IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP (T) No. 10202 of 2008. Date of Decision : December 22, 2010 Ram Kumar Negi Petitioner. Versus State Election Commission and others. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner : Ms. Sunita Sharma with Mr. Lokender Thakur, Advocates, for the petitioner. For the respondents : Mr. Onkar Jairath, Advocate, for the respondent No.1. Mr. Dilip Sharma, Advocate, for the respondents No.2 and 3. Sanjay Karol, J. (Oral) In the instant case, petitioner has prayed for the following reliefs :- “ (i) That the impugned Annexure : A-4, dated 22.6.2000 and Annexure : A-6, dated 21st July, 2000 may be quashed and set aside; (ii) That the respondent No.1 Commission may be directed to redo the entire seniority list of Senior Assistants by assigning the applicant due seniority after counting his service as Sr. Assistant w.e.f. 1.10.1990 on the principle of length of service; Whether reports of Local Papers may be allowed to see the judgment? 2 (iii) That the applicant may be held entitled to all consequential benefits for further promotion to the post of Superintendent Grade-I after counting his services as Senior Assistant w.e.f. 1.10.1990.” 2. Annexure A-4, is the seniority list of Senior Assistant circulated by the State Election Commission/respondent No.1. Petitioner Ram Kumar Negi is placed at Serial No. 5, which is below private respondents Shri Sanjeev Mahajan (respondent No.2) and Shri R.K. Sharma (respondent No.3). Annexure A-6, is the letter dated 20th July, 2000 whereby rejection of the petitioner’s representation assailing the seniority list stands communicated to him. 3. From the record it cannot be disputed that petitioner was appointed as Senior Accountant with the Agro Industrial Packaging India Limited. The said post was re-designated as Senior Assistant w.e.f. 1st October, 1990. Respondent No.1 invited option from the petitioner for being absorbed as a Senior Assistant by way of deputation on transfer in the office of the State Election Commission. Relevant portion of offer dated 18th December, 1999 (Annexure A-1) reads as under :- “Sub : Appointment by deputation/transfer in the State Election Commission, as Sr. Assistant consent thereof. Memo : It has been decided by the Commission, that a written option for appointment by transfer in the State Election Commission from the desirous Sr. Assistants may be obtained. You are, therefore, advised to submit your written option for appointment by transfer as Sr. Assistant on or before 26.12.99, otherwise it will be 3 presumed that you are not willing to get absorption in the State Election Commission. Further, it may also be brought to your notice that the post against which appointment will be considered is transferable and you can be posted any where in Himachal Pradesh. Sd/- Secretary State Election Commission Himachal Pradesh.” 4. Petitioner exercised his option and respondent No.1 issued office order dated 20th May, 2000 (Annexure A-2) relevant portion of which reads as under :- “OFFICE ORDER Sh. Ram Kumar Negi, Sr. Assistant who is on deputation from H.P. Agro Industrial Packaging India Ltd. Shimla-1 in the State Election Commission, Shimla-2 is hereby absorbed/appointed in the Secretariat of the aforesaid Commission by transfer with immediate effect on the following terms & conditions :- 1. The absorption will be in the post of Sr. Assistant in the pay scale of Rs.5800-200-7000-220-8100-275-9200. 2. The absorption will be purely on temporary basis. 3. He will be allowed the benefit of pay which he would have drawn prior to his absorption in the Commission. 4. He will remain on probation for a period of two years and in case the work and conduct of the official is not found satisfactory during this period, he is liable to be repatriated to his parent Corporation/Board without assigning any reason thereof. 5. He will have to deposit employer’s share of CPF in to the Government account and employees share into GPF account with interest thereon out of the total amount at credits in his respective CPF/EPF. 6. Seniority of the official would be fixed from the date of absorption. 4 7. He will deposit other terminal benefits etc. into Government account. 8. Other terms and conditions of absorption would be based in accordance with the orders/instructions issued in this behalf by the State Government from time to time. 9. The absorption would be on clear understanding that in case the above terms & conditions are acceptable to him, he would submit his joining report to the Head of Department with in a weeks time from the issue of orders failing which the absorption will be treated as cancelled. 10. Half pay leave stands forfeited.” 5. Pursuant to the office order, petitioner joined the office of respondent No.1 w.e.f. 22nd May, 2000, which is evident from Annexure A-3. 6. On 22nd June, 2000, respondent issued the impugned Seniority list. It clarified that an official absorbed/appointed by transfer at later date shall not be senior to an official absorbed/appointed by transfer from an earlier date. 7. It cannot be disputed that in their respective parent departments, petitioner joined as Senior Assistant prior to that of the private respondents. It is also not in dispute that private respondent Shri Sanjeev Mahajan joined the office of respondent No.1 on 16th September, 1994, Shri R.K. Sharma joined on 1st November, 1995 and petitioner joined on 31st August, 1996. It is also not in dispute that private respondents were absorbed prior to the present petitioner. 5 8. While dealing with almost similar situation, the Apex Court in AIR 2000 Supreme Court 594, titled as S. I. Rooplal and another versus Lt. Governor through Chief Secretary, Delhi and others, has held as under :- “ It is clear from the ratio laid down in the above case that any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Arts. 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned Memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the Memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the petitioners/appellants and the offending words in the Memorandum “whichever is later” are held to be violative of Arts. 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/appellants to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is restored. “ 9. Further in Attar Singh Kaushik vs. Secretary/Commissioner, Transport Department and Anr. (2008) 1 SCC 400, the Apex Court has held that “it is axiomatic that those who were senior in the parent department in the equivalent post should continue to be senior in the deputed post unless there exists a statutory rule to the contrary ”. 10. From the record and more particularly, Annexure A- 1, Annexure A-2 and Annexure A-4 (tentative seniority list), it is quite apparent that from the very beginning petitioner was placed in the office of respondent No.1 on deputation basis. Offer for 6 absorption on the said post was also sought. Thus, in my considered view stand taken by the respondents cannot be said to be legally sustainable. Seniority list has to be prepared by counting the length of service rendered by the employee in the same grade. Respondent No.1 cannot adopt a different yardsticks. In the grade of Senior Assistants, in their respective parent departments, petitioner was senior to the private respondents. 11. My attention has also been invited to the decision rendered by this Court in CWP (T) No. 5271 of 2008, titled as Surinder Kumar Versus State of H.P and others, decided on 31.8.2010, copy of which is taken on record. The Court has held as under :- “ The Apex Court in S.I. Rooplal and another versus Lt. Governor through Chief Secretary, Delhi and others, JT 1999 (9) SC 597 has held that the words “whichever is later” is to be substituted with the words “whichever is earlier”. On the basis of the memorandum itself seniority had to be determined from the date on which petitioner was appointed on regular basis in the equivalent grade in his parent department. Annexure A-6 has been issued ignoring the service rendered by the petitioner in his parent department. As mentioned earlier there cannot be any dispute that petitioner stood promoted in his parent cadre much prior to the private respondents. Consequently, the same needs to be quashed. Ordered accordingly.” (Emphasis supplied). 12. Thus seniority list has to be determined from the date on which petitioner was appointed on regular basis in the equivalent grade in his parent department. Thus impugned 7 tentative Seniority list Annexure A-7, is quashed. Respondent No. 1 is directed to prepare a fresh Seniority list by taking into account the service period of the petitioner in the equivalent grade of his parent department. Action be taken within a period of three months from the date of receipt of the certified copy of the order. All consequential benefits including payments of amount due and payable, if any, be also disbursed to the petitioner within the aforesaid period, failing which, thereafter petitioner shall be entitled to interest at the rate of 9 % per annum. 13. With the aforesaid observations, the present petition stands disposed of. (Sanjay Karol), Judge December 22, 2010 CS