SBCWP No.6511/94. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.6511/1994. Babulal Rangrej Vs. Shekhawati Gramin Bank Head Office Sikar & Ors. Date of order : November 12, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Kinshuk Jain for the petitioner. Shri R.S. Mehta for the respondents. **** BY THE COURT :- Heard learned counsel for the parties. 2) This writ petition has been filed by the petitioner aggrieved by the action of the respondents assigning him seniority below those who were lower than him in merit list. Petitioner applied for appointment on the post of Manager pursuant to advertisement issued by the respondents. In the merit list which was prepared in such recruitment process, name of the petitioner was found place at Sr.No.30. Appointment order of the petitioner was issued on 20/3/1978 (Ann.1). Appointment order required the petitioner to submit his acceptance within 7 days. SBCWP No.6511/94. 2 Petitioner accepted the appointment but requested the authorities to extend his joining period till 20/11/1978. Representation submitted by the petitioner in this respect on 21/3/1978 was accepted by the respondents vide their order dated 28/3/1978 advising him to report for duty on his cost within 7 days. Petitioner thereupon sent a specific application to the respondents on 3/4/1978 in which reasons were given for not joining within 7 days of issuance of appointment order. It was stated that he was a permanent employee of the State Government and would be completing 20 years of qualifying service on 18/11/1978 making him eligible for voluntary retirement and the consequential benefits and if he joins before that date, he will be put to loss of gratuity and pension and therefore he requested that he should be permitted to report the respondent-Bank on 20/11/1978. Case of the petitioner was placed before the Board of Directors of the respondent-Bank which vide its resolution allowed the petitioner to join by 20/11/1978. Averments to this effect have been made in para 3 of the writ petition which the respondents have not denied. Subsequently however, when petitioner did not join duties on 20/11/1978 with the respondents, respondents in their seniority list dated 13/4/1982 assigned seniority to the petitioner at Sr.No.24 over and above respondent SBCWP No.6511/94. 3 No.25. This very position was reiterated in subsequent seniority list issued on 30/6/1984. Respondents thereaftrer on 24/11/1994 issued a provisional seniority list in which name of the petitioner was shown at Sr.No.28A whereby petitioner was permitted to represent against such provisional seniority list. Petitioner protested against his placing at Sr.No.28A in the said seniority list vide representation dated 28/11/1994. Representation of the petitioner was rejected vide order dated 1/12/1994. Ultimately, final seniority list was issued by the respondents on 22/4/1996 reiterating the same position. 3) I have given my anxious consideration to the arguments aforesaid and perused the material on record. 4) Shri Kinshuk Jain, learned counsel for the petitioner has argued that respondents have wrongly assigned seniority of the petitioner below respondents No.3 and 4 as all those persons had appeared lower in merit than the petitioner in the select list. Reference in this connection is made to the select list Schedule-B. Learned counsel for the petitioner referring to Regulation 13 of the Shekhawati Gramin Bank (Staff) Service Regulations, 1981 (for short, the "Regulations of 1981") argued that the seniority on the post of Manager was required to be determined according to sub-clause (2) SBCWP No.6511/94. 4 of Rule 6 thereof. It was argued that Ministry of Finance has clarified vide letter dated 6/6/1981 wherein, it has been specifically stated that an official who has been ranked higher in merit shall be treated senior to those who are placed lower in merit irrespective of their date of joining. In fact, petitioner on the basis of such seniority list was promoted to Senior Manager on 13/8/1987 and since then, he had been regularly working as Senior Manager. Certain persons challenged the selection in question on the ground that guidelines isused by the NABARD has not been followed and on that basis the selection was quashed and then necessity of fresh selection on the post of Senior Manager arose. In the result of fresh selection, however, name of the petitioner was shown below his juniors, respondents No.3 and 4. Petitioner challenged the selection by filing writ petition wherein respondents No.3 and 4 took a plea for the first time that petitioner should be treated as junior to them. Writ petition nevertheless was allowed and special appeal filed by respondents No.3 and 4 before the Division Bench was dismissed by the Division Bench. Even then, the official respondents in the seniority list dated 6/4/1992 shown name of the petitioner in the list of Senior Managers below his juniors and at that stage, they challenged the seniority. It was argued that SBCWP No.6511/94. 5 according to Rule 13(2), the inter-se seniority of officers or employees directly recruited in a batch to any grade or scale shall be reckoned with reference to the rank allotted to them at the time of such recruitment. Learned counsel for the petitioner therefore argued that action of the respondents in treating respondents No.3 to 5 as senior to the petitioner was therefore contrary to Regulations of 1981 therefore, the impugned-orders dated 24/11/1994 and 1/12/1994 are liable to be quashed and set-aside and the respondents be directed to place the name of the petitioner in the final seniority list immediately below the name of Shri Hukum Singh Shekhawat who was shown in the seniority list dated 6/4/1992. 5) Shri R.S. Mehta, learned counsel for the respondents opposed the writ petition and argued that even though the petitioner was selected in the same recruitment process and was placed higher in merit over and above respondents No.3 to 5 but it was then on his own request, joining time of the petitioner was extended. He had the lien with the State Government where he wanted to take benefit of voluntary retirement and therefore petitioner cannot be permitted to avail of benefits by both the hands. Learned counsel argued that in such like case, Regulation 13(1)(a) of the Regulations of 1981 is required to be appreciated which provides that SBCWP No.6511/94. 6 seniority of an officer or employee of the Bank in a grade or scale shall be reckoned with reference to the date of his appointment in that grade or scale. Since in the present case, petitioner joined belatedly after six months therefrom, therefore he was rightly placed below respondents No.3 to 5. It was argued that bank extended the joining time of the petitioner on his risk and therefore the joining has to be treated the date of appointment of the petitioner and accordingly, Regulation 13(1)(a) of Regulations, 1981 is required to be considered. Learned counsel also argued that petitioner has since retired on attaining the age of superannuation on 31/10/2000, therefore there can now be no question of assigning any seniority to the petitioner higher than respondents No.3 to 5. 6) I have given my anxious consideration to the arguments aforesaid and perused the material on record. 7) The facts which are not in dispute and cannot be disputed are that petitioner and respondents No.3 to 5 were all selected in same recruitment process and that while petitioner was placed at Sr.No.30 in the seniority list prepared pursuant thereto, respondents No.3 to 5 were placed below him. Further, petitioner initially submitted an application to the respondents for extension of his joining time of 31/3/1978 which was required and SBCWP No.6511/94. 7 respondents required him on 28/3/1978 to join within seven days but thereafter petitioner made a specific application to the respondents on 3/4/1978 giving reasons therein that petitioner was due to complete 20 years of qualifying service on 18/11/1978 which shall make him eligible for voluntary retirement under the Regional Rural Bank Act, 1976. This would enable him to get the pension and gratuity and therefore request was made that case of the petitioner to permit him to join on 20/11/1978, may be considered. This request of the petitioner was considered by the Board of Directors of the respondent-Bank which by its Resolution granted the request and this is how petitioner was allowed joining late even on 20/11/1978. Petitioner in para 3 of the writ petition has asserted these facts which have specifically not been denied by the respondents in their reply to the writ petition, especially, the respondent-Bank. Respondent-Bank while extending the joining time of the petitioner must enunciate a condition that delayed joining of the petitioner would have the effect in giving him seniority from the date of such joining and that in his case Regulation 13(2) of the Regulations of 1981, for that reason, shall be departed from. Contention of the learned counsel for the respondents that seniority of the petitioner should have to be determined with SBCWP No.6511/94. 8 reference to Regulation 13(1)(a) of Regulations of 1981, cannot be accepted because Regulation 13(1)(a) thereof has to be read in its entirety. Regulation 13 (1)(a) merely provides a seniority of an officer in the bank in a grade or scale which shall be reckoned from the date of his appointment in that grade or scale. It cannot be disputed that appointment of the petitioner was made by the same order by which respondents No.3 to 5 were appointed. Here now is only question of joining time and in the earlier case, they did not deny time of seven days and/or in some cases even the time of joining of the candidate was extended however, in the case of the petitioner extention of joining time was owing to his peculiar situation. Petitioner did not hide anything while explaining his request of joining time. The Board of Directors taken into consideration and agreed of the request of the petitioner thereby, extending joining time upto 20/11/1978. Though, in the initial orders, the respondents assured the petitioner to treat him senior to respondents No.3 to 5 as Senior Manager, but subsequent when fresh selection was made pursuant to the order of this Court, petititoner was not selected which the petitioner challenged his non- selection wherein, respondents No.3 and 4 specifically raised argument for the first time that petitioner should be treated as junior to them SBCWP No.6511/94. 9 because he joined late. The writ petition nevertheless was allowed and subsequently judgment of the learned Single Bench was also upheld by the Division Bench. Argument that joining of the petitioner could not be treated to be as a date he would be deemed appointed and on that basis Regulation 13(2) should be _____ to grant him seniority from the date of joining, cannot therefore be accepted. Rule 13(2) specifically provided that inter-se seniority of officers or employees directly recruited in a batch to any grade or scale shall be reckoned with reference to the rank allotted to them at the time of such recruitment. This was the clarification so made even by the Ministry of Finance as what is asserted by the petitioner which is evident from the scheme/order dated 6/6/1981 (in para 5 of writ petition). In the said letter/order/scheme which was addressed to the Chairman South Malabar, Gramin Bank Mallappuram, the Ministry of Finance, Government of India has clarified the position in regard to Regulation 13 of Regulations of 1981. 8) Writ petition is accordingly allowed. The impugned-orders dated 24/11/1994, 1/12/1994 and seniority list dated 22/4/1996 are declared unconstitutional and hence same are quashed and set- aside. Consequently, official respondents are directed to treat the petitioner senior than respondents No.3 to 5. Petitioner is held entitled to SBCWP No.6511/94. 10 receive all consequential benefits w.e.f. 6/4/1992 together with interest @6% p.a. Compliance of the judgment shall be made within a period of three months from the date, its copy is supplied to the respondents. (MOHAMMAD RAFIQ), J. anil