Pawan Kumar and Another vs State of Haryana and Others

Rakesh Kumar Jain, J.—The case of the appellants is that on 23.11.2001, Respondent No. 1 sent a requisition to the Haryana Public Service Commission (hereinafter referred to as the "HPSC") for filling 3 posts of Haryana Agriculture Service-II officers, reserved for Physically Handicapped category. During the process for selection of these Physically Handicapped category, Respondent No. 1 again sent a requisition for filling 20 posts of General category of HAS-II officers vide letter dated 31.07.2003 and the HPSC, vide its letter dated 10.06.2004, recommended the names of 3 candidates in Physically Handicapped category and 20 candidates in General category, for the purpose of appointment. Admittedly, the candidates belonging to the Physically Handicapped category joined on 28.06.2004 and the General category on 17.06.2004. A dispute arose between the two categories about their inter-se seniority. The candidates belonging to Physically Handicapped category relied upon the advice of the HPSC to justify that since the process of requisition of their posts had been initiated earlier because of the existing vacancies, they necessarily had to be ranked senior to the candidates of General Category as their vacancies accrued and requisitioned later, whereas the stand of the other side was that since the selection list of both the categories was forwarded on the same date i.e. 10.06.2004, therefore, both the selections had been construed to be a part of the same process and since the candidates belonging to General category were higher in merit, recommended and joined prior in time are senior in view of Rule 11 of the Haryana Agricultural (Group-B) Service Rules, 1995 (hereinafter referred to as the "Rules").

The learned single Judge, while relying upon the aforesaid Rule, allowed the writ petition and the impugned seniority list was quashed directing the respondents to re-determine the seniority in terms of the observations made in the impugned order.

Learned counsel for the appellant has vehemently argued that in terms of the letter of the HPSC dated 18.01.2008, the appellants have to be treated senior to the General Category candidates as not only their vacancies became available earlier but also the requisition thereof was made at an earlier point of time. The appellants should not be allowed to suffer for the lapse on the part of the HPSC who though started process earlier but did not conclude it within time and recommended the names of the appellants along with the names of the candidates of General category for the purpose of appointment.

Learned Counsel for the private respondents have reiterated their stand alleging that the selection list was sent on 10.06.2004, pertaining to both the categories, but the candidates belonging to General Category joined on 17.06.2004, whereas the appellants joined on 28.06.2004. They also refer to Rule 11 of the Rules to contend that the inter se seniority of the members of the Service is to be determined by the length of continuous service on any post in the service and not on the basis either of the accrual of the vacancy or sending the requisition at an earlier point of time.

We have heard learned Counsel for the parties and perused the record.

There is no dispute about the facts and the issue has just boiled down as to how the seniority of both the categories is to be determined in terms of the Rules. In this regard, there is a clear cut guidance provided in Rule 11 of the Rules, which reads as under:--

Seniority.--Seniority, inter se of members of the Service shall be determined by the length of continuous service 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 a member 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 transfer;

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

(c) in the case of a member appointed by promotion or by transfer, seniority shall be determined according to the seniority of such member 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 the length of such service is also the same, the older member shall be senior to the younger member.

A bare look at the aforesaid Rule shows that it is the length of continuous service on any post in the service which is the relevant factor to determine the inter se seniority of the members of the service. It is also not in dispute that there is no such Rule that in case the vacancy had accrued earlier and requisition is also sent by the Department to the HPSC for filling up that vacancies at an earlier point of time and the recommendation is made by the HPSC jointly with regard to the another category which was requisitioned later on, the persons for which the requisition was made earlier would be treated senior.

The learned single Judge has also referred to a decision of the Supreme Court in the case of Nani Sha and Others Vs. State of Arunachal Pradesh and Others, ). The relevant portion of the said judgment is also reproduced here as under for ready reference:--

Therefore, one thing is certain that the appellants did not have right to claim a retrospective seniority, particularly over and above the respondents who had been working in the post of ACF right from July, 1996.

This Court in a reported judgment in State of Uttaranchal and Another Vs. Dinesh Kumar Sharma, has clearly held that the seniority is to be reckoned hot from the day when the vacancy arose but from the date on which the appointment is made to the post. There this Court was interpreting Rules 17 and 21 of the U.P. Agriculture Group B Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority Rules, 1991. This Court disapproved the stance taken by the High Court that the directions should have been given not from the date of appointment but with retrospective effect when the vacancy arose. The following observations in para 34 are speaking and would close the issue:

Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent''s contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik and Others Vs. State of Orissa and Others,

It has also not been brought on record that there existed any Rule of rota-quota which would be applied in the case of the appellants. Keeping in view the totality of the circumstances, we are of the considered opinion that there is no error in the order of the learned single Judge and as such, this appeal is hereby dismissed being denuded of any merit.