C.W.P.No.4969 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.4969 of 2011(O&M) Date of decision : 19 .12.2011 Sunila Grewal and others ....Petitioners Versus State of Haryana and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present : Mr. Girish Agnihotri, Sr. Advocate with Mr. Saurabh Gulia, Advocate for the petitioners Mr. Sunil Nehra, Sr. DAG, Haryana Mr. Rajiv Atma Ram, Sr. Advocate with Ms. Trishanjala Sharma and Mr. I.P.Goyat, Advocates for the respondents no. 3, 4, 6 to 9, 11, 12, 14 and 15 MAHESH GROVER, J. The petitioners who were working as Excise and Taxation Officers after having been promoted as such from the post of Assistant Excise and Taxation Officers have a two fold grievance:- (i)that the tentative seniority list issued on 15.3.2010 in which they were shown senior to the private respondents has been changed to their disadvantage without affording them any opportunity of hearing. (ii)That Rule 11 of the seniority list envisages the assignment and determination of seniority on the basis of continuous length of service and since by way of seniority list dated 15.3.2010 the petitioners were assigned a date of C.W.P.No.4969 of 2011(O&M) 2 appointment of the year 2003 when the vacancies were determined, they necessarily have to be considered senior to the private respondents who were appointed in the year 2004. The facts of the case are that the petitioners were working as Assistant Excise and Taxation Officers having been selected as such on various dates occurring in the year 1993. Some of the colleagues of the petitioners were promoted on ad hoc basis in 2003 while the petitioners were not granted the similar benefits as the posts of Excise and Taxation Officers were not available. On 20.11.2003 a proposal was initiated to permit the petitioners promotion to the post of Excise and Taxation Officers from the posts of Assistant Excise and Taxation Officers but the process was delayed and according to the petitioners deliberately. Finally, the petitioners were promoted on 9.1.2004. The private respondents were appointed directly as Excise and Taxation Officers on 3.1.2004. A tentative seniority list of Excise and Taxation Officers was circulated on 20.12.2005 in which the direct recruits were shown at sr.nos. 29 to 43 while the petitioners were shown at sr.nos.48 to 54. This resulted in spate of representations in which the aggrieved parties i.e the promotees inter alia prayed that the quota inter se between the direct recruits and promotees be re-assessed and after making the necessary exercise the seniority list be determined. These representations made by the petitioners as also the direct recruits were considered by the respondents and the amended tentative seniority list was issued on 15.3.2010 showing the petitioners to be senior to the direct recruits. C.W.P.No.4969 of 2011(O&M) 3 The direct recruits who were aggrieved filed a civil writ petition bearing no. 9798 of 2010 and during the pendency of the same, the respondents have issued the final seniority list. On 21.2.2011 (Annexure P- 22 ) which is now the cause of grievance of the petitioners as they have been shown juniors to the direct recruits as noticed above. The grievance is confined to two aspects of not being heard and that the proposal having been initiated when the vacancies existed prior to the joining of the direct recruits, they ought to be considered as senior. The respondents have reacted to the petition by saying that the opportunity of hearing was given to both the affected parties and merely because a proposal was initiated prior to the appointment of the private respondents and merely because vacancies existed prior to the appointment of the respondents would not confer any benefit of seniority upon the petitioners. It has been stated in the reply and also noticed in the impugned order that the cadre strength was re-assigned and re-structured at the time when the direct recruitment was made in the year 2003 and 64 new posts of Excise and Taxation Officers were created/approved by the Finance Department vide its decision dated 19.12.2003 and out of these 64 posts 43 posts were meant for the promotees while the remaining fell to the share of direct recruits. The sanction for these posts was given on 15.1.2004 and thus the petitioners were assigned the seniority by taking their date of appointment to the post w.e.f 15.1.2004 which is the date of the petitioners' promotion whereas the respondents stood appointed as direct recruits on 4.1.2004. Learned counsel for the petitioners and the respondents have made their assertions and counter assertions primarily on the afore-stated C.W.P.No.4969 of 2011(O&M) 4 stand which they have taken in respect of their pleaded case. The Court is thus left to evaluate as to whether the impugned order is justified in unsettling the tentative seniority list issued on 15.3.2010 by which the petitioners stand disadvantaged. The foremost point thus to be considered is the Rule 11 which prescribes the determination of mode of seniority envisages that seniority is to be determined by taking into consideration the continuous length of service. The rule is extracted herebelow:- “11. Seniority - Seniority inter se of the members of the service, shall be determined by the length of continuous service on any post in the service. Provided that where there are different cadres in the service, the seniority shall be determined separately for each cadre: Provided further that in case of a member appointed by direct recruitment , the order of merit determined by the Commission or any other recruiting authority as the case may be, shall not be disturbed in fixing the seniority: Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows:- (a) a member appointed by direct recruitment shall be senior to a member appointed by promotion or by transfer: (b) a member appointed by promotion shall be senior to a member appointed by transfer. (c ) In the case of a member by promotion or by C.W.P.No.4969 of 2011(O&M) 5 transfer, seniority shall be determined according to the seniority of such members in the appointment from which they are promoted or transferred and (d ) In the case of members appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a member who was drawing a higher rate of pay in his previous appointment, and if the rate of pay drawn are also the same, then by the length of their service in the appointments and if the length of such service is also same, the older member shall be senior to the younger member.” Rule 9 provides that the recruitment to service shall be made in the following manner:- “9 Method of recruitment – Recruitment to the service shall be made - (a ) in the case of Excise and Taxation Officer; (i)662/3% by promotion from amongst Assistant Excise and Taxation Officers; (ii)331/3% by direct recruitment or (iii)By transfer or deputation of an officer/official already in the service of any State Government or Government of India. Xxxxxx xxxxxx xxxxx” It is clear therefore that 2/3rd posts of Excise and Taxation Officers are to be filled amongst from the promotees i.e Assistant Excise and Taxation Officers and 1/3rd by direct recruitment. The re-structuring of C.W.P.No.4969 of 2011(O&M) 6 the cadre to assess the availability of posts vis-a-vis the direct recruits and promotees was undertaken in the year 2003 and according to which exercise 64 posts of Excise and Taxation Officers were available out of 43 were assigned to promotees. The petitioners contend with reference to Annexure P-3 which is a letter from Excise and Taxation Commissioner dated 20.11.2003 which reflects that 38 posts of Excise and Taxation Officers had become available on account of either the retirement or on account of the death of the incumbents who were working as such and out of these 38 posts 8 posts were upgraded to the posts of Deputy Excise and Taxation Commissioner vide order dated 15.1.2000 and 4 posts were adjusted against Excise and Taxation Officers directly recruited in December, 2002 which left the availability of 26 posts and out of which 15 posts were meant of direct quota and 11 posts of promotees. It is also mentioned in this order that requisition of 15 posts have been sent to Chief Secretary to Government of Haryana vide letter dated 7.1.2002. 11 posts were available for promotee quota and one post was to be made available on retirement of one incumbent Excise and Taxation Officers on 30.11.2003. In short, the total available posts of promotee quota would be 12 and thus recommendation was made that these be filled up from the Assistant Excise and Taxation Officers as per their seniority and their eligibility and the names of the petitioners were specifically mentioned to be the beneficiaries of the initiated promotion. This according to the learned counsel for the petitioners was sufficient to confer seniority upon them over and above the case of direct recruits as it is their positive case that it is not on account of their fault that the actual appointments could not be made. According to them the C.W.P.No.4969 of 2011(O&M) 7 vacancies existed and their names had been initiated but which fructified at a subsequent date. This to the opinion of this Court is an argument seeped in fallacy. Merely because vacancies existed and a proposal initiated would not ipso facto confer any benefits of appointment or its attending circumstances. Rule 11 is explicit in nature that seniority has to be conferred by keeping in view the continuous length of service and a service on a particular post has to commence from the date when the post is filled up and nor merely when it is requisitioned. Hon'ble Supreme Court in case titled as Nani Sha and others Vs. State of Arunachal Pradesh and others and others (2007) 15 SCC 406 has observed as follows:- “14. Therefore, one thing is certain that the appellants did not have right to claim a retrospective seniority particularly over and above the respondents who had been working in the post of ACF right from July, 1996. 15.This Court in a reported judgment in State of Uttranchal & Anr. Vs. Dinesh Kumar Sharma [(2007) 1 SCC 683] has clearly held that the seniority is to be reckoned not from the day when the vacancy arose but from the date on which the appointment is made to the post. There this Court was interpreting Rules 17 and 21 of the U.P. Agriculture Group B Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority Rules, 1991. This Court disapproved the stance taken by the High Court that the directions should have been given not from the date of appointment but with C.W.P.No.4969 of 2011(O&M) 8 retrospective effect when the vacancy arose. The following observations in para 34 are speaking and would close the issue: "34 Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-1996 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik vs. State of Orissa [(1998) 4 SCC 456]". (Emphasis Supplied)” 16.Lastly, the High Court has specifically rejected the claim of the appellants on another ground, namely, that the appellants were not borne in the cadre of the ACF on the date from which they have been given the seniority. We are in complete agreement with the High Court, particularly in view of the decision of this Court reported in State of Bihar & Others vs. Akhouri Sachindra Nath [(1991) Supp. 1 SCC 334] which decision was reiterated in the case of State of Bihar & Ors. Vs. Bateshwar Sharma [(1997) 4SCC 424]. We do not want to burden this judgment with further reported decisions. However, the same view has been taken in another reported C.W.P.No.4969 of 2011(O&M) 9 decision of this Court in Uttranchal Forest Rangers' Asson. (Direct Recruit) & Ors. Vs. State of U.P. & Ors [JT 2006 (12) SCC 513] where in paragraph 18 this Court has taken a view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to be adversely affecting those who were appointed validly in the meantime.” The contention therefore has to be outrightly rejected, for the aforesaid reasons and also for the reason that the petitioners came to occupy these posts on 15.1.2004 which is the date subsequent to the one when the private respondents were appointed i.e. on 4.1.2004. Having said this, the Court is now left to evaluate as to whether the petitioners were given an opportunity of being heard before passing of the impugned order and whether any prejudice has been caused to him on this count in the eventuality of a conclusion being derived that they were not heard. In the impugned order while referring to the process adopted the respondents have stated as under:- “On the representations submitted by the promotees and direct quota Excise and Taxation Officers comments of Excise and Taxation Commissioner were called for and after obtaining comments from the Excise and Taxation Commissioner Haryana an amended tentative seniority list was issued on 15.3.2010 and objections were invited” Thereafter it goes on to say that against amended tentative seniority list circulated on 15.3.2010 Sh. Sanjay Rathee and others filed CWP no. 7978 of 2010 in this Court for quashing the aforesaid list. After C.W.P.No.4969 of 2011(O&M) 10 noticing this the conclusion has been given in para 5 which is extracted herebelow:- “After considering all pros and cons and the plea of the petitioners and keeping in view all facts and circumstances of the case the Governor of Haryana is pleased to fix the inter se seniority of Excise and Taxation Officers of the Excise and Taxation Department from 2.5.2002 to 28.2.2005 as per quota provided in the service Rules as under:” Two things stand out; one that the fact of petitioners having been heard has not been specifically been mentioned except to say that the respondents have considered the pros and cons and the plea of the petitioners which in this case possibly can be considered to be a reference to the petitioners in CWP no. 7978 of 2010 who were the direct recruits. The petitioners have raised a specific grouse in para 19 (1) that the order has been passed without affording any opportunity of hearing to them which is in violation of principles of natural justice. In the reply submitted to this specific averment the official respondents have merely stated that the action of the Government “cannot be said to be violative of the principles of natural justice in any manner. The seniority list has been prepared as per the well founded principles as laid down by the laws and rules in this regard as explained above.” Therefore there is sufficient ambiguity in the response filed by the respondents which does not clearly spell out as to whether the case of the petitioners was evaluated or not. The suspicion is strengthened from the fact that even the impugned order in its conclusion is quite vague and all that it says is that the order has been passed keeping in view all the facts and C.W.P.No.4969 of 2011(O&M) 11 circumstances of the case. Prior thereto is a narration of facts which cannot be said to be a reflection on the reasoning adopted by the respondents in passing of the impugned order. For the aforesaid reasons, this Court is of the opinion that it seems that the impugned order has been passed without hearing the petitioners and this Court would have ordinarily remitted the matter back for fresh decision but for the fact that the matter has been argued threadbare and both the parties have agitated their grievance before this Court and regarding which this Court has made its observations in the foregoing paragraphs. In such an eventuality it would be a futile exercise to remit the matter back for a fresh decision. That apart it is evident that the petitioners were conscious of the controversy as they were arrayed as respondents in CWP no. 7978 of 2010 which was filed by the private respondents to challenge the seniority list dated 15.3.2011. The Hon'ble Supreme Court has held that it is not ipso facto that every violation of principles of natural justice should result in setting aside of an order to which challenge is made on such a ground unless it is demonstrated that substantial injustice has resulted as a consequence thereof. Similar view has been held in case titled as State Bank of Patiala Vs. S.K.Sharma AIR 1996 SC 1669:- “5. Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of C.W.P.No.4969 of 2011(O&M) 12 natural justice [rule of audi alteram] and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid [one may call it "void" or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule [audi alteram partem ]. (b) But in the latter case, the effect of violation [of a facet of the rule of audi alteram] has to be examined from the standpoint of prejudice; in other word in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem[the primary principle of natural justice]the Court/ Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It C.W.P.No.4969 of 2011(O&M) 13 is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have tobalance public/State interest with the requirement of natural justice and arrive at an appropriate decision.” Hence, the instant petition is held to be without any merit and the same is hereby dismissed. December 19 , 2011 (Mahesh Grover) rekha Judge