IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 8692 of 2007 Date of Order: 25.9.2009 S.K. Vats and others ...Petitioners Versus State of Haryana and others ....Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.K. Chopra, Senior Advocate with Mr. Amit Chopra, Advocate for the petitioners. (in CWP No.8692 of 2007) Mr. Virender Kumar, Advocate for the petitioner. (in CWP No.13987 of 2008). Mr. Sunil Nehra, AAG, Haryana. Mr. Rajive Atma Ram, Sr. Advocate with Mr. Nikhil Chopra, Advocate for respondent Nos.10,14,15,20 and 23. (in CWP No.8692 of 2007) Mr. Sanjeev Kaushik, Advocate for respondent Nos.3 to 10. (in CWP No.13987 of 2008) 1. To be referred to the Reporter or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J These two writ petitions bearing CWP No. 8692 of 2007 and CWP No. 13987 of 2008 involve common questions of law and facts and, CWP No. 8692 of 2007 therefore, a common judgment is proposed. Facts are being taken from CWP No. 8692 of 2008. Petitioners, who are working on the post of Sub Divisional Engineer, PWD, Water Supply and Sanitation Department (for brevity “SDE”) have approached this Court with the prayer for declaring Rule 12(2) and Rule 6(3) of the Punjab Service of Engineers, Class II, PWD (Public Health) Rules, 1966 (for brevity “1966 Rules”) as ultra vires. A further prayer has been made for quashing the Joint Seniority List from the roster of Sub Divisional Engineers (Civil) and (Mech.) of PWD, Public Health Branch issued vide memo dated 18.11.2003. Still further, a direction to the official respondents has been sought to place the petitioners at appropriate places over and above the private respondents, who are direct recruits. On 18.8.2009, at the request of Sh. Hari Om Atri, Advocate, petition qua petitioner No.1 was dismissed as withdrawn. Brief facts of the case are that the petitioners were working as Junior Engineers. They have to their credit the degrees of AMIE or B.E. They were promoted to the post of SDE in the year 1990 on account of administrative exigencies from the post of Junior Engineers being graduates, which is essential qualification for promotion to the post of SDE. The following table would show their dates of promotion to the post of SDE and also their date of appointment as Junior Engineers. Petitioner Date of Qualification Date of Sr.No. Roster No. apptt promotion in Point as J.E as SDE Seniority list ------------------------------------------------------------------------------------------- 2. 12.12.73 AMIE (C ) 9/17.4.90 294 290 3. 23.8.73 BE (C ) 9/17.4.90 Not mentioned in seniority list 4. 5.10.1973 BE (Civil) 9/17.4.90 302 298 2 CWP No. 8692 of 2007 5. 31.1.1974 BE (Civil) 9/17.4.90 322 318 6. 28.12.1973 AMIE (Civil) 9/17.4.90 342 338 7. 6.11.81 AMIE (C ) 4/90 Not mentioned in seniority list 8. 19.8.77 BE (C ) 5/90 Not mentioned in seniority list It is appropriate to mention that the promotion made by the respondents to the post of SDE in respect of the petitioners specifically incorporated in their letters of promotion that they were being promoted on purely temporary and ad hoc basis in H.S.E Class-II against the vacancies reserved for direct recruitment for a period of six months or till the duration of the Action Plan, whichever is earlier. The promotions were ordered by relaxing the provision of Rule 6 of the 1966 Rules. The aforesaid relaxation was required because the petitioners, who belong to promotee quota, were being given promotions against direct quota posts. The factual position is explicit by bare perusal of orders dated 6.4.1990, 10.12.1990 and 13.3.1992 respectively (P-1, P-2 and P-3). The petitioners continued working on the post of SDE till 1993 when the direct recruitment was made and the private respondents were duly selected by the Public Service Commission. In order to make room for the private respondent Nos.3 to 32 belonging to direct quota post, the reversion order in respect of the petitioners was issued. However, some of them approached this Court by filing CWP No.692 of 1994 and CWP No.12120 of 1996. First petition was filed by petitioner Nos.7 & 8 and the other petition was filed by petitioner No.3. Accordingly, by the interim order, their reversion was stayed. In view of the stay of reversion granted in respect of aforesaid petitioners, the Government did not revert similarly situated petitioners. However, on 12.3.2001, State of Haryana issued an order (Annexure P.8) adjusting the petitioners in their 3 CWP No. 8692 of 2007 respective quota of promotees as per Rule 6 of 1966 Rules and gave them the dates of their regular promotion in accordance with the availability of vacancies in their quota. The aforesaid order has not been challenged at any stage by the petitioners. Admittedly, they have been given the dates of promotion as per the date of vacancy in their own quota, which in any case happens to be later than the date of appointment of one or the other of the direct recruits as is evident from the stand taken by the respondents-State in para 3 of the preliminary objection. The table of dates of appointment given to the petitioner is as under: Sr. No. Name of petitioner Date of joining as Junior Engineer Date of acquiring AMIE/B.E qualifica- tion Date of ad hoc promotion as SDE Date of promotion of S.D.E on regular basis against quota post 2 R.S. Kundu 21.12.1973 3/1992 Deemed date of promotion as S.D.E on 6.4.1990 orders of promotion as SDE issued on 13.3.92 06/01/95 4 CWP No. 8692 of 2007 3 O.P. Arora 23.8.1973 6/1989 9/17.4.90 In his ACR for the year 1992- 93, adverse remarks about his integrity i.e not maintained and pending charge sheet, he was ignored for regularization of his services as SDE and now after expiry of time of riding effect & pending charge sheet was decided his services as Sub Divisional Engineer were regularized w.e.f 6.6.2005 4 H.R. Rawal 05/10/73 1986 9/17.4.1990 01/07/95 5 R.D. Sharma 31.1.1974 1986 9/17.4.1990 06/01/95 6 G.S. Boora 28.12.1973 1986 9/17.4.1990 06/08/97 7 D.K. Arora 06/11/81 1986 14.5.1990 He has been ignored for regularization of services as SDE due to disciplinary proceedings pending against him 8 Sunil Kumar Garg 22.8.1977 1989 14.5.1990 06/06/05 It is pertinent to notice that one of the petitioners D.K. Arora, who is at Sr.No.7 of the table, has not been promoted on account of disciplinary proceedings pending against him. In the aforesaid background the issue which arises for consideration is, whether the petitioners who belong to promotee quota and 5 CWP No. 8692 of 2007 were given appointment on ad hoc basis against the direct quota posts, can claim seniority for the period they have held the post belonging to direct recruit quota. The question whether promotee when promoted in excess of their quota could claim seniority for the period they were holding direct quota or any other quota post has been answered repeatedly in the negative. The reason is that such persons would not become substantive member of HSE Class II Service until they are adjusted against promotee quota post otherwise they keep hanging outside the service. A similar question involving similar rules has arisen before Hon’ble the Supreme Court in the case of A.N. Sehgal v. Raje Ram Sheoran, 1992 (3) SLR 66. In para 21 of the judgment it was held as under:- “……The result is that the promotee occupying the posts within 50% quota of the direct recruits, acquired no right to the post and should yield to direct recruit, though promoted later to him, to the senior scale posts i.e., Executive Engineer, Superintending Engineer and Chief Engineer. The promotee has right to confirmation in the cadre post as per Rule 11(4) if a post is available to him within his quota or at a later date under Rule 5(2) read with R. 11(4) and gets appointment under S. 8(11). His seniority would be reckoned only from the date of the availability of the post and the year of allotment, he shall be next below to his immediate senior promotee of that year or the junior most of the previous year of allotment whether officiating or permanent occupying the post within 50% quota. The officiating period of the promotee between the dates of initial promotion and the date of the availability of the cadre post would thus be rendered fortuitous and stands excluded. … 6 CWP No. 8692 of 2007 …” Similar view has been taken by Hon’ble the Supreme Court in the cases of A.K. Subraman and others v. Union of India, 1975 (1) SLR 380 and S.L. Chopra v. State of Haryana, 1992 (3) SLR 80. When principles, which emerge from the aforesaid judgments of Hon’ble the Supreme Court are applied to the facts of the instant case then no doubt is left that the petitioners who are promotees to the post SDE against direct quota post would not become entitled to seniority for the period they held the direct quota post. They would be entitled to count that period for seniority which they spent after they were given the post of their own promotee’s quota. The order dated 12.3.2001 (P-8) has given the petitioners their due dates of promotion as per their adjustment in their promotees’ quota post/vacancy. The aforesaid order has never been challenged and, therefore, it has attained finality. Moreover, it cannot be argued that the petitioners became member of service within the meaning of Rule 2(12) in pursuance of promotion orders issued on 6.4.1990, 10.12.1990 and 13.3.1992 (P-1, P-2 & P-3). They would become member of service only after they get a post/vacancy in their own quota and get appointed to a substantive post. Till the time, they get the substantive post on the basis of regular appointment, they would hang outside the service, which would not qualify for the purposes of seniority. In view of the well settled principles of various judgments of Hon'ble the Supreme Court referred above, the question of vires of Rule 6(3) of 1966 Rules would not arise. As a sequel to the above discussion, these petitions do not warrant admission and, therefore, both the petitions are hereby dismissed. 7 CWP No. 8692 of 2007 (M.M. KUMAR) JUDGE (JASWANT SINGH) September 25, 2009 JUDGE manoj/Pkapoor 8