IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 928 of 2011 (O&M) Date of Decision: June 1, 2011 Amar Partap Singh Virk and another ...Appellants Versus G.S. Ghuman and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Gurminder Singh, Advocate, for the appellants. Mr. D.S. Patwalia, Advocate, for respondent No. 1. Mr. R.S. Khosla, Advocate, for respondent No. 3. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against an interlocutory order dated 4.5.2011, passed by the learned Single Judge. According to the interim order the contention raised by the writ petitioner-respondent No. 1 has been noticed which is to the effect that at the time of recruitment the writ petitioner was higher in merit as prepared by the Punjab Public Service Commission (for brevity, 'the Commission') in comparison to the appellants and others. Therefore, the position regarding merit so prepared by the Commission could not be abruptly changed when the writ petitioner-respondent No. 1 has become entitled to be L.P.A. No. 928 of 2011 (O&M) considered for the purpose of induction into Indian Administrative Service (IAS). Feeling aggrieved by the aforesaid interim order the appellants have approached this Court. 2. Few facts may first be noticed. The writ petitioner- respondent No. 1 as well as the appellants were candidate for selection to Punjab Civil Services (Executive Branch) and participated in the selection process held in the year 1990. A total number of 26 posts of PCS (Executive Branch) were filled up in the process of selection through Register-'B' meant for direct recruits under the Punjab Civil Service (Executive Branch) (Class-I) Rules, 1976 (for brevity, 'the Rules'). Out of these posts, 15 were meant for General Category; 6 posts were reserved for Scheduled Caste category; 4 were reserved for Ex-serviceman category and 1 for Freedom Fighter category. All the posts were filled up by a common selection process. Accordingly, orders dated 2.12.1992 were issued by the respondent State of Punjab for appointment of candidates to the PCS (Executive Branch) under the provisions of Rule 14 of the Rules (P-2). 3. The appellants have claimed that inter se seniority of the persons appointed to PCS (Executive Branch) was not finalised for the reason that huge litigation is pending in regard to the criteria for finalisation of seniority. In that regard reliance has been placed on the gradation list issued in October 2010. It has also been claimed that in the judgments of Hon'ble the Supreme Court rendered in the case of Ajit Singh Janjua-I v. State of Punjab, JT 1996 (2) SC 727 and Ajit Singh Janjua-II v. State of Punjab, (1999) 7 SCC 209, the law laid down is that roster points are not to be considered as seniority points and instructions dated 22.10.1999 and 23.10.2000 for 2 L.P.A. No. 928 of 2011 (O&M) fixation of seniority as per the combined merit determined by the Commission have been issued (A-1 & A-2). 4. We have heard learned counsel for the parties at considerable length. It has come on record that on 2.12.1992 (P-1), the Personnel and Administrative Reforms Department gave final shape to the allocation of the candidates selected on the post of PCS (Executive Branch) and other Allied Services Examination-1990. In the list concerning the General category, names of 15 candidates has been mentioned and the name of the writ petitioner-respondent No. 1 figures at Sr. No. 7 and that of the appellants at Sr. Nos. 22 and 23. It is pertinent to notice that against the names of the appellants the category of Ex-serviceman has been specifically mentioned as they were allocated against the posts reserved for Ex- serviceman category. Likewise, another order was issued on 2.12.1992 (P-2) itself by the State Government entering the names of all the 15 candidates in the list of General category and also adding the names of other candidates belonging to either Schedule Caste/Ex-serviceman category. Again the name of the writ petitioner-respondent No. 1 figures at Sr. No. 7 and that of the appellants at Sr. Nos. 22 and 23. In para 2 of the said order it has been stipulated that the appointments have been made subject to the condition of adjustment with regard to eligibility of a candidate and their inter se seniority belonging to the same category. According to Rule 21 of the Rules, seniority of the officers has to be determined in accordance with the order of their appointment. The aforesaid rule is required to be read with Rule 18 and it transpires that the inter se seniority has to be fixed in accordance with the 3 L.P.A. No. 928 of 2011 (O&M) order of appointment by applying the roster provided under Rule 18 and not on the basis of the date of appointment. 5. The aforesaid Rules came up for consideration of Hon'ble the Supreme Court in the case of Arvinder Singh Bains v. State of Punjab, (2006) 6 SCC 673. In para 58 of the judgment their Lordships' of Hon'ble the Supreme Court has clarified that the order of appointment must be deemed to be the order prescribed under Rule 18 of the Rules and the action of the State in determining the seniority list without reference to the order consequential to appointment was set aside. Rules 18 and 21 of the Rules are reproduced hereunder:- "18. Appointment of accepted candidates to the service. The Government shall make appointments to the Service in pursuance of rule 7 from amongst the candidates entered on the various Registers in a slab of 100 vacancies as follows:- (i) the first vacancy and thereafter every alternative vacancy shall be filled from amongst candidates borne on Register 'B'. (ii) the 2nd, 8th, 14th, 20th, 26th, 32nd, 38th, 44th, 50th, 56th, 62nd, 68th, 74th, 80th, 86th, 92nd, 96th and 100th vacancy shall be filled from amongst the candidates borne on Register A-I; (iii) the 4th, 10th, 16th, 22nd, 28th, 34th, 40th, 46th, 52nd, 58th, 64th, 70th, 76th, 82nd, 88th and 98th vacancy shall be filled from amongst candidates borne on Register A-II. 4 L.P.A. No. 928 of 2011 (O&M) (iv) The 12th, 30th, 42nd, 54th, 66th, 78th and 90th vacancy shall be filled from amongst the Excise and Taxation Officers accepted as candidates on Register A- III; (v) The 18th, 36th, 60th and 84th vacancy shall be filled from amongst the District Development and Panchayat Officers or Block Development and Panchayat Officers accepted as candidates on Register A-III; and (vi) The 6th, 24th, 48th, 72nd and 94th vacancy shall be filled from amongst the candidates on Register 'C':" "21. Seniority of the members of the Service.- The seniority of officers appointed to the Service shall be determined in accordance with the order of their appointment to the Service; provided that (a) if the order of appointment of any candidate is cancelled under the provisions of rule 20 and such candidate is subsequently appointed to the Service, the order of appointment for the purpose of this rule shall be determined by the date of such subsequent appointment; (b) if any officer appointed to the Service fails to qualify himself for substantive permanent appointment within the prescribed period of probation, the Government may determine whether the date of his appointment for purpose of this rule shall be postponed by a period not exceeding the period by which such 5 L.P.A. No. 928 of 2011 (O&M) officer's substantive permanent appointment is delayed beyond the prescribed period of probation; (c) the persons appointed as a result of earlier selection from a Register shall be senior to those appointed as a result of subsequent selection from the same Register." 6. The aforesaid Rules have been interpreted in Arvinder Singh Bains's case (supra) and in paras 47 to 49 and para 58 following observations have been made: "47. It may be pertinent to say that legislature has used the term "date" where there was clear intention to refer to "date". Had there been an intention of the legislature to say that the seniority shall be determined from the date of appointment/order they would have used the term "date" in Rule 21 as has been done in Rule 20. Even in Rule 21 proviso (a) the term 'date' has been used in an eventuality where the legislature has an intention to make the 'date' relevant. 48. Had the date of appointment been the sole criterion for fixing seniority there would have been no need for proviso (a) to Rule 21 as any appointment after cancellation of original appointment will always be treated as original/first appointment. 49. If the term "in accordance with the order of their appointment" in Rule 21 actually means "in accordance with the date of their appointment" there is no need for proviso (a) to Rule 21." xxx xxx xxx xxx 6 L.P.A. No. 928 of 2011 (O&M) "58. ...... The mandate of the roster is that unless his appointment in the order prescribed under Rule 18, the appointment is invalid. Consequently, the order of appointment must be deemed to be the order prescribed in Rule 18 of the 1976 Rules. The action of the respondents in determining the seniority list without reference to the order consequence of appointment is wholly unsustainable in law and is liable to be set aside. This apart, the term order of appointment is also being mis-interpreted by the authorities and is being confined to individual order of appointments issued to individual members of service whereas the term of appointment refers only to the order/consequence prescribed under Rule 18. Further, from a perusal of Rule 21 it would be manifestly clear that if it is to be interpreted in the manner in which it is presently being done, namely, to determine the seniority on the basis of the order of appointment i.e. the date on which the order of appointment is issued, the same must necessarily relate to inter se seniority of individual sources of recruitment. This procedure was adopted in preparing the seniority list confined to Register-B. Action of the authorities in determining seniority of all the members of the PCS (EB) with reference to their date of appointment and not with reference to the order by which they were required to be appointed under Rule 18 is mis-interpretation of Rule 21 of 1976 Rules and is liable to be set aside." (emphasis added) 7 L.P.A. No. 928 of 2011 (O&M) it is, thus, evident that expression 'in accordance with the order of their appointment' has to be interpreted to mean the order of merit determined by the Commission. If it is viewed from that point of view the appellants have no pria facie case. 7. When we apply the principle laid down in the aforesaid judgment we find that final shape was given to the allocation of the candidates selected on the basis of PCS (Executive Branch) examination in the order dated 2.12.1992, the same position was maintained when the names of the candidates were entered and accepted in Register-'B' in terms of the provisions of Rule 14 of the Rules. We are of the view that this seniority position has continued to remain in existence for long years and it cannot be abruptly permitted to be disturbed merely because the writ petitioner- respondent No. 1 is likely to be considered for induction in IAS. 8. We are further of the view that if the appellants were more meritorious than the writ petitioner-respondent No. 1 then certainly they would have stolen march over him and would have consumed the General category post. However, they consumed the quota post reserved for Ex-serviceman category and, therefore, they were not more meritorious than the writ petitioner-respondent No. 1, as per the view expressed by the Constitution Bench of Hon'ble the Supreme Court in the case of R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745. 9. With regard to the argument of Mr. Gurminder Singh, learned counsel for the appellants that the roaster points are not to be treated as seniority points as per the judgment in Ajit Singh Janjua's case (supra), it is suffice to say that the appellants before us belongs to the Ex-serviceman category. The judgment in Ajit 8 L.P.A. No. 928 of 2011 (O&M) Singh Janjua's case (supra) has no application because the judgment relates to the roster point reserved for candidates belonging to the Scheduled Caste category and instructions concerning Scheduled Caste category were in issue. Therefore, we are of the view that the interim order passed by the learned Single Judge does not suffer from any legal infirmity warranting interference of this Court. The appeal does not merit admission and lacks substance. Accordingly, the same is dismissed. 10. Before parting we deem it necessary to caution the learned Single Judge that the observations made in this order are not an expression of opinion on the merit of the controversy. These are prima facie and first blush impression. The learned Single Judge, therefore, shall proceed to decide the main petition without being influenced by any of the observations. (M.M. KUMAR) JUDGE (GURDEV SINGH) June 1, 2011 JUDGE Pkapoor 9