CWP No.8636 of 1989(O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.8636 of 1989(O&M) Date of Decision:16.12.2011 Harjinder Singh Gill, Junior Engineer, Mechanical Sub Division, P.W.D. B&R Branch, Hoshiarpur and others. ... Petitioners Versus The State of Punjab through the Secretary to Government Punjab, Public Works Department, B&R Branch, Punjab Civil Secretariat, Chandigarh and others. ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:Mr. Som Dutt Sharma, Advocate for Mr. G.S. Attariwala, Advocate, for the petitioners. Mr. Navdeep Sukhna, DAG, Punjab, for respondents No.1 and 2. None for respondents No.3 and 4. ***** 1.Whether reporters of local papers may be allowed to see the judgment? NO 2.To be referred to the reporters or not? NO 3.Whether the judgment should be reported in the digest? NO K. KANNAN, J. (Oral) 1. The petitioners challenge an order making the services of respondents No.3 and 4 regular from 20.08.1968 and 01.04.1969, respectively, which were to give effect to the decision passed by this Court in CWP No.3358 of 1980. The abovesaid writ petition had been allowed in favour of respondents No.3 and 4 directing the Department to regularize their services after completion of one year from the respective date of entry into service. 2. The writ petition was filed at the instance of the CWP No.8636 of 1989(O&M) [2] persons, who had been appointed to the post as Sectional Officers in response to an advertisement for direct recruitment in terms of Rule 5 of the Punjab Public Works Department (Building and Roads Branch) Sectional Officer's (Engineering) Service (Class-III) Rules, 1964. The channel of appointment as spelt out through Rule 5 was (a) by direct recruitment; (b) by transfer; and (c) by promotion. Respondents No.3 and 4 appear to have been appointed outside the scheme of Rule 5 as stop- gap ad hoc appointment. When the regular posts were advertized, it was not denied that respondents No.3 and 4 had also applied for these posts, conscious as they were, that their services were fragile and liable to termination and wanted to avail of the opportunity of appointment through regular recruitment process. The petitioners had been appointed pursuant to the advertisement, while, respondents No.3 and 4 did not qualify for the regular appointment. Respondents No.3 and 4 apprehending that their services could be terminated appear to have filed CWP No.281 of 1971 and CWP No.1363 of 1971. A concession was made on behalf of the Board that respondents No.3 and 4, who were the writ petitioners in that they would be absorbed in regular posts. Such orders of absorption were issued to be effective from 01.01.1973. The petitioners were, by such a process, treated as seniors to respondents No.3 and 4 by the fact that they had been appointed earlier against regular posts by advertisement and selection that was effective from November 26/27, 1970. 3. Respondents No.3 and 4 appear to have filed the writ petition in CWP No.3358 of 1980 without joining the petitioners and seeking for regularization to be made with effect from the date when they joined as ad hoc appointees and without reference to the fact that they had themselves appeared for consideration for direct recruitment process after regular CWP No.8636 of 1989(O&M) [3] advertisements. The writ petitions were allowed and it appears that SLP No.6710 of 1989 is pending before Hon'ble the Supreme Court. There is no representation on behalf of respondents No.3 and 4 and it is not possible to verify whether it has been disposed of or not. 4. Respondents No.3 and 4 could not have stolen march over the petitioners, having vied for the posts for appointment through direct recruitment after advertisement and losing out to the petitioners in such recruitment process. Even the order obtained favourably in the writ petition in CWP No.3358 of 1980 could not be so applied as to cause prejudice to the petitioners. If the impugned order had been passed by the Electricity Board then, it had a legal compulsion to do so by virtue of the mandate contained in the order of the Court. It will be inequitable to allow for the order to prevail in such a way to cause prejudice to the petitioners. It shall not become possible for this Court to quash an order passed by the respondent- Board on a mandate issued by this Court of co-equal strength. On the other hand, the only way that the petitioners' rights could be protected would be to treat the petitioners as seniors to respondents No.3 and 4 and if during the length of service, respondents No.3 and 4 have come by any benefit by way of promotion on the basis of seniority, the petitioners will be given that benefit treating the petitioners as seniors with all the attendant benefits. The challenge to the impugned order itself, however, cannot survive and it would mean over-reaching the powers of Hon'ble the Supreme Court before which the correctness of the order appears to be under consideration. I have taken note of the inevitable fall out from the decision of this Court in CWP No.3358 of 1980. The petitioners shall make representation to the respondents pointing out to any benefits that had accrued to respondents No.3 and 4 on the CWP No.8636 of 1989(O&M) [4] basis of seniority assigned to them and claim such benefits as being seniors to respondents No.3 and 4. If such a representation is given, the same shall be favourably considered in the light of the observations given in this judgment, within a period of 6 weeks from the date of receipt of representation. 5. The writ petition is allowed on the above terms. DECEMBER 16, 2011 ( K. KANNAN ) Rajan JUDGE