in the order of appointment or within such period as may be extended from time to time by the appointing authority subject to a maximum of four months from the date of order of appointment, the order of merit determined by the commission or the Board, as the case may be, shall not be disturbed;

Provided further that in case a person is permitted to join the post after the expiry of said period of four months in consultation with the Commission or the Board, as the case may be, his seniority shall be determined from the date of joining the post;

Provided further that in case any person of the next selection has joined a post in the cadre of the concerned service before the persons referred to in the proceeding proviso joins, the person so referred shall be placed below all the persons of the next selection, who joins within the time specified in the first proviso;

Provided further that in the case of two or more persons appointed on same date, their seniority shall be determined as follows:--

(a) a person appointed by direct appointment shall be senior to a person appointed otherwise:--

(b) a person appointed by promotion shall be senior to person appointed by transfer;

(c) In the case of persons appointed by promotion or transfer, the seniority shall be determined according to the seniority of such persons in appointments from which they were promoted or transferred; and

(d) In the case of persons appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a person who was drawing a higher rate of pay in his previous appointment; and if the rates of pay drawn as also the same, then by their length of service in these appointments and if the length of service also the same an older person shall be senior to be younger person.

Note:--Seniority of persons appointed as purely provisional basis or on ad hoc basis shall be determined as and when they are regularly appointed keeping in view the dates of such regular appointments.

A perusal of the above Rule would show that the basis for determining the seniority inter se of the persons appointed to posts in each cadre of a service shall be the length of continuous service of such posts in that cadre of service. None of the proviso to this Rule would be applicable as far as the case in hand is concerned as the petitioner belongs to the cadre of Lecturer, Commercial and Secretarial Practice whereas respondents No. 4 and 5 belong to the cadre of Commerce and separate seniorities are maintained of the members of these cadres by the respondent-department. This is apparent from Annexure P-9 dated 27.03.2003 which gives the final seniority list of Lecturers separately.

For the purpose of preparing seniority list of Lecturers for promotion to the post of Senior Lecturer (Non-Engineering) in Modern Office Practice, the seniority of the members of the cadre, who are eligible for consideration for promotion is provided in Appendix ''B'' Entry 8. As per this Entry, for promotion to the post of Senior Lecturer in Modern Office Practice, inter se seniority of Lecturers in the branches of Commercial Practice, Commercial and Computer Practice, Office Management Practice, Secretarial Practice, Office Management Automation, Stenography and Secretarial Practice and Accountancy is to be taken into consideration and for that, it is further provided that it should be from the respective dates of appointment against the post.

In the light of the above, it is clear that the seniority of the members of the service, who are eligible for consideration for promotion to the post of Senior Lecturer in Modern Office Practice is to be determined as per the provisions provided in the said entry No. 8. This leaves no manner of doubt that the length of service would be the determinative factor as far as the seniority for promotion to the post of Senior Lecturer in Modern Office Practice is concerned from the respective dates of appointment against the post as such.

Admittedly, the petitioner was appointed on 25.03.1996 whereas respondents No. 4 and 5 were appointed on 10.07.1996. Therefore, the petitioner is senior as per the statutory Rules governing the service. That apart, a person, who is not a member of the service, cannot be granted seniority prior to he becoming a member of the said service.

It would not be out of way to mention here that none of the proviso''s to Rule 8 of 1994 Rules would be applicable to this case as the advertisement, post, selection, recommendation of the petitioner and respondents No. 4 and 5 is different, even the cadre is different and the seniority maintained by the department is separate. When none of the proviso''s apply then the substantive rule would determine the seniority i.e. the continuous length of service on a post, according to which petitioner is senior to respondents No. 4 and 5.

The impugned order dated 11.11.2010 (Annexure P-18) thus, cannot sustain and is hereby quashed. The consequential orders dated 16.11.2010 (Annexure P-19) and order dated 16.11.2010 (Annexure P-20) shall also stand quashed. The writ petition stands allowed accordingly.