Civil Writ Petition No.10567 of 1990 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.10567 of 1990 Date of decision: February 22, 2008. Labh Singh & Ors. ...Petitioner(s) v. State of Punjab & Ors. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest. Present: Shri Rajiv Atma Ram, Senior Advocate with Sahri BNS Sharma, Advocate for the petitioners. Shri N.S. Pawar, Additional Advocate General, Punjab for the respondents. ORDER Surya Kant, J . (Oral): In this Civil Writ Petition, the petitioners seek a writ in the nature of certiorari for quashing the seniority list (Annexure P-2) and to direct the official respondents to assign them seniority on the basis of their continuous length of service. Alternatively, the petitioners seek that they should be assigned seniority as Forest Guards with effect from the date(s) they are deemed to have been confirmed on completion of maximum period of probation provided under the Punjab Forest Subordinate Services (Executive Section) Rules, 1944 (in short the Rules). Civil Writ Petition No.10567 of 1990 -: 2 :- [2]. The facts may be noticed briefly. [3]. The petitioners were appointed as Forest Guards in the Forest Department, Punjab by way of direct recruitment on different dates as given in para 2 of the writ petition. Their names were sponsored by the Employment Exchange. It is their grievance that despite having completed the maximum period of probation as prescribed under the Rules, they have been assigned dates of confirmation arbitrarily thereby placing them under their juniors in the impugned seniority list (Annexure P-2), which, in turn has been fixed on the basis of alleged dates of substantive appointment against permanent vacancies. The petitioners have also impleaded respondents No.3 to 11 who, according to them, were juniors, however, have been placed above the petitioners in the impugned seniority list (Annexure P-2). [4]. In response to the notice of motion, the official as well as the private respondents have filed their respective replies. The main plea taken by the official respondents to oppose the petitioners' claim is that soon after their appointment, adverse remarks were recorded in the annual confidential reports of the petitioners as per the details given in para 2 of the written statement. On this premise, it is suggested that the 'confirmation' of the petitioners was delayed and as a result thereto, they have been placed beneath the private respondent in the final seniority list. [5]. It may be noticed at this stage that during the pendency of this writ petition, all the petitioners are stated to have retired from service. Some of them have unfortunately expired also and their legal representatives have been brought on record. [6]. Rules 12 and 13 of the Rules have a direct bearing on the Civil Writ Petition No.10567 of 1990 -: 3 :- controversy in this case and the same read as follows:- “ Probation of members Rule 12.(1) Members of the Service who are of the Service: appointed against permanent vacancies shall on appointment to any class of posts specified in Appendix ‘A’ remain on probation for a period of one year. Explanation:- Approved officiating service shall be reckoned as a period spent on probation, but no member, who is officiating in any appointment shall on the completion of his period of probation be eligible for confirmation until he is appointed against a permanent vacancy. (2) If the work for conduct of any member during his period of probation is, in the opinion of the appointing authority not satisfactory, the appointing authority may dispense with his service if he has been appointed direct or may revert him to his former post if he has been recruited otherwise than by direct appointment. (3) On the completion of the period of probation of any member, the appointing authority prescribed in Rule 4 may confirm such member in his appointment, or if his work or conduct has, in the opinion of the appointing authority, not been satisfactory, the appointing authority may dispense with his services if he has been appointed direct, or revert him to his former post if he has been appointed otherwise than by direct recruitment or may extend the period of probation and thereafter, pass such orders on the expiry of the period of probation as it could have passed at the expiry of the first period of probation; Provided that the total period of probation Civil Writ Petition No.10567 of 1990 -: 4 :- including extensions, if any, shall not exceed 3 years. Provided further that no Forest subordinate promoted to the post of Forest Ranger shall be confirmed in his appointment unless he has passed such examination in the reading of maps, forest law and procedure and accounts as the Chief Conservator may from time to time prescribe and if he fails so to pass such examination he shall be reverted to his former post. Provided further that no Deputy Ranger or Forester recruited under Rule 8(2)(b) and 9(2) respectively, shall be confirmed unless he has obtained the certificate of training from the school and if he fails to obtain such certificate he shall be removed from service. Seniority of the members. Rule 13:- The seniority of members of the of the service service shall in each class of appointments shown in Appendix ‘A’ be determined by the dates of their substantive appointment to a permanent vacancy in such class. Provided that if two or more members are appointed on the same date- (1) Members promoted from the service shall take rank in the order of seniority above the members appointed direct; (2) In the case of members, who are promoted from the service, seniority shall be determined according to pay, preference being given to a member drawing a higher rate of pay; and if the rates of pay drawn are the same, seniority shall be determined according to length of service, preference being given to a member having the longer service, and if the length of service is also Civil Writ Petition No.10567 of 1990 -: 5 :- the same, seniority shall be determined according to age, the older member being senior to the younger member; (3) In the case of members who are appointed direct the older member shall be senior to the younger; Provided further that if any member is reverted to his former post, and is subsequently re-appointed to the post from which he reverted, the date of his appointment for the purpose of this rule shall be such date as the appointing authority may determine.” [7]. It is explicit from the language of Rule 12.1 of the Rules that the members of the service who are appointed against permanent vacancies shall, on appointment to any class of posts specified in Appendix 'A', remain on probation for a period of one year. The first proviso to sub-rule (3) of Rule 12 further contemplates that the probation period of a member of the service, including extensions, if any, shall not exceed three years. Rule 13 on the other hand provides that seniority of the members of the service shall be determined by the dates of their substantive appointment to a permanent vacancy. [8]. On a combined reading of both the Rules, it appears that a 'member of the service' on his appointment against a permanent vacancy shall be kept on probation for a period of one year which, however, could be extended for a maximum period of three years. During the period of probation, the competent authority could terminate the services of a member of the service if his work and conduct was not found satisfactory. In the present case, admittedly, the petitioners were appointed by direct recruitment on the dates as given in para 2 of the writ petition. Initially, Civil Writ Petition No.10567 of 1990 -: 6 :- they were also kept on probation for a period of one year. In terms of the first proviso to sub-rule (3) of Rule 12, the said probation could be extended for a maximum period of three years. In other words, the petitioners, on completion of three years of service, i.e., on completion of the maximum period of probation, are deemed to have acquired the status of a substantive appointee, more so when it is not the case of the official respondents that there were no permanent vacancies in the direct recruitment quota. As a necessary corollary thereto, it follows that the petitioners were entitled to be assigned seniority in the cadre of Forest Guards with effect from the date(s) of completion of three years of service as Forest Guards, especially when no adverse action was ever taken against them in terms of the powers conferred upon the appointing authority under the Rules, if their work and conduct was found unsatisfactory. [9]. In fact, in para 3 of their written statement, the official respondents have averred that, “seniority of the members (Forest Guards) is to be governed under rule 13 of the Punjab Forest Subordinate Services (Executive Section ) Rule 1944. The petitioners were appointed against temporary posts and brought on permanent post on availability of post and on the basis of their services record –cum- seniority. The Seniority in the cadre of Forest Guard is reckoned from the date of substantive appointment in the cadre.” (emphasis applied) [10]. At this stage, it may also be mentioned that on 9.8.2006 when this matter was taken up for final hearing, the following order was passed by this Court:- “Mr.Rajiv Atma Ram, learned counsel appearing for the petitioner has referred to the tentative seniority list (Annexure P2). He has raised two contentions. Firstly, he submits that according to his instructions, this provisional Civil Writ Petition No.10567 of 1990 -: 7 :- list was never finalized. Secondly, he submits that the seniority position as assigned in Annexure P2, cannot be justified under any situation. Even on the date of appointment in the department, seniority is not correctly assigned. Taking the date of appointment on the existing post also shows that the seniority is not correctly assigned. Even by the date of confirmation, seniority is not correctly assigned. Mr.G.C.Gupta, learned State counsel seeks short adjournment to appraise this court as to whether or not the seniority list was finalized. If so, on what basis.” [11]. No additional affidavit, however, has been filed to explain as to what was the criterion adopted by the official respondents while fixing seniority of the petitioners vis-a-vis other Forest Guards. [12]. Consequently and for the reasons afore-stated, the impugned seniority list (Annexure P-2), to the extent it assigns seniority to the petitioners with effect from the date(s) of confirmation is set aside and the respondents are directed to reconsider and assign seniority to the petitioners with effect from their deemed date of substantive appointment(s) and grant them the necessary consequential benefits, if any. The needful shall be done within a period of four months from the date of receipt of a certified copy of this order. February 22, 2008. [ Surya Kant ] kadyan Judge