CWP No.5284 of 1992 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.5284 of 1992 Date of decision : 17-08-2010 Parshotam Lal Bhalla and others .... Petitioners VERSUS Haryana State Electricity Board ....Respondent CORAM:- HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Madan Mohan, Advocate, for the petitioners. Mr. O.P. Sharma, Advocate, for the respondent. KANWALJIT SINGH AHLUWALIA, J. (Oral) Petitioners, four in number, were working as Assistant in the office of Haryana State Electricity Board (hereinafter referred to as 'Board'). They have prayed that seniority list of Assistants dated 26.08.1976 circulated by the respondent vide Annexure P-5 and seniority list dated 10.12.1991 (Annexure P-11) be quashed so far as they reckon the seniority of the petitioners from the date of passing of the departmental examination. It has been further prayed that respondent – Board be directed to redetermine and readjust the seniority of the petitioners in accordance with the statutory rules called the Punjab P.W.D. (Electricity Branch) Provincial Services Class III (Subordinate Posts) Rules, 1952. Petitioner No.1 was appointed as a Lower Division Clerk on CWP No.5284 of 1992 -2- 14.01.1966. He was promoted as Upper Division Clerk in an officiating capacity in relaxation of the Rules on 15.04.1967. This promotion was made subject to the passing of departmental tests examination within two years. He passed the said examination in May 1968. However, he was continuing to officiate as Upper Division Clerk w.e.f. 15.4.1967. The seniority list of Lower Division Clerks was issued by the respondent – Board on 19.03.1970. Petitioner was placed at serial No.102. Thereafter, Board issued a seniority list of Upper Division Clerks as it stood on 31.08.1968 but the name of the petitioner was not included in the said list. Similarly, instances of other petitioners have been given. The present writ petition calls for interpretation of Rule 9 of the Punjab P.W.D. (Electricity Branch) Provincial Services Class III (Subordinate Posts) Rules, 1952 for determination of seniority. Rule 9 reads as under:- "9. The Seniority of the members of the service for the time being serving in each class of appointment shown in Appendix 'A' shall be determined as follows:- SENIORITY OF THE MEMBERS OF THE SERVICE i) Prior to confirmation (i.e. in the cause of persons serving on probation or in an officiating capacity) in the order of the dates of their appointment or if such date be the same in respect of two or more persons, in the order of their ages, the elder being placed above the younger. ii) after confirmation, by their respective dates of confirmation, provided that where two or more members are confirmed w.e.f. the same date they will retain the order of confirmation. EXCEPTION: If a member of the service is promoted CWP No.5284 of 1992 -3- temporarily to a post earlier than his senior, for reasons other than the inefficiency of the senior person they will take rank inter-se according to their relative seniority in the class from which they were promoted and the junior person thus promoted shall not be confirmed form a date earlier than the date of confirmation of his senior except on the score of inefficiency of the latter. Provided further that if a member is appointed to a higher class later than a person who was junior to him in the lower class for reasons which the appointing authority may certify in writing to be connected with the Public interest the person so appointed shall be given the same seniority in the higher class vis-a-vis such junior as he held in the lower class." Though employees of the Board who had not passed the departmental examination were promoted, but from which date they shall be entitled for seniority was the question raised in 'Gobind Ram Sharma versus The Haryana State Electricity Board and others' CWP No.2420 of 1972, decided on 30.08.1983. Petitioner therein, like present petitioners, at the time of promotion had cleared two papers and he had to pass other two papers. In case of a similar employee relying upon Gobind Ram Sharma's case and a case of Hukam Chand Garg, this Court in CWP No.6400 of 1992 titled as 'Nand Lal Bhatia versus Haryana State Electricity Board and others' decided on 2.07.2010 has observed as under:- "At the time of promotion, petitioner had cleared two papers and he had to pass other two papers, as the departmental examination which entitled petitioner to promotion consisted of four papers pertaining to different subjects. Thus promotion granted to petitioner vide Annexure P-3 on CWP No.5284 of 1992 -4- 17.10.1967 was provisional. A note was given in the appointment letter that the promotion of the petitioner has been made provisionally on purely temporary basis. One Gobind Ram Sharma co-employee of the petitioner preferred a Civil Writ Petition No.2420 of 1972, titled as "Gobind Ram Sharma versus The Haryana State Electricity Board and others" decided on 30.08.1983, in this Court. Gobind Ram Sharma was denied seniority on the ground that in terms of Rule 13 of the Departmental Accounts Examination Rules he had not cleared the papers and thus his promotion was purely provisional. An argument was raised in Gobind Ram Sharma's case that the date of appointment should be the only criteria and the rules which required passing of the examination were challenged. This Court in Gobind Ram Sharma's case upheld the rules which prescribe departmental examination but however held that once an employee is confirmed on the promoted post, the passing of the examination could not be made a condition of service. The relevant portion of Gobind Ram Sharma's case is read as under:- “11. After an official is confirmed and is promoted to the next service, then the service conditions are governed by the conditions governing the post which he holds after promotion. As held earlier, passing of the Departmental Accounts Examination was a condition of his appointment, that is, the condition of his initial service, to which he was appointed and confirmed. There is only Departmental Accounts Examination which was a condition of the Service to which he was initially appointed. When he, after confirmation, was promoted to the next cadre by the waiving of the condition, the test of the same examination could not be made a condition of that service. Rule CWP No.5284 of 1992 -5- 9 does not provide any such examination for confirmation in the next post or for the determination of his seniority. By its delayed action, the respondent wanted to impose the condition on the petitioner in the Upper Division Clerks Service about the passing of the Departmental Accounts Examination. The imposition of such a condition at this late stage is not permissible as held in State of Haryana and others v. Shamsher Jang Bahadur and others, 1972 SLR 441. The insistence of the respondent on the petitioner to pass the Departmental Accounts Examination for the determination of his seniority in the promoted service is not tenable. His seniority has to be taken into consideration from the date of his promotion. 12. In view of the above-mentioned discussion, the petition is accepted and the seniority list Annexure 'G' is hereby quashed. The respondents are directed to redetermine the seniority of the petitioner in view of the observations made above. In case any person junior to him has been promoted, the respondent shall consider the petitioner, subject to the suitability etc., to the next post from the date on which his juniors have been promoted. In case of his promotion, the consequential reliefs flowing from the promotion be given to him. The respondent shall finalise the seniority list within six months from today. No order as to costs.” Sh. Anil Khetarpal, Advocate appearing for the petitioner has stated that service of the petitioner as Upper Division Cleark was confirmed w.e.f. 25.02.1970. Sh. Adarsh Jain, Advocate appearing for the respondents also confirms this fact. Other employees, CWP No.5284 of 1992 -6- Hukam Chand Garg and Balbir Singh approached the Civil Court. Their matter stood concluded vide Regular Second Appeal No.179 of 1989 decided on 27.08.1990. The decision in Regular Second Appeal in Hukam Chand Garg's case was based on the ratio of law propounded in Gobind Ram Sharma's case. The Electricity Board has allowed a piquant situation too occur. Anybody, who is similarly situated, has approached this Court by filing a writ petition or went to Civil Court, was given benefit of Gobind Ram Sharma's case and in case of that employee, date of confirmation to the promoted post was made basis of the seniority whereas it was denied to others like the petitioner. Since the Board had not followed the uniform policy and failed to dispense with equal consideration to all the employees, petitioner was compelled to approach this Court by filing the present writ petition. This Court is of the view that equity and fair play demand that the employer should follow uniform criteria and two employees similarly situated cannot be dealt with differently. The contention raised by Sh. Adarsh Jain, Advocate that the judgment of Gobind Ram Sharma was judgment in persona and therefore the Board was not bound to follow it qua each employee is to be rejected at the outset. Thus, it is held that the petitioner is also entitled to the benefit which flows to Gobind Ram Sharma and Hukam Chand Garg and, therefore, 25.02.1970 the day when petitioner was confirmed as Upper Division Clerk is to be considered as the date when seniority among Upper Division Clerk is to be drawn." Sh. O.P. Sharma, Advocate appearing for the Board has further relied upon a Division Bench judgment of this Court in Letters Patent Appeal No.192 of 1993 titled as 'Jagdish Singh versus Haryana State Electricity Board and others' decided on 24.02.1998. CWP No.5284 of 1992 -7- In the said appeal, the following question was dealt with:- “Can a member of the ministerial establishment in the Electricity Board be confirmed prior to the date of passing the departmental examination as prescribed under the rules?" It was concluded by the Letters Patent Bench that a member belonging to ministerial establishment cannot be confirmed prior to the date of his passing the departmental examination. It was further held that interpretation of the Rule excludes discretion and ensures uniform method for determination of the seniority of the employees. Thus even though an employee had been provisionally promoted, but for determination of the seniority, date of confirmation is the yardstick. It is stated that petitioners have retired. Maxim of 'no work no pay' has to apply. Since the petitioners have discharged duty on the promoted post, therefore, they cannot be given any financial benefit. However, considering the date of their confirmation as Upper Division Clerk, their seniority shall be redetermined and all notional promotions shall be granted to them. However, they will be entitled to consequential terminal benefits, if the same accrue to them. With the observations made above, the present writ petition is disposed of. (KANWALJIT SINGH AHLUWALIA) 17-08-2010 JUDGE manju