PPeal NO 4454 of 1985
From the Judgment and Order dated 1521984 of the Punjab and Haryana High Court in LPA No 224 of 1984
VM Tarkunde Miss Meenakshi Arora RN Karanjawala and Mrs Manik Karan jawala for the Appellant
KK Jain AD Sanger Ajay K Jain Pramod Dayal BR Appeal PG Gokhale Janendra Lal and Miss Yashmin Tarapore for the Respondents
PG NO 705 The Judgment of the Court was delivered by RAY J
The only question that arises for decision in this appeal is whether an employee promoted to a post reserved for Scheduled Castes and Scheduled Tribes is entitled to have his seniority determined from the date of his appointment to the post or his seniority inter se will be reckoned as it was in the class or grade from which he was promoted to a post in a higher rank
The appellant who is a Scheduled Caste joined service as a Clerk in the Electricity Branch of the Punjab Public Works Department on February 20 1954
The terms and conditions of his service were governed by the Punjab PWD Electricity Branch Provincial Service Class 111 Subordinate posts Rules 1952
In February in and Punjab State Electricity Board was constituted under Section 3 of the and the employees of the Electricity Branch were transferred to the Board
The conditions of service of the employees were governed by their existing terms and conditions as well as existing service Rules
In 1967 the Haryana State Electricity Board was constituted and the appellant was allocated to the Haryana State Electricity Board with existing terms and conditions of service
The Board being a statutory corporation was requested by letter dated December 13 1972 by the Government to provide for reservation of 22 of vacancies initial recruitment and promotion posts for being filled up by members of the Scheduled Castes and Scheduled Tribes as well as by members of backward classes
The Haryana State Electricity Board adopted the above circular by its Resolution dated March 1976 providing for reservation of posts both for initial requirement as well as for promotion
The appellant was promoted on September 1973 as Deputy Superintendent the respondent No2 Rajinder Singh Marya was also promoted by the same order as Deputy Superintendent
In the said order of appointment the following note was appended The earlier promotion of the above officials as Deputy Superintendent will not confer upon them any right to claim seniority over those who may otherwise be senior to them due to any reason whatsoever
On April 27 1972 a circular was issued by the Chief Secretary Government of Haryana to all its departments regarding reservation for members of Scheduled Castes and Scheduled Tribes in service and fixation of seniority Paragraphs 2 and 4 of the said circular which are relevant are quoted hereinbelow PG NO 706 2
It has to be pointed out that this was irregular and inter se seniority of all the candidates taken together ie whether appointed against reserved vacancies or against open ones must be fixed according to the combined merit list and not otherwise
Vacancies assigned to Scheduled CastesBackward Classes under block system are so assigned for the purposes of reservation only and are not intended for fixing inter se seniority of the candidates contrary to their order in the combined merit list prepared by the Public Service CommissionSubordinate Service Selection Board
The above instructions regarding determination of inter se seniority will however apply only in those cases where the departmental service rules do not provide for seniority being determined from the date of joining or from the date of confirmation or by a method otherwise than the merit determined by the Public Service CommissionSSS Board
In other words in all cases where the service rules have not yet been framed or where the service rules provide for seniority being determined according to the merit laid down by the CommissionSSS Board the seniority of the officials shall be determined in the manner stated above
In other cases where the service rules specifically provide for seniority being determined from the date of joining or from the date of confirmation by the recruiting authority the seniority shall be determined by such different methods
 As the seniority of the appellant was not determined from the date of his appointment to the post of Deputy Superintendent he made a representation to the Board requesting for determination of his seniority from the date of his appointment to the promoted post and also for considering his case for promotion to the post of Superintendent
This representation of the appellant was rejected on the ground that The officials belonging to the scheduled castestribes and backward classes who are promoted against the posts reserved for them under the block system and for reasons other than inefficiency of their seniors will not be assigned seniority from the date of their joining in the PG NO 707 promoted rank
They shall be assigned seniority in the promoted rank with reference to their inter se seniority of their previous posts
Thereafter on January 20 1977 the appellant was finally informed that his seniority will not be computed from the date of his promotion to the post of Deputy Superintendent
On January 12 1977 the respondent Nos 2 and 3 ie Rajinder Singh Marya and Jagdish Lal Lamba who were junior to the appellant as Deputy Superintendents were promoted as Superintendents superseding the claim of the appellant
Aggrieved by this the appellant instituted an application under Article 226 of the Constitution of India in the High Court of Punjab and Haryana praying for a writ of mandamus directing the respondent No 1 to consider his case for promotion to the post of Superintendent on the basis of his being seniormost Deputy Superintendent according to the continuous length of service on that post and to promote him to the post of Superintendent with effect from the date his juniors have been promoted and for other consequential reliefs
An affidavit was filed on behalf of Respondent No 1 verified by Shri R Prakash Secretary Haryana State Electricity Board wherein in para 3 it has been submitted that   the seniority of the petitioner has been determined in the post of Deputy Superintendent in accordance with the exception below Rule 9 of the 1952 Rules
 In Para 5 it has been admitted that the appellant was promoted as Deputy Superintendent on 25th September 1973 and since then he is continuing on the said post
It has further been submitted that the promotion of the appellant was in an officiating capacity and he still continues to officiate as Deputy Superintendent
The appellant was promoted to the post of Deputy Superintendent against a post which was reserved for the Scheduled Castes though he was far junior in the cadre of Assistants
In para 7 it has been stated that 
The petitioner cannot claim seniority above those two officials in the rank of Deputy Superintendent
In view of the exception to Rule 9 if a member of service is promoted temporarily to a post earlier than his senior for PG NO 708 reasons other than the inefficiency of the senior person they will take rank inter se according to their relative seniority in the class from which they were promoted and junior persons thus promoted shall not be confirmed from a date earlier than the date of confirmation of his senior except on the score of inefficiency of the latter
In the present case the petitioner was promoted temporarily to the post of Deputy Superintendent earlier to the other two officials on the ground that the petitioner belonged to the scheduled castes
The other two officials were not superseded on the ground of inefficiency   On February 4 1984 the learned single Judge of the High Court dismissed the writ petition holding inter alia that the instructions governing the matter of promotion in favour of the Scheduled Caste candidates had nothing to do with the determination of the seniority of these candidates
Moreover in the letter promotion the petitioner it was specifically mentioned that the earlier promotion would not confer on him any right or claim to seniority over and above those who were otherwise senior to him in the cadre from which he had been promoted
It was further held that m the light of exception to Rule 9 the petitioner being promoted temporarily his seniority cannot be counted from the date of his appointment in the higher post and the respondent Nos 2 and 3 would be treated senior to him in the rank of Deputy Superintendent as they were senior to the petitioner in the grade of Assistants
It was therefore found that respondent Nos 2 and 3 were entitled to be promoted as Superintendents earlier to the petitioner 
Against this judgment and order Letters Patent Appeal being LPA No 224 of 1984 was filed
The said appeal was however
dismissed summarily as being without any merit
The appellant thereafter filed the instant appeal assailing the said judgment
Before proceeding to consider the question whether the appellant s seniority was properly determined under Rule 9 of the Punjab PWD Electricity Branch Provincial Service Class 111 Sub ordinate posts Rules 1952 in short to be referred herein as the said Rules it is necessary to set out herein the relevant provision of Rule 9 9 Seniority of the members of the Service The seniority of the members of the Service for the time being serving in each class of appointment shown in Appendix A  shall be determined as follows PG NO 709 i Prior to confirmation ie in the case of persons serving on probation or in an officiating capacity in the order of the dates of their appointment or if such date be the same in respect of two or more persons in the order of their ages the older being placed above the younger
ii After confirmation by their respective dates of confirmation provided that where two or more members are confirmed wef
the same date they will retain the order to confirmation
Exception If a member of the service is promoted temporarily to a post earlier than his senior for reasons other than the inefficiency of the senior person they will take rank inter se according to their relative seniority in the class from which they were promoted and the junior person thus promoted shall not be confirmed from a date earlier than the date of confirmation of his senior except on the score of inefficiency of the latter
Provided further that if a member is appointed to a higher class later than a person who was junior to him in the lower class for reasons which the appointing authority may certify in writing to be connected with the Public interest the person so appointed shall be given the same seniority in the higher class vis a vis such junior as he held in the lower class
Thus on a plain reading of the Rule it appears that the seniority of the members of the Service serving in an officiating capacity shall be prior to confirmation in the order of the dates of their appointment  and after confirmation by their respective dates of confirmation
There is an exception to this Rule to the effect that if a member of the Service is promoted temporarily to a post earlier than his senior for reasons other than inefficiency of the senior person they will take rank inter se according to their relative seniority in the class from which they were promoted and the junior person so promoted shall not be confirmed from a date earlier than the date of confirmation of the senior
The provision contained in the exception to Rule 9 is applicable only in the case of temporary promotion of a member of the service to a post earlier than his senior for the purposes other than inefficiency of the senior persons
PG NO 710 In the instant case admittedly the appellant has been promoted to the post of Deputy Superintendent which was reserved under the block system for members of the Scheduled Castes
The appointment to the said reserved post on promotion is a regular one and this has been admitted in paragraph 5 of the counter affidavit referred to hereinbefore
The appointment letter does not articulate that the promotion of the appellant to the post of Deputy Superintendent was purely temporary
The promotion has been made on a regular basis to the post of Deputy Superintendent reserved on the basis of quota of vacancies for being filled up by promotion of members belonging to the Scheduled Castes
The appointment of the appellant to the said promotional post of Deputy Superintendent in our considered opinion cannot be designated to be purely a temporary promotion
This being the position the exception to Rule 9ii of the said rules cannot be applied to determine the seniority of the appellant in the post of Deputy Superintendent and his seniority cannot be based in accordance with the inter se seniority of the respondent Nos 2 and 3 in the cadre of Assistants from which the appellant and respondent Nos 2 and 3 were promoted to the post of Deputy Superintendent
Rule 9i of the said Rules is applicable in this case and the seniority of the appellant is to be reckoned from the date of his appointment In the post of Deputy Superintendent
The appellant is thus senior to respondent Nos 2 and 3 in the rank of Deputy Superintendent as he was promoted to the said post earlier than the respondents Nos 2 and 3 and as such his claim for promotion to the post of Superintendent on the dates when the respondent Nos 2 and 3 were promoted to such post is legal and valid
It may be mentioned that during the pendency of the writ petition the appellant had been promoted to the post of Superintendent on 2951981 and as such he pleaded in para 6 of the special leave petition that his seniority in the cadre of Deputy Superintendent should not be affected on the basis of the judgments rendered by the High Court
On a consideration of the facts and circumstances stated hereinbefore the finding of the High Court that the appellant was promoted temporarily and so exception to Rule 9ii applies for determination of seniority of the appellant as Deputy Superintendent in our considered opinion cannot be sustained as we have already held that the promotion of the appellant in a reserved vacancy is a regular one and it does not smack of purely temporary character
The seniority of the appellant is to be reckoned from the date of his appointment to the said post according to the provisions of Rule 9i of the said Rules
The judgments of the High Court in Letters Patent Appeal No 224 of 1984 as well as in the writ petition No 773 of 1977 are PG NO 711 set aside and the appeal is allowed
The respondent No 1 is directed to treat the appellant promoted to the post of Superintendent from the date the respondent Nos 2 and 3 were promoted to the said post and to pay him the emoluments attached to the said post of Superintendent minus the emoluments paid as Deputy Superintendent from that date till the date of his actual appointment as Superintendent ie May 29 1981
The appeal is thus allowed with costs
NVK Appeal allowed


Summary:
The appellants were promoted in January 1981 as Awal Karkuns in the Department of Food and Civil Supplies Sholapur
At the same time the private respondents holding those posts were directed to be repatriated to their parent department that is the Revenue Department
The private respondents challanged these orders by way of a civil suit on the ground that these orders were unjust illegal and violative of Articles 14 and 16 of the Constitution
The Civil Judge decreed the suit
The Additional Sessions Judge and the High Court upheld the decree
The High Court came to the finding that the Food  Civil Supplies Department Sholapur had no separate existence on the date the impugned order was passed and that it was part and parcel of the Revenue Department
It is contended by the private respondents that on the abolition of the statutory rationing the Food  Civil supplies Department was abolished and the appellants were absorbed in the Revenue Department
This contention is disputed by the appellants
Allowing the appeals it was HELD 1 It was not disputed that after the introduction of statutory rationing the Food  Civil Supplies Department was an independent Government Department at Sholapur
71G 2 It was wrong to assume that the Food  Civil Supplies Department dealing with food and supply thereof
was abolished consequent on the abolition of the statutory rationing
718D 3 The fact of introduction or abolition of statutory rationing had nothing to do with the question of food and supply thereof which must be dealt with by some department of the Government and after the creation of the Food  Civil PG NO 712 PG NO 713 Supplies Department it was dealt with by that Department
718C 4 As the Department existed it could be reasonably presumed that it had its own staff and the appellant s contention that they were retained in the Food  Civil Supplies Department seemed to be correct
718E 5 There was no material in proof of the alleged absorption of the appellants in the Revenue Department
Moreover as they did not fulfil the conditions for absorption in the Revenue Department they could not be transferred to or absorbed in that Department
717C 718H 6 It is true that there was no order showing that the respondents were transferred on deputation from the Revenue Department to the Food  Civil Supply Department
It could however be reasonably presumed that the respondents were sent on deputation to the Food  Civil Supplies Department otherwise there was no question of their repatriation to their parent department
718H 719A 7 It was apparent from the fact that separate rules were framed for recruitment of officers in the Food and Civil Supplies Department and a final gradation list was also prepared and published that the Food and Civil Supplies Department was not part and parcel of the Revenue Department but it had a separate and independent existence
719G 8 As the appellants belonged to a different department their promotions would be governed by the rules of that department
Similarly the promotion of the private respondents would be considered in accordance with the rules of the Revenue Department
721A Shri Atmaram Chaturvedi Garbude  Ors
vs State of Maharashtra  Ors Special Civil Application Nos
707 of 1974 and 4834 of 1976 Bombay High Court Nagpur Bench referred to