494 1 0 CWP No20684 of2008 1 INTHE HIGH COURT OF PUNOAB 8 HARYANA AT CHANDIGARH DATE OF ORDER 112 Oll 1 1 CWP No0684 of2008 0 ParveenKumar and another V StateofHarvanaand others 0 I 2 CWP No756 of2009 0 I Vinod Kumar Phogat V StateofHaryanaandothers Z CORAM HONBLE MRJUSTICE MAHESH GROVER I IO Z ShriParveen GuptaAdvocatefor thepetitionerlCWP Presentl ClO ShriSSDuhan Advocate for thepetitionerin CWP ShriHarishRatheeSeniorDAG Haryana Z Parkash Advocatefor 3 and4 ShriH1IllvlehtaniAdvocate for theHPSC MAHESH GROVER J 1 This order will disposeof CWR Nos20684of 2008and 9756of 200 Thequestion raised bythe petitioners in the instant writ p6titions is as to whethertheyshould be grantedseniorityover and above the private 21 Batra Amit 2014.03.03 15: 32 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 495 0 l C WP No20684 of2008 An advertisementwas issuedby the FSC inviting for to the postof HaryanaAgriculture Service4I oupeBlin the administrativecadre The petitioners who were lly qualiOedappliedfor the same and were selectedand were given on 1762004 pursuantto whichtheyjoined 3 and4 were also appointed to the same cadre vide letterdated 2862004 Theypleadthattheyare 1 seniorto 3 and4 byvirtueof Rule 11 0 The denythe claim of the petitioners and havestated 0 that theseniority was rightlyflxed The put forwardbythemis that I C5 whileevaluating thecadrestrength bythe a decisionwas taken thatthesepostshaveto be filled up at RosterPoint Nosl652 and82 andthese Z postshave to be Olled up from the physically personsand the Govemment was to sendtherequisition to the HPSC for fillingup the saidpostson 276001 No2 wrote to No in thisregard and which letterwas followedby Nol sending a requisition to the Z HPSC on 23112001 It is pertinent to mentionherethatwhenthisrequisition m was sent recruitmentto the postof generalcategorycandidateswas banned l7 Pursuantto the aforesaiddecision8 postswere advertisedbythe Z HPSC on 272002 and 58002 was as thelast datefor submission Il of the Almost a year thereafterbut beforethe processof selection couldbe finalisedqua thephysically personstheHSC advenised 20postsof HAS4I GrouIBl for thegeneral category This advenisementwas madeon 22B2003 This created a situation where the requisition sent earlier qua the physically persons and the requisitionwhich was received qua the generalcategorycandidatesand processof selectioncame to be done almost The interviews for the postsof general category Batra Amit 2014.03.03 15: 32 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 496 0 l CWR No 20684of2008 candidatescommencedpriorin time ie 2912004andcontinuedupto1222004 whereasinterviewsfor the physically personswere conductedon 1322004 The selectionlist was sent on 1062004videtwo separate lists giving thenames of the selectedcandidatesin both thecategoriesOn 1762004 the got their lettersandjoinedthe postswhile the private were given on 286004 r Thestandof the to justir theirpositionis thatsincethe 0 rocess of requisition for their postshadbeeninitiatedon a priordate and the 0 vacancies existedearlierto thegeneral categorycandidatestheynecessarily hadto I t5 berankedseniorto thepetitioners I Inthis regaultheadvice ofthe HPSC is as follows Z The Commissionhas consideredthe matter in themeeting Sincethe postsof boththe batcheswere bythe r Govt with certaingap of periodand I were advertised at differenttimesand candidatesso selected Z both the advertisements were recommendedto the 00 Govt for throughdifferentrecommendations 7 thoughon the same day so thequestion of preparing Joint Z Merit List does not arise In view of the peculiarityof tl circumstances3 postsreservedfor PH categorywhich were by the govemmentand advertisedby the Commissionearlier are deemedto have becomeavailable earlier Therefore the Commissionis of the view thaf the candidatesvide this office letter NoRGl19614081 dated 1062004 are to be placedover the above the candidates recommended vide this ofOce letter NoRH101200314050 dated1062004 in theseniority list Batra Amit 2014.03.03 15: 32 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 1 497 0 C WP No20684 of2008 Ontheaforesaidbasis theleamedcounselfor thepetitioners andthe havemadetheirassertionsandcounter assertions It hasalsobeencontendedbytheleamedcounselfor thepetitioners thatsincethe selectlist was forwardedon thesame dateie 1062004 both the selections could be construedto be a partof the same processand since the m petitiones were higher111 merit theyshould have been recommendedin 0 with themerit andas per thesettledprincipletheseniority on thebasis 0 I of the merit as determinedby the HPSC 1S to governwhile assigning the 9 to the incumbentandthat theybeinghigherin meritshouldbe another I factorto declarethemsenior Z This aspectof thematter is Oawed for thesimplereasonthatthere 12 weretwo differentprocessesinitiatedat differentpointsof time even thoughthey I culminated in the near proximityof eachotherandresultedin thesending of the C3 two lists on the same date This ipsofactowould not implythat it was thesame Z Selectionthoughit would have madethethingsimplerhadit beena panof the m sameselection m3 the basic controversy which has been raisedby the Z petitioners regarding the datewhich is to be takenas the valid date to confer n seniorityRule 11 is to be advertedto which prescribes the seniorityto be reckonedon thebasisofcontinuouslengthofservice Rule 11 whichgovemstheprinciple of seniority thatit shallbe reckoned bytakinginto considerationtheperiodof continuous lengthof service Rule 11 is extractedherebelow 11 SeniorityrSeniorityinter se of membersof the Service shall be determinedby the lengthof continuous service on any postin theservice Batra Amit 2014.03.03 15: 32 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 498 0 CWR No20684of2008 Providedthat wherethereare differentcadresin the servlce theseniorityshall be determined for each cadre Provided furtherthatin thecase of a member bydirect recnlitmentthe order of merit determinedby the Commssion shallnot bedisturbedin Oxingtheseniority Providedfurther that in the case of two or more 0 members on thesame date theirseniorityshallbe 0 determined as follows I 0 a1 a memberappointed by direct recruitmentshall be I seniorto a member bypromotion or transfer Z b a member by promotion shall be senior to a rnemberappointed bytransfer r c1 lll thecase of a memberappointed bypromotion or by transferseniority shallbe determinedaccording to the Z of such memberin the from m whichtheywere or transferredand 6dl in the case of membersappointedby transferfrom Z differentcadres their seniorityshall be determined to pay beinggivento a member who was drawing a higherrate of pay in his previous andifthe rates ofpaydrawnare alsothe same then by the lengthof their service in the andthelengthof suchserviceis also the 6 same theolder membershallbe senior to theyounger membe Batra Amit 2014.03.03 15: 32 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 499 0 CW P No20684 of2008 The petitioners were on 1762004 while the were on 2862004 andyethavebeenshownseniorto the andthereason advancedas a for thisbythe is thatthe processof recruitmentin their case hadbeeninitiatedon a priordateto thatof the petitionersFurther still the vacanciesexistedpriorto theones which cameinto beingin thecase ofthe petitioners This arguments is alsoseeped 111fallacy Merelybecausethe 0 had been initiatedearlier and the vacanciesexistedearlier would not 0 confer thebenefltof seniority to thedetrimentandthe ofthe rules I C5 TheHonble Supreme Court in Nani Sha and others v Stateof I Arunachal Pradeshandothers 2007115SCC 406 observedas follows Z 14 Therefor one thingis certainthatthe did not haverightto claim a seniority overandabovethe who hadbeenworkingin the C3 postofACF right8om July 1996 Z 15 This Court in a judgmentln State of 00 Uttranchal v DineshKumarSharmahasclearlyheldthM the 7 seniority is to bereckonednot from thedaywhen thevacancy Z arose but 8om thedateon whichthe is made to thepost There this Court was Rules 17 and21 of theUPAgricultureGroupB Service Rules 1995and Rule 8 ofthe UP GovemmentServantsSeniority Rules 1991 This Court the stance takenbythe HighCourt thatthe 6 directionsshould have been givennot from the date of 1 but with effect when the vacancy arose The followingobservationsin para 34 are speaking andwouldclosethe issue 6SCCpp691921 Batra Amit 2014.03.03 15: 32 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 200 0 CWP No20684 of2008 34 Another issue that deservesconsiderationis whetherthe year in which the vacancy accrues can haveany relevancefor the purposeof the seniority of the fact when the personsare recruited Here the contention is that Slnce the vacancyarosein 19954996he should be m C givenpromotion andseniorityfrom thatyear and not 0 from 1999 when his actual letter was 0 issuedbytheappellantThis cannot be allowedas no I 40 effect can be givento the order of order under the Rules nor is such Z contentionreasonableto normalparlanceThis WaS 2 theview takenbythis Courtin JagdishChPatnaik v StateofOrissa I emphasissupplied9 Z 16 Lastlythe High Court has rejectedthe oo claim of theappellants on anothergroundnamelythat the em appellants werenot bome in the cadreof ACF on the date Z from which theyhavebeengiventheseniorityWe are ill Om complete agreement with the HighCoun particularly in vlew of the decision of this Court in Stateof Bihar v Akhouri SachindraNath which decision was reiteratedin Stateof Bihar v Bateshwar Sharma We do not want to burdenthis l with furtherreported decisionsHowever thesame view has been takenin anotherreported decisionof thisCoun in UttranchalForest RangersAssrDirect Recruiov State of t1P where in para 18 thisCourt has takena view thatno Batra Amit 2014.03.03 15: 32 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 201 1 rl CWP No20684 of2008 promotion or seniority can be granted from a datewhenan hasnot evenleen bomein thecadre so as to be affectingthosewho were validlyin themeantime For the aforesaidreasons even thoughit seemsharsh that the m havelost outto thepetitioners in so far as theseniority is concemed 0 becausethe HS did not concludetheprocessearlier butstill therule 0 I as it existstodaycannot bedeviatedfrom t5 At this stagethelearnedcounselfor theprivate triedto makea case thattheybeingfrom thereservedcategoryof persons Z were at theRoster Point and thereforethe rule of rota quota would applyto their senioritybut thisis alsowithoutany basis as thereis no material evidenton recordfromwhereit can be inferredthatthereexistedsuchruleto be I followed The havenot placed on recordany suchmaterialexceptthe Z solitary decisionof the whichreferredto some pointin theroster to 0 beassigned to thephysically persons In theabsenceof anymaterial 7 tothiseffect thiscontentionhasto benegated Z For theaforesaidreasons boththewrit petitions are accepted andthe impugnedsenioritylist of Annexure Pe4 1S quashedand the are directedto reletermine theseniority ofthe petitioners keeping in view theaforesaidobservations s rc MAHESH GROVERI Decemberll2011 JUDGE GD 1 WHETHER TO BE REFERRED TO REPORTER2 YESINO l 9 7 e r Batra Amit 2014.03.03 15: 32 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document