Ram Gopal vs State of Punjab

S.S. Nijjar, J.—In this petition, under Article 226 of the Constitution of India, the petitioners have impugned the final seniority list of Assistants working in the department of Directorate of Employment, Punjab dated 13.1.83 (Annexure P-8) wherein they have been shown junior to respondents No. 3 to 11.

The petitioners were selected by the Punjab Subordinate Services Selection Board and appointed on the posts of Clerks. The service conditions of the petitioners as well as the respondents are governed by the Punjab Employment Department (State Service-Class III) Rules, 1964 (hereinafter referred to as the 1964 rules). Further promotion from the post of Clerk is to the post of Assistant. Rules 10(1)(h), 10(1)(i) and 10(1)(i) provide that in the Directorate of Employment, an Assistant working in the Employment Exchange having three years experience on the post of Assistant in the Employment Exchange can be promoted as Assistant. It also provides that 33-1/3 per cent of the posts shall be filled by the direct recruitment. Rule 10(1)(j) provides for promotion to the post of Assistant in the Employment Exchange from amongst clerks and steno-typists having three years experience as Clerk. Here it is provided that 50 per cent of the post shall be filled by direct recruitment. Without any amendment in the rules, by executive or- der, the posts of Assistant earlier carrying the pay scale 116-250, 106-200 were merged into unified cadre of Assistant carrying the pay scale of Rs. 160-400. The unification was made on the recommendation of the pay Commission w.e.f. 1.1.68. The posts of Assistants in accordance with the earlier practice continued to be filled, 66-2/3 per cent by promotion and 33-1/3 per cent by direct recruits. All the petitioners fulfilled the qualifications for being appointed by promotion on the post of Assistants. By identical orders, all the petitioners were temporarily promoted on the posts of Assistants on the following dates :-

SN.

Name

Date of Appointment as Clerk

Continuous date of Promotion to the post of Assistant

S/Shri

1.

Ram Gopal Kakkar

10.12.1958

23.5.1974

2.

Pritam Singh

9.7.1959

7.5.1973

3.

Santokh Singh

27.1959

21.6.1974

4.

Inder Singh

12.1.1960

1.7.1975

5.

Kishan Chand Garg

3 .5 .1960

1.10.1975

6.

Madan Lal Kansal

27.6.1960

9.10.1975

7.

Dev Raj

28.2.1961

15.6.1974

8.

Piara Singh Paul

1.3.1962

5.9. 1974

9.

Mohinder Singh

1.3.1962

23.7.197

10.

Jagdish Raj

15.5.1963

24.2.197

Although the petitioners have been working continuously on the posts of Assistants from the dates mentioned above. Their promotions were regularised by order dated 3.4.1979 w.e.f. 12.3.1979. In the meantime, a requisition had been sent for direct recruitment on nine posts in the year 1975. The Subordinate Services Selection Board made the recommendation for appointment of the respondents by way of the direct recruitment in its letter dated 19.7.1978. They were, however, regularly appointed with effect from the following dates :-

SN.

Name

Continuous date of Appointment to the post of Assistant

S/Shri

1.

Sher Singh

18.4.1979

2.

Jawahar Lal

26.4.1979

3.

Hari Singh

16.4.1979

4.

Kashmir Singh

16.4.1979

5.

Ritmesh Chander

10.4.1979

6.

Jagdish Raj

16.4.1979

7.

Ramesh Das

16.4.1979

8.

Darshan Singh

5.5.1979

9.

Malkiat Singh

27.8.1979

A comparison of two tables of appointment of the petitioners as well as the respondents would clearly show that all the petitioners had been appointed on the post of assistants earlier to the respondents. However, the appointments of the petitioners were styled as "Temporary Appointments". In the orders of appointment which are identical, it was mentioned that", the above promotions are absolutely temporary. These officials will have no right of continuous appointment and seniority; and they can be reverted without any reason and without any notice". The promotion orders also provided as under :-

"It is also made clear that those clerks presently do not agree for purely temporary promotion, to the post of Assistant, they will not be considered for promotion to the post of Assistant jn future only for one year."

From the above, it becomes obvious that if a clerk refuses the temporary promotion, he would not be considered for promotion for a period of one year.

The inter se seniority of the members of the service is to be determined under rule 12 of the Rules 1964 which is as under :-

"12. Seniority of member of service :-

The seniority inter se of members of the service shall be determined by the dates of their continuous appointments in the service :

Provided that in the case of members appointed directly the order of merit determined by the Commission or the Board shall not be disturbed and persons appointed as a result of an earlier selection shall be senior to those appointed as a result of a subsequent selection :

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 recruited by direct appointment shall be senior to member recruited otherwise;

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

(c) in the case of members recruited by promotion or 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 recruited by transfer 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 their length of service in these appointments and if the length of such service is the same, older member shall be senior to a younger.

NOTE : I This rule shall not apply to persons appointed on purely provisional basis pending their passing the qualifying test.

NOTE : 2. In the case of members whose period of probation is extended under rule 11 of these rules, the date of appointment for the purpose of this rule shall be deemed to have been deferred to the extent the period of probation is extended."

A tentative seniority list of Assistants was circulated by respondent No. 2 in December, 1976. After consideration of the objections raised, the seniority list was finalised on 8.7.1977. In this seniority list, the petitioners dates of appointments by promotion are shown as indicated above. Thus, the promotion of the petitioners from the dates they were initially promoted was accepted in the seniority list dated 8.7.1977. The respondents are not mentioned in the seniority list as they were appointed till April 1979.

At the time of regular appointments of the petitioners on the post of Assistants, there wee 58 substantive regular posts. The petitioners were appointed against the posts which fell within their quota. However, after the appointment of the respondents No. 3 to 11, respondent No. 2 issued a letter dated 16.7.1981 with regard to the fixation of seniority of the Assistants in the department. In this letter, it was mentioned that the seniority of the direct recruits is to be fixed from the date of the recommendation made by the Subordinate Services Selection Board i.e. 19.7.1978, and not from the date of appointment. Against this decision, the petitioners made their representations. The objections raised by the petitioners have not been decided till date. However, the inter se seniority of the petitioners and the respondents No. 3 to 11 has been depicted in the impugned letter of respondent No. 2 addressed to all the Employment offices in the State of Punjab dated 13.1.1983. It is the case of the petitioners that for all intents and purposes, the aforesaid letter is being treated as the seniority list and further promotions are being made on the basis of the same. In fact respondent No. 3 has been promoted to the post of the Superintendent Grade-IV on the basis of the seniority as depicted in the letter dated 13.1.1983.

I have heard the learned counsel for the parties at length.

From the perusal of the fact narrated above, it would become evident that although the appointment of the petitioners have been styled as "Temporary", they were all along treated as regular Assistants. This was not some fortuitous promotion. Infact the appointment orders, after stating that the officials will have no right to continuous appointments and seniority, also issues a warning that if the promotion is not accepted at that juncture, they will not be considered for promotion for another year. Therefore, it cannot be said that the department was not in need of the services of these individuals on the posts of Assistants. This apart, the rule of seniority reproduced above, makes it abundantly clear that the seniority in the services is to be determined on the basis of the continuous date of appointments. Without doubt, the petitioners have continued on the post of Assistants without any break. By the time, the seniority of the petitioners was sought to be upset, most of them and rendered service ranging from 6 to 10 years. It would be wholly in appropriate to hold that an appointment which continues for years on end was temporary or stop-gap arrangement. In this view of mine, I am fortified by the view taken by the Supreme Court in the latest judgment in the case of Rudra Kumar Sain and Ors. v. Union of India, 2000 (3) SCC 1096. The aforesaid judgment has been subsequently followed and reiterated in the case of S.N. Dhingra v. Union of India 2001(1) SCC 924. In similar circumstances, the Supreme Court observed as follows :-

".....These respondents did possess the requisite qualifications and experience for being appointed to Delhi Higher Judicial Service and they nave been continuing in the said Higher Judicial Service from January, 1986. In this premises, it would be travesty of justice if their continuous appointment in the service is not taken into account for the purpose of their seniority, merely because of the use of the expression stop-gap and fortuitous in the order dated 16th of January, 1986."

In order of deprive the petitioners of the benefit of the continuous service, learned counsel for the state has strenuously argued that the seniority of the respondents No. 3 to 11 had to be fixed on the basis of the executive instructions contained in letter No. 946-4GS-62/8282 dated 15.3.1982. It is submitted that in this letter, it is quite categorically laid down that the seniority of the direct recruits has to be reckoned from the date of the recommendations made by the Subordinate Services Selection Board and not from the date of appointment. Mr. Dhindsa has no objection to the interpretation rendered by the counsel for the State of Fun-jab. He, however, submits, that this criteria is to be adopted only when determining the seniority inter se between the direct recruits recommended in a particular selection. I find much force in the submission made by Mr. Dhindsa. The letter itself clearly states that the subject matter of the same is with regard to the determination of the seniority of the. candidates recruited by the Board. A perusal of the body of the letter also shows that it pertains only to the determination of the inter se seniority of the direct recruits. The letter states that the seniority of the direct recruits should be determined with reference to the date of issue of the Board''s letter and not from the receipt of their recommendation as in the lattercase the letters are liable to be delayed in transit or mis-sent and diarised very late at destination thereby causing under hardship to the can-d idates concerned. This letter has been issued to maintain the seniority which is determined by the Subordinate Services Selection Board. In other words, the person who is placed higher in merit, is deemed to be senior to the persons next on the select list. It makes no difference if the senior joins a little later than the person who is lower in merit. This letter obviously cannot have the effect of supplanting the statutory rules which provide that seniority has to be on the basis of continuous service. That being so, respondents No. 3 to 11 could not have been shown as senior to the petitioners. For the same reason, respondent No. 3 could not have been considered for promotion by ignoring the claim of his seniors i.e. the petitioners. The promotion, if any, of respondent No. 3 is clearly violative of Articles Hand 16 of the Constitution of India.

In view of the above, the petition is allowed. The respondents are directed to fix the seniority of the members of the service from the date of their continuous appointment on the post of Assistants i.e. the dates depicted against the names of the petitioners in the seniority list-Annexure P-3 shall be the dates from which their seniority will be determined. Since even the recommendation of the names of the respondents 3 to 11 is w.e.f. 17.7.1978, they have to rank junior to the petitioners, As the respondents are acting on the seniority list as depicted in the letter-Annexure P-8, the same is hereby quashed. As a necessary corollary, the order of the promotion of respondent No. 3 Annexure P-13 is also hereby quashed.

Petition allowed. No costs.

Petition allowed.