Civil Writ Petition No.7435 of 1991 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision :- 16.2.2011 Rana Balbir Singh Saini, Mandi Supervisor ....Petitioner Versus Haryana State Agricultural Marketing Board, Panchkula & Others ....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.Rajbir Sehrawat, Advocate for the petitioner. Mr.Nitin Jain, Advocate for the respondents. M ehinder S ingh S ullar, J. (Oral) The symposium of the facts, culminating in the commencement, relevant for the limited purpose of deciding the instant writ petition and emanating from the record, is that the petitioner was appointed as Vigilance Supervisor on 13.3.1970 by the Haryana State Agricultural Marketing Board (respondent No.1) (for brevity “respondent-Board”) in the pay scale of ` 110-4-130/5-160/5-225, by virtue of appointment letter (Annexure P1). Thereafter in the year 1974, the respondent-Board decided to abolish the Vigilance Cell. As a sequel to the decision, all the persons, working in it were served with a one month's notice (Annexure P2) for terminating their services. 2. In the wake of request of employees of Vigilance Cell, the respondent-Board decided and adjusted them on the posts of equivalent ranks. They were stated to have been adjusted against the posts of Clerks, Auction Recorder and Care Takers. Consequently, the petitioner was also offered the post of Clerk, vide option letter dated 25.2.1974 (Annexure P3). In pursuance thereof, the petitioner joined the new post on 1.3.1974 (forenoon), by way of joining report (Annexure P4). 3. The petitioner claimed that the respondent-Board decided to allow Civil Writ Petition No.7435 of 1991 2 the same pay, which he and other persons were drawing as Vigilance Supervisors and the period, for which they worked on such posts, shall be counted for the purposes of benefits of increments, leave and seniority etc. in their new posts, by means of office order dated 15.6.1974 (Annexure P5). In the meanwhile, the respondent-Board framed its service rules with effect from 14.6.1974 and Rule 12 of the Rules deals with the seniority of members of the service. As the respondent- Board proposed to correct the seniority list, therefore, the provisional gradation list of Clerks/Auction Recorder/Care Takers was circulated, vide letter dated 10.1.1987 and objections were invited in this respect. Then, the respondent-Board proposed to change the seniority of its employees, by virtue of impugned letter/extract of seniority list dated 11.12.1989 (Annexure P9) and they were asked to file the objections if any. In pursuance thereof, the petitioner filed the representation, which was rejected, by the Chief Administrator (respondent No.3), by way of impugned order dated 6.5.1991 (Annexure P10) and the seniority list (Annexure P9) was made absolute in this context. 4. The petitioner did not feel satisfied and preferred the instant writ petition, challenging the impugned notice/extract of seniority list (Annexure P9) and the impugned order (Annexure P10), invoking the provisions of Articles 226 and 227 of the Constitution of India. 5. The case set up by the petitioner, in brief in so far as relevant, was that once he was adjusted/absorbed by the respondent-Board in the cadre of Clerk, therefore, he was entitled to count his previous service as Vigilance Supervisor for the purposes of increments and seniority etc. It was pleaded that even the same benefits were granted, vide office order (Annexure P5) and accordingly the seniority was fixed. The plea of discrimination has also been pressed into service by the petitioner. 6. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that the benefits of his previous service as Civil Writ Petition No.7435 of 1991 3 Vigilance Supervisor once granted, cannot be withdrawn at this belated stage in the garb of Rule 12 of the Service Rules. On the basis of aforesaid allegations, the petitioner sought the quashment of impugned notice and order (Annexures P9 and P10), in the manner depicted hereinabove. 7. The respondents contested the claim of the petitioner and filed their joint written statement, inter-alia pleading certain preliminary objections of, maintainability of the writ petition, locus standi, cause of action of the petitioner and objection of non-impleadment of necessary parties. On merits, the case set up by the respondents, in brief in so far as relevant, was that having taken its decision to abolish the Vigilance Cell, one month's notices, proposing to terminate the services of the similarly situated employees, including the petitioner, were issued. They approached the respondent-Board to adjust them on some other suitable posts and accordingly, the authorities, taking a sympathetic and lenient view, decided to adjust them on the equivalent posts carrying the same pay scales and issued the appointment letters to them. They were stated to have been adjusted in order to save them from un-employment. 8. The case of the respondent-Board further proceeds that the appointment letter (Annexure P3) was a fresh appointment purely on temporary basis and it was specifically mentioned in it that the services of the petitioner will be governed by the Rules & Regulations, as applicable and may be framed for its employees from time to time. There is nothing in the order that services of the petitioner in the Vigilance Cell will be counted towards seniority. The office order dated 15.6.1974 (Annexure P5) was stated to have been issued by the Secretary one day after the commencement and contrary to the Rules, which came into operation with effect from 14.6.1974, is of no consequence and the petitioner cannot derive any benefit out of it. 9. In all, according to the respondent-Board that fresh appointment, on compassionate ground, was given to the petitioner, by virtue of appointment letter Civil Writ Petition No.7435 of 1991 4 (Annexure P3) and since the services of the employees are governed by the Service Rules of the Board, so, the services of the petitioner rendered in abolished Vigilance Cell, cannot be counted for the purpose of seniority, as it was not the service in the cadre. The earlier error committed by the authorities was subsequently corrected in view of the Service Rules. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 10. Controverting the allegations contained in the written statement and reiterating the pleadings of the writ petition, the petitioner filed the replication. That is how, I am seized of the matter. 11. Assailing the impugned orders, the learned counsel has contended with some amount of vehemence that since the petitioner was absorbed in the cadre of the respondent-Board, so, his previous service rendered in the Vigilance Cell, is liable to be counted towards seniority etc., in view of office order (Annexure P5) of the Secretary. In support of his contention, he has placed reliance on the judgments of Hon'ble Apex Court in case B.S.Bajwa v. State of Punjab 1998 (1) S.C.T. 670 and this Court in case Sarv Mittar Sharma, Special Secy., Punjab and Haryana High Court v. Punjab and Haryana High Court, Chandigarh through its Registrar 1992 (2) P.L.R. 53. 12. On the contrary, hailing the action, the learned counsel for the respondents urged that the appointment of the petitioner, by way of appointment letter (Annexure P3), was fresh, purely on temporary basis and he was adjusted on sympathetic consideration. The argument is that as the services of the employees of the respondent-Board are governed by the Service Rules, therefore, the petitioner cannot take the benefit from the alleged letter (Annexure P5) written by the Secretary, without any authorization, which is contrary and will not override the provisions of the Service Rules. Thus, the petitioner is not entitled to any relief in this relevant direction. Civil Writ Petition No.7435 of 1991 5 13. Having heard the learned counsel for the parties, having gone through the record and relevant law with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this regard. 14. What is not disputed here is that petitioner has retired from service since long. As is evident from the record that he was appointed by the respondent- Board in Vigilance Cell, by means of appointment letter (Annexure P1). As the respondent-Board decided to abolish the Vigilance Cell, therefore, one month's notice (Annexure P2) for terminating the services of the petitioner was served upon him. The respondent-Board claimed that such employees of the Vigilance Cell approached and requested it to consider their case sympathetically. Their request was accepted and they were offered fresh appointments, by virtue of appointment letter (Annexure P3) purely on temporary basis, with a clear stipulation that their services will be removed on either side except subject to terms and conditions mentioned therein and their services will be governed by the Service Rules/regulations of the respondent-Board. The petitioner is basing his claim on the office order (Annexure P5) issued by the Secretary of the Board. 15. Above being the position on record, now the short and significant question, though important, that arises for determination in the present writ petition is, as to whether the services rendered by the petitioner in the abolished Vigilance Cell would count for the purpose of his seniority or not ? 16. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer is in the negative and the petitioner cannot claim the seniority on the basis of his previous service in abolished Vigilance Cell against the statutory rules. 17. In B.S.Bajwa's case (supra), the Hon'ble Supreme Court observed in para Nos.6 and 7 as under:- “Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the Single Judge and, therefore, the Civil Writ Petition No.7435 of 1991 6 judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance was made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been reopened after the lapse of such a long period. At every stage others were promoted before B.S. Bajwa and B.D. Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition. In view of the above conclusion it is not necessary for us to express any opinion on the merits of the point raised by B.S.Bajwa and B.D.Gupta. We make it clear that the view thereon taken by the High Court is not to be treated as concluded or having affirmation of any kind. The appeal of B.S.Bajwa and B.D.Gupta are dismissed and the appeal filed by D.P.Bajaj and Jagir Singh is allowed. With the result that the judgment of the Single Judge of the High Court is set aside and the writ petition filed by B.S.Bajwa and B.D.Gupta stand dismissed.” 18. Sequelly, in Sarv Mittar Sharma's case (supra), the Chief Justice, who was the competent authority, granted the necessary relaxation permitting the petitioner to exercise his option for revised pay scales. The relaxation having been given by the Chief Justice and communicated to the petitioner therein remained in its full effective operation till the same was recalled by the Acting Chief Justice. On the peculiar facts and in the circumstances of those cases, it was observed that such benefits already granted, cannot be withdrawn at the belated stage. 19. Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of the petitioner in the instant controversy. 20. As is evident from the record, that the respondent-Board circulated and invited the objections to correct the tentative seniority list (Annexure P9). Civil Writ Petition No.7435 of 1991 7 Taking into consideration the objections of the petitioner and other employees, the Chief Administrator of the respondent-Board corrected the seniority list, in view of Rule 12, by way of impugned order (Annexure P10), the operative part of which is as under:- “I have gone through all the facts and circumstances of the case. I do not agree with the pleadings of the official in question. On the abolition of the Vigilance Cell, these officials were given alternative job to save them from un-employment. Rule 12 of the HSAM Board Service Rules stipulates that seniority inter se of members of the service shall be determined by the length of their continuous service on a post in the service. Provided that where there are different cadres in the service, the seniority shall be determined separately for each cadre. Moreover, the benefit of seniority was given to them on 15.6.74 whereas the service rules came into effect from 14.6.74 the date of notification issued by the Government. Hence, the decision of the Chairman dt.15.6.74 was contrary to Rule 12 of the Service Rules. The cadre of Clerk/A.R. was a different than that of the Vigilance Supervisors and when the service rules came into being the posts of Vigilance Supervisors and when the service rules came into being the posts of Vigilance Supervisors had already been abolished. Therefore, the benefit of past service rendered on the post of Vigilance Supervisor cannot be given towards seniority pay etc. being contrary to Rule 12 of the Service Rule 1974. Moreover, in the case of Assistants of the Board of the head office cadre the benefit already given to S/Sh.Duli Chand, Siri Krishan, Sunder Singh etc. of the Vigilance Cell had already been withdrawn, on the basis of rule 12 and their seniority and confirmation position has been brought down through a separate order dt.6.6.89. Therefore, I do not find any merit in the contention of the officials. I, therefore, confirm the notices for withdrawing the benefit of past service to bring down their position in the seniority intimated vide memo No.81059-85 dated 11.12.79.” 21. Sequelly, Rule 12 of Service Rules deals with the seniority of the members of the service, which postulates that seniority, inter se of members of the Service shall be determined by the length of their continuous service on a post in the Service; provided that where there are different cadres in the Service, the seniority shall be determined separately for each cadre. 22. As indicated earlier, since the petitioner was offered fresh appointment, vide letter (Annexure P3), after the proposal of terminating his services, so, he cannot possibly be termed to be a member of the service on the post in the service. As the Vigilance Cell of the respondent-Board was abolished, therefore, the petitioner cannot claim the benefit of his previous service on the basis of alleged office order dated 15.6.1974 (Annexure P5) issued by the Civil Writ Petition No.7435 of 1991 8 Secretary without any authorization, one day after the commencement of the Service Rules, which came into force on 14.6.1974, that too against the statutory rules of the respondent-Board. Thus, the petitioner is not entitled to any benefit of his previous service on the analogy of the law laid down by the Hon'ble Apex Court in cases State of West Bengal and others v. Banibrata Ghosh and others (2009) 3 Supreme Court Cases 250 and C.Balachandran and others v. State of Kerala and others (2009) 3 Supreme Court Cases 179. Therefore, I am of the view that the Chief Administrator of the respondent-Board has rightly corrected the seniority on the basis of continuous service on the post in service. Since the petitioner was not a member of service prior to his fresh appointment, vide letter (Annexure P3), so, he cannot claim the benefit of his previous service, which is against the rules. 23. In so far as the discrimination part is concerned, the petitioner has vaguely pleaded that A.K.Chhibber and Hardev Singh Hooda, similarly situated persons, were granted the same benefit of their past service. This fact has been stoutly denied by the respondent-Board in its written statement and it was specifically explained in reply to ground No.(vii) that S/Shri A.K.Chhiber and H.S.Hooda were given the benefit of their military service and moreover H.S.Hooda was no more in service of the Board. Once the benefit of past Army service was granted to A.K.Chhibber and H.S.Hooda, in that eventuality, the plea of discrimination pressed into service by the petitioner is unfounded in this connection. 24. As discussed hereinabove, since the benefit of past service of abolished organization, was illegally granted to the petitioner against the statutory Service Rules, so, it was rectified by the authority, after issuing show cause notice to the petitioner, by means of impugned order (Annexure P10). The competent authority is always empowered to correct such mistakes after issuing show cause notice to the petitioner. Reliance in this regard can be placed on the judgment of Civil Writ Petition No.7435 of 1991 9 Hon'ble Supreme Court in case Union of India and another v. Narendra Singh (2008) 2 Supreme Court Cases 750, wherein it was ruled (para 32) as under:- “It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K.Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.” The ratio of law laid down in the aforesaid judgment “mutatis mutandis” is applicable to the present controversy and is the complete answer to the problem in hand. 25. In this manner, having considered and appreciated the material on record in the right perspective, the authority below has recorded the valid reasons in the impugned order (Annexure P10). Such impugned order containing valid reasons and in consonance with the service rules cannot possibly be interfered with, while exercising the extraordinary writ jurisdiction of this Court, unless and until, the same is illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner in the impugned order, so as to take a contrary view in this behalf. 26. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 27. In the light of the aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed with costs in the obtaining circumstances of the case. (Mehinder Singh Sullar) 16.2.2011 Judge AS Whether to be referred to reporter? Yes/No