Suresh Bala Malik vs State of Haryana and Others

Ajay Tewari, J.—The petitioner has claimed seniority over the respondent No. 4. The admitted facts are that both the petitioner and the respondent No. 4 had been earlier appointed against leave vacancies but their appointment was not approved by the respondent No. 2. Ultimately they were regularly selected by order (Annexure P-7) w.e.f. 01.08.1990. In this selection the petitioner was placed at serial no. 1 while the respondent No. 4 was placed at serial no. 2 on the basis of merit. Originally, the manager of the College-respondent No. 3 placed the petitioner senior to the respondent No. 4. However, on a representation made by the respondent No. 4 the Chairman of the respondent No. 3-College reversed the order and declared the respondent No. 4 senior to the petitioner on the ground that when these persons were appointed originally against leave vacancies, the respondent No. 4 had joined one day prior to the petitioner and therefore she declared to be senior to the petitioner.

Learned senior counsel for the petitioner has argued that the issue of seniority had gone up to the respondent No. 2-Director of Higher Education who, by letter dated 08.02.1994 (Annexure P-10) had advised the College-respondent No. 3 that the seniority of the petitioner and the respondent No. 4 had to be decided in accordance with Rule 2(iii) of the Calender of Year 1989, Vol. I of the Kurukshetra College, Kurukshetra and the Haryana Affiliated Colleges (Security of Service) Rules, 1993. The said rule is as follows:-

2(iii). In case of appointments made by direct recruitment, a person placed at No. 1 in order of merit shall be senior to a person placed at No. 2 and so on.

It has further been mentioned that even the University by letter dated 25.11.1994 (Annexure P-23) had directed the respondent No. 3- College to consider the petitioner to be senior to the respondent No. 4 but despite that the impugned order dated 01.10.1994 (Annexure P-20) has not been withdrawn and even till date the respondent NO. 4 is being considered as senior to the petitioner.

Learned counsel for the respondent No. 4 has argued that since the respondent No. 4 had originally joined prior to the petitioner and since she was confirmed also prior to the petitioner she has rightly been declared as senior by order dated 01.10.1994 (Annexure P-20).

In my opinion, the argument of the learned counsel for the respondent No. 4 is fallacious. Rule 2(iii) (supra) makes it clear that direct recruitment seniority has to be based on position of merit of the candidate. It may be mentioned that the said rule is not unique and is in fact based on a principle commonly followed in the Government and other statutory and public bodies.

Resultantly, the petition is allowed. The petitioner is held to be senior to the respondent No. 4 and the impugned order dated 01.10.1994 (Annexure P-20) is set aside and it is declared that the petitioner would be treated as senior to the respondent No. 4. Since the main case has been decided, the pending civil miscellaneous application, if any, also stands disposed of.