CWP No. 3916 of 2006 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 3916 of 2006 Date of Decision: 10.4.2008 (1) CWP No. 3916 of 2006. Gurpreet Singh Gill ....Petitioner Versus State of Punjab and others .....Respondents Present: Shri Rajiv Atma Ram, Senior Advocate, with Shri Akshay Bhan, Advocate, for the petitioner. Shri Rupinder Khosla, Additional AG, Punjab. Shri H.S. Sethi, Advocate, for respondent Nos. 4 and 5. (2) CWP No. 3921 of 2006. Baljot Singh Rathore and another ....Petitioners Versus State of Punjab and others .....Respondents Present: Shri Gurminder Singh, Advocate, for the petitioners. Shri Rupinder Khosla, Addl. AG, Punjab. Shri H.S. Sethi, Advocate, for respondent Nos. 3 and 4. Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE MOHINDER PAL 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? HEMANT GUPTA, J. This order shall dispose of Civil Writ Petition No. 3916 of 2006 filed by Gurpreet Singh Gill son of Shri Rajinder Singh and Civil Writ CWP No. 3916 of 2006 (2) Petition No. 3921 of 2006 filed by Shri Baljot Singh Rathore son of Shri Inder Singh and Shri Surjit Singh son of Shri Suba Singh. The challenge in both the writ petitions is to the assignment of deemed date of appointment to the private respondents i.e. Gursharan Singh Sandhu and Surinder Kumar Kalia as 21.4.1990 and the deemed date of confirmation i.e. 6.5.1992. 22 posts of Deputy Superintendent of Police were advertised in the year 1989 to be filled up by direct recruitment in terms of the Punjab Police Service Rules, 1959 (hereinafter referred to as `the Rules'). In pursuance of such advertisement, 26 names were recommended by the Punjab Public Service Commission for appointment as DSP. The name of Baljot Singh Rathore, petitioner No. 1 in CWP No. 3921 of 2006 is at serial No. 26 of the said list. He is a candidate from the freedom fighters category, whereas, the names of respondent Nos. 4 and 5 are at serial Nos. 15 and 18 respectively as general category candidates. 12 candidates are required to be appointed out of the 22 advertised posts amongst general category candidates in pursuance of the advertisement of the year 1989. Name of petitioner No.2- Shri Surjit Singh appears at serial No. 5 and his name was recommended as a reserved category candidate (Majbi Sikh), whereas the petitioner in CWP No. 3916 of 2006 i.e. Gurpreet Singh Gill at Sr. No. 7, was recommended for appointment as a sports category candidate by the Punjab Public Service Commission on 26.11.1990. 7 candidates were recommended pursuant to a subsequent advertisement issued in the year 1990. Three candidates were of general category whereas the remaining candidates were of reserved categories. CWP No. 3916 of 2006 (3) Since 12 general category candidates were required to be appointed in pursuance of the advertisement in the year 1989, the letter of appointment was issued to such candidates on 6.4.1990. However, two candidates, namely, Barjinder Kumar Uppal and Ravi Kumar did not join as DSP. Respondent Nos. 4 and 5 were next in merit as a general category candidate available for appointment for DSP, but they were not given appointment. Though Shri Ranbir Singh Khatra, whose name appears at Serial No. 21 was given appointment on account of non joining of another candidate of ex-serviceman category. The said respondents were given appointment as Deputy Jail Superintendents in August, 1990 on the basis of their seniority in the merit list so prepared by the Public Service Commission. Respondent Nos. 4 and 5 filed a writ petition before this Court bearing CWP No. 11107 of 1990 on 17.8.1990, pointing out that their names have been recommended at serial Nos. 1 and 2 in the order of merit for appointment to the post of DSP, (Jails), Grade II/ District Probational Officer in August, 1990. The said respondents claimed in the writ petition that due to non joining of the two general category candidates, the said candidates are required to be reallocated and appointed to the post of DSP. In the said writ petition, an order was passed by this Court on 18.8.1990 that any appointment to be made by the respondents against two posts in pursuance of fresh advertisement shall be subject to final decision of the writ petition. The said writ petition was allowed by this Court on 9.7.2001, wherein it was held to the following effect:- “However, when a candidate higher in order of merit does not join, the vacancy should be offered to the candidate next in order of merit. It is only when the State CWP No. 3916 of 2006 (4) prescribes a minimum standard and the candidate fails to come up that standard the action of the authority in not offering the post to the next candidate can be held to be legally valid. In the present case, it has not been shown that the State had prescribed a standard, which the two petitioners have failed to attain. In such a situation, the action of the respondents in not making the offer of appointment to the posts of Deputy Superintendent of Police to the petitioners appears to be arbitrary and unfair. I accordingly allow this writ petition and direct the respondents to consider the claim of the petitioners for appointment to the posts of Deputy Superintendent of Police. Needful shall be done within a period of two months from the date of the receipt of the copy of this judgment. The petitioners are also held entitled to their costs which are assessed at Rs.2000/-.” Against the aforesaid order, LPA No. 1194 of 1991 was dismissed by the Division Bench of this Court on 8.10.1991. In the Special Leave Petition No. 1390 of 1992 against the same order, an interim order was passed on 10.2.1992 “that in the meantime, the dictate of the order of the High Court be obeyed and result be communicated to the Hon'ble Supreme Court and that in case the respondents on consideration are found suitable, they be given employment subject to the result of SLP.” Subsequently, the SLP was dismissed on 20.4.1992. However, on 27.3.1992, respondent Nos. 4 and 5 were offered appointment but the said respondents joined duties on 1.9.1992 after respondent No. 4 was relieved as Assistant Professor in the Punjab Agricultural University, whereas respondent No. 5 was relieved as Veterinary Doctor. Later, respondent Nos. 4 and 5 submitted a representation for CWP No. 3916 of 2006 (5) giving deemed date of appointment i.e. the date which has been given to other candidates appointed in pursuance of advertisement in the year 1989. The said representation was rejected on 13.6.1995 for the reason that this Court has not passed any order regarding their appointment with retrospective effect. The said respondents challenged the aforesaid order in CWP No. 11862 of 1996. The petitioners in the aforesaid case claimed deemed date of appointment i.e. 21.4.1990 and also claimed a writ in the nature of prohibition directing the respondents not to determine the seniority of the petitioners from the date of their actual appointment as DSP. The said writ petition was allowed by the Division Bench of this Court on 21.1.1997, with the following operative order:- “After hearing learned counsel for the partied and going through the records of the case, we find absolutely no justifiable reason forthcoming that may debar the petitioners from getting their deemed date of appointment as DSP. It is in fact on account of fault of the respondents, so evidenced in the judgment rendered by this Court, which has assumed finality, that the petitioners were not appointed as DSP in the very first instance. Having succeeded in their writ petition asking for appointment to the post of DSP in pursuance of the advertisement in which they applied, there is no occasion whatsoever for the respondents not to have given them deemed date of appointment. As has been mentioned above, Parminder Singh, equally situate, has been given deemed date of appointment. Even though, therefore, there be no orders passed in the case of the petitioners with regard to deemed date of appointment, in law, if they deserve the same, it has to be granted to them. For the reasons recorded above, this writ petition is allowed. A direction is issued to the respondents to give CWP No. 3916 of 2006 (6) deemed date of appointment to the petitioners on the post of DSP as April 21, 1990. Parties are however, left to bear their own costs.” Parminder Singh, whose name appears in the aforesaid order was a candidate, who was offered appointment, but was not permitted to join the duties. He filed CWP No. 14728 of 1990. The official respondents considered his claim and said Parminder Singh was appointed in the year 1991 with deemed date of appointment on 21.4.1990. As a consequence to the order passed by the Division Bench of this Court, an order (Annexure P.6) has been passed by the State Government on 12.8.1997 giving 21.4.1990 as deemed date of appointment to respondent Nos. 4 and 5. Annexure P.7 in CWP No. 3921 of 2006 is the order dated 19.1.1998 giving 6.5.1992 as the date of confirmation to respondent Nos. 4 and 5. It is the said orders, which are subject matter of challenge in the present writ petitions. Learned counsel for the petitioner has vehemently argued that granting of deemed date of appointment and deemed date of confirmation to respondent Nos. 4 and 5 is absolutely illegal, unwarranted and in contravention of the Rules as well. It is argued that respondent Nos. 4 and 5 were working against other posts till 31.8.1992 and thus, cannot be granted deemed date of appointment or deemed date of confirmation as DSP. It is further argued that the said respondents having failed to join as Deputy Superintendent of Police, Jails (Grade-II)/District Probation Officer in pursuance of the letter of appointment issued in 1990, the said respondents cannot claim for upgraded appointment as DSP. It is further argued that the prayer of the petitioner for not determining the seniority from the date of their actual date of appointment as DSP in CWP No. 11862 of 1996 has not CWP No. 3916 of 2006 (7) been granted. The said respondents have not been granted any consequential benefits in the judgments dated 9.7.1991 and 21.1.1997. Therefore, the decision of the State Government to determine the seniority from their deemed date of appointment and by giving deemed date of confirmation is wholly illegal, arbitrary. It is also argued that the previous judgment granting deemed date of appointment to the said respondents is a nullity as the necessary parties were not impleaded in any of the two writ petitions filed by the said respondents. It is argued that petitioner No.1 has joined as DSP on 6.4.1990, therefore, failure to join petitioner No.1, in the earlier writ petition filed by respondent Nos. 4 and 5 violates the principles of natural justice as an order adverse to him has been passed without hearing him. Reliance is placed upon a Division Bench judgment of this Court in LPA No. 865 of 2002 (M.L. Kauskhik v. State of Haryana and another, decided on 13.10.2004) and Naresh Shridhar Mirajkar and others v. State of Maharashtra and another, AIR 1967 Supreme Court page 1, to contend that the previous judgment in the absence of the petitioner, which affects the right of the petitioner, can be challenged by way of the present writ petition. Shri Rajiv Atma Ram has also argued that the said respondents had not drawn any salary on the post of DSP from 21.4.1990 from which date, they have been given deemed date of appointment, nor discharged the same duties as the DSP prior to their actual appointment and, thus, they could not be granted deemed date of appointment and deemed date of confirmation. It is also argued that since the said respondents were holding substantially other posts on the deemed date of appointment and deemed date of confirmation, therefore, they cannot be granted deemed date of appointment as there cannot be two substantive appointments in respect CWP No. 3916 of 2006 (8) of one person. It has further been argued that the respondents cannot be confirmed from a date earlier than their completion of the probationary period in terms of letter of appointment and in terms of the Rules. On behalf of the State Government, reliance is placed upon Rule 10 of the Rules pointing out that the seniority of the direct recruits is as per the order of merit communicated by the Punjab Public Service Commission and in compliance of the earlier orders passed by this Court. It is the case of respondent Nos. 4 and 5 that they were reflected as senior to the petitioners in all the gradation lists from the year 1994 except Baljot Singh Rathore, who ranked senior on account of appointment against a reserved category i.e. the freedom fighters category. Still further, an order was passed by the State Government on 6.1.1995 Annexure P.3 in CWP No. 3916 of 2006 determining the seniority of directly recruited DSPs in the years 1985, 1987, 1990 and 1991. Though petitioner No.1 Baljot Singh Rathore in CWP No. 3921 of 2006 is reflected senior to the private respondents being a dependent of freedom fighter but the other petitioners are reflected as junior to the said respondents. The said seniority list was circulated to all the candidates including the petitioners herein. Therefore, the writ petitions suffer from gross delay and laches. It has been argued that the petitioners have not submitted any objections against the placement of the said respondents after the finalisation of the seniority of the direct recruits in the year 1995. We have heard learned counsel for the parties at some length. Before, we advert to the arguments raised by the learned counsel for the parties, it will be advantageous to reproduced the relevant extracts of the Rules:- CWP No. 3916 of 2006 (9) “8. Probation of members of Service, (a) Members of the Service shall be on probation for two years, which shall include the period of training in the Police Training School, Phillaur, and in the districts and in the case of members recruited by promotion, the Government may by a special order in each case permit periods of officiating appointment to the Service to count towards the period of probation. xxx xxx xxx “10. Seniority of members of Service.- The Seniority of members of the Service shall be determined by the date of confirmation in the service. Provided that if two or more members are confirmed on the same date; (i) a member who is appointed to the Service by promotion shall be senior to the member appointed otherwise; (ii) in the case of members who were appointed by direct appointment, the seniority shall be determined in accordance with their position in the competitive examination; (iii) in the case of members who were appointed to the service by promotion, the seniority shall be determined in accordance with the date of their entry in promotion list `G'.” A perusal of the facts would show that petitioner No.1 in CWP No. 3921 of 2006 and respondent Nos. 4 and 5 were the candidates recommended by the Punjab Public Service Commission on the basis of advertisement published in the year 1989 for 22 direct recruit vacancies of DSP. The petitioner No. 2 in 3921 of 2006 and petitioner in CWP No. 3916 of 2006, were the candidates recommended for appointment as a Scheduled Castes and Sports category candidates, respectively in pursuance of the CWP No. 3916 of 2006 (10) advertisement published in the year 1990. It may be noticed that though it appears that there was requisition for filling up of five direct recruit posts of DSP, but seven posts of DSP were advertised by the Punjab Public Service Commission after taking into consideration two posts, which fell vacant on account of non joining of two candidates, namely, Ravi Kumar and Barjinder Kumar Uppal, in pursuance of earlier selection. The appointment against said two posts were made subject to the decision of the writ petition vide order dated 18.8.1990 filed by respondent Nos. 4 and 5. The name of Shri Baljot Singh Rathore appears lower in order of merit than respondent Nos. 4 and 5 herein. His name was recommended as a dependent of the freedom fighter. The seniority of Shri Rathore and Respondent Nos. 4 and 5 is required to be determined keeping in view Rule 10(ii) of the Rules which contemplates that the seniority shall be determined in accordance with their position in the competitive examination. The other petitioners are in fact, the recommendees in pursuance of the subsequent advertisement. The argument that the respondents cannot be treated to be part of the competitive examination in pursuance of advertisement issued in the year 1989 is wholly untenable. The said respondents participated only in the appointment process initiated in the year 1989. Their writ petition seeking appointment against the available vacancy was allowed by this Court. Therefore, the appointment of the said respondents cannot be treated of any other batch except that of direct recruits appointed in pursuance of the advertisement issued in the year 1989. The argument raised by the learned counsel for the petitioner that the previous judgments passed by this Court are nullity on account of CWP No. 3916 of 2006 (11) non-impleadment of necessary and proper parties, such as the petitioners, is not tenable. As a matter of fact, when the respondents invoked the jurisdiction of this Court, the names of petitioner No. 2 in CWP No. 3921 of 2006 and petitioner in CWP No. 3916 of 2006 were not even recommended by the Punjab Public Service Commission. Therefore, they cannot make any grievance in respect of their non-impleadment in the writ petition by the said respondents. Petitioner Baljot Singh Rathore, though appointed on 6.4.1990, but in fact, has joined against the post reserved for the dependent of the freedom fighters. He was shown senior to the petitioner only for the reason of his appointment as a dependent of freedom fighter. Otherwise, he ranks lower in merit, as per the recommendations of the Punjab Public Service Commission (Annexure R.2). Therefore, the said petitioner cannot make any grievance in respect of appointment of respondent Nos. 4 and 5, who have been appointed as a general category candidates. The said petitioner is entitled to his seniority in terms of the Rules, which may be applicable in respect of seniority of dependents of freedom fighters. Even otherwise, the claim of respondent Nos. 4 and 5 was assertion of their right for appointment against the vacant post of DSP. In the first writ petition filed in August, 1990, there was no claim against any person. The challenge was to the action of the State Government in not recommending their names for appointment to the post of DSP, although they were next available candidates on merit. In these circumstances, the petitioners cannot claim to be a necessary party in a writ petition when the dispute of seniority was beyond imagination or contemplation. Therefore, the argument in respect of non impleading of the petitioners in the first writ CWP No. 3916 of 2006 (12) petition is without any merit. As far as the filing of the second writ petition by respondent Nos. 4 and 5 and non impleading the petitioners, is concerned, it may be noticed that the challenge was made by respondent Nos. 4 and 5 to the communication dated 13.6.1995 rejecting the representation of the said respondents for granting deemed date of appointment. Prior thereto vide order dated 6.1.1995, the seniority of the direct recruit DSPs has been determined by the State Government, wherein the petitioners, except Baljot Singh Rathore, are reflected as junior to the said respondents. At that stage, respondent Nos. 4 and 5 had no dispute with any other candidate, who is lower in merit in pursuance of advertisement issued in the year 1989. Such candidate alone could be said to be a necessary party. The petitioners, except Baljit Singh Rathore, are the recommendees in pursuance of subsequent selection and had no direct interest in the assignment of deemed date of appointment and confirmation to the said respondents. It is further noticed that an order was passed by this Court on 18.8.1990 that appointment to the two posts shall be subject to the decision of the said writ petition. The said two posts are the posts, advertised in the year 1989 against which respondent Nos. 4 and 5 have been adjusted. Therefore, for the said reason as well, it cannot be said that any of the recommendees in pursuance of the advertisement of the year 1990 was required to be impleaded as parties. As mentioned earlier, Shri Baljot Singh Rathore is lower in merit than respondent Nos. 4 and 5, but has been appointed as dependent of freedom fighter. His seniority position is distinct. Even otherwise, we do not find that there is any error in the judgments passed by this Court in year 1991 and 1997. Respondent Nos. 4 CWP No. 3916 of 2006 (13) and 5 were in merit of general category candidates. Two posts of DSP have fallen vacant. They were required to be offered appointment, but not granted appointment for the reason that another selection process has been initiated. The appointment of respondent Nos. 4 and 5 is against the vacancies which were advertised in the year 1989 and in respect of such vacancies, the candidates of the subsequent selection cannot be permitted to make any grievance. The petitioners cannot be permitted to raise any grievance in respect of appointments made against the vacancies advertised earlier to the vacancies in which they were recommended for appointment. The judgments referred to by the learned counsel for the petitioners that on account of non impleading of the necessary parties, there is a violation of the principles of natural justice and the previous judgments are not binding, is not a proposition which is required to be examined in great detail. However, in the facts of the present case, we are of the opinion that respondent Nos. 4 and 5 were not required to implead the petitioners herein, in any of the writ petitions for the reasons discussed above. The dispute of seniority now raised was earlier not in respect of any dispute of the claim of respondent Nos. 4 and 5 vis-a-vis the present petitioners but on the basis of assertion of their positive right of appointment in respect of the vacancies advertised. Therefore, the argument raised by the learned counsel for the petitioners is without any merit. The argument that respondent Nos. 4 and 5 were holding substantive post in the other departments and could not be granted deemed date of appointment on confirmation, is again misconceived. Deemed date of appointment is to be give n in terms of Rule 10 of the Rules contemplating seniority on the basis of recommendations of the Punjab CWP No. 3916 of 2006 (14) Public Service Commission. Since the said respondents were working on the other posts, they shall not be entitled to any salary or other benefits but they cannot be denied the benefit of seniority as they had right to be appointed along with other candidates selected in pursuance of the same selection process. They were not given appointment by the State Government and for such act of the State Government, the consequences cannot fall on respondent Nos. 4 and 5. The said respondents have a right of appointment along with other candidates after the candidates higher in merit did not join. The argument that the said respondents have been given deemed date of confirmation even before their actual appointment and from a date much before their actual completion of probation period, is again misconceived. Deemed date of appointment and