•IN ! THE HISH'.GQHH'r OF 'IiaSH^a. ERJSDBSr&.aS* JABAtPUR: ..M.P.KG.. <-;o-/.^ -. OB,1S89;. ' . - •1' t *1I-i?la?oBBe &?WIMi -^-s-^ ;"tr E'.efclttoner ; Hlrama&i. Shiikla -' .'::.'.^ • •'•' •1-' :. ;• —•?'3a :S/o .Sff.iKaghuaafcte 'gra.saa-^ShuKaSa,'^,',::-!^ .-'; ftgea-::,:atetEffc 38- YeaX':p,.BCaas&': an's@er',;,;3 Brans.&s.;:.B.eItara, Tshstl 'affd. '^ : ^ ';/'' ,)'?j'jg| D-ig't:Elcte..6BilaspUE WP) • •': ^- . :. % . '-•^Q i^"^ •^s v'ersiis '•:^ •'••^. ,WB:C]-iai.r!tf^~~^::^v: .'^•..•^•^^^^^^^^^^^ . •:; , ,^| ^/• ;Responaeats . -S" :y • BllagFur^'alpur:,KgSgep^^'-%^ffi&-p..^y%J : .''Sank^ Bilaspw. :'',.• L;/'";:.:-'^-:.-: ::..: •'.;'l;'':'ai ys^' to -^ /A.p®a: ..'•''.Y ''-, '' :"1:.1-^ 38 .'if B.T.^cgl&tear; K^tta&:Man-ae(,eE^^,,:.^:'';yg|g '' 'C/o::: S;taff 2'£a£a£ng:. 6eht;E@;:\ ^iSi^SS - S.B.i,,.:.'ifccmal .SehcoI'Road, : ':'7'.:';.:, ':.^^ ' Bllaspar.'. - . 1,':'', , :,,_\:^ 1;,. 3.. Shri;S^K.ShFl.vast;av'a, , -:. •;• ., SaitpE/ftrea; HaBa.gei?,,'-1,. :: ':';.;''1':; •:'s~^ •.e/^)^s3Ei5EM< Bli.i.aspur-Ral.pur ReyKetaTi^a^M GxasitinBsirSs, BUasEttF.',- :• ..^ . . S, S'iart'.'D.K,,.;S;Qai.,.,^.'; •"• -1-A1' . Ai?e'a/S,3nl.oEMana@'er:, ' : ^,'' • .; S/o: Bl.laspur-R.ai.sur; Kshete^lya ,^ 'Grarftln Bank, BLlaspur.' .,•:.., '. 'SQM :3B ESTI3'I^,3^S^;:^%3%B,;1^6/227..©F"'PHB toi©®&ypaa%ii»;i2N23:s^;,^:-;:-^;/':.,-.'-:'' ^iM -^f fa'%;:^i ?,t-i: w0lll' lllt t^ltf' sl^ •s^ s isiaiaaaaiBBte^ ^\ AF^ HSGH COURT OF CHHATTISGARH AT BILASPUR Writ Petitiou No, 3942 of 1989 Hirainatii Shukla @stS3SS"SSS 6"K'e:W^-!^-iySv Versus Respondents The Chairaian BBaspur-Raipur Kshetriya Granun Bauk,Bilaspur aad others Post for order on 17 Noveuiber, 2006 Sd/- Satish K. Agaihoi'ri Judge tiE l^^^'^l^^^^ ^?'H-^'^^^^ t?]-~fi:iSj5!EgI^B« 1^?^^^ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 3942 of 1989 Petitioner Hiraiaani Shukla Versus Respondents The Chau-m.an Bilaspur-Raipur Ksbetriya Gramia Baak.Bilaspur aad others Single Bencii: Hon'ble Mr. Justice Satisli K. Agnihotri. Shri. Saajay K. Agi^wal, coitasel for the Petitioner. Shri P.K. Bhaduri, counsel for the Respondent No. 1. Shri B.P. Gupta, counselfor fhe Respoadent No. 2. None appears for tlie respondeuts No. 3 to 6. ORDER ( ( 7^0vember> 2006) In fhe present writ petttion, the petitioner has sought for his proper placenient above the respoadent No. 2 in the seniorily U.st aiid subaequent proniottons tliereafter to various posts on fhe basis of seniorily Ust. The iindisputed facts in iiutshell are that, by order dated 21.11.1977 (Annexure/A), fhie petitioner was appointed as Bi^nch Manager, wherein it was provided that the appointiaeat would coiue iuto effect fiiom. the date the petitiDner subnutted his joining report in fhe concenied brau.ch. Thereupon the order dated 1.12.1977 (Aniiexure/B) was issued whereby the petitiouer was directed to join. at Brauch Jairasi Nagar. It was reiterated that fhe appoiatuient would coiae into effect froia the lll-.illiHtt: :Ii2!if?^;;;S=SS':SB date of joiniug of the petitioner in die conceEued branch. The petitiouer accordingly joined at Jairani Nagar Branch of the respondent-Baiik on 6.12.1977. lia' ^!-S(^.^^. 3. SimflaT oider dated 4.11.1977 (Aniiexure R/2-B) was passed iu case of fhe i-espondent No. 2 whereia the similar condition that the appointnient would coiue into effect froin fhe date fhe nespondent No. 2 wozdd submit his joining report, was stated iu the order. 4. The letter dated 6. 12.1977 (Annexure R-2/C) was issued to the respondent No. 2 whereby the respoudent No. 2 was directed to joiu Graaiyari Bianch with fhe saine condition. Adniittedly, the respondent No. 2 reported for duty at Gauiyari Branch on 9.12.1977. The respondent-Bank, by oi-der dated 25.2.1982 (Aunexure/E), confinned the petitioner with efifect froia 12.12.1979 aud the respondent No. 2 was confirmed with effect from 17.12.1979. 5. The seniority list dated 8.1.1987 (Anuexure/H) was circulated whereio. the respoudeut No. 2 fouiid place at serial No. l and the petitioner found place at serial No. 14. Ofher respondents nainely Shri S.K. Shi-ivastava was placed at serial No. 2, who was later ou suspended, respondent No. 4 Shri D.K. Soui was placed at serial No. 10, respoadent No. 5 was placed at serial No. 4 aad respoudent No. 6 was placed at serial No. 13. 6. Beiug aggrieved, tlie petitioner filed this petition on 14.6.1989 seeldng a writ/direction to the respondent No. 1 to assign the KwM^9- :..*!,i-!-,i<"sa8a' coi-rect placenieut of tlie pctitioner above the respondent No. 2, who is junior to the petitioner, in the seuiority list. It was further prayed fhat the petitioiier be treated as proinoted to the post ofArea Maaager/Senior Manager with effect fix>m. 30.7.87 and ftie subsequent proiuotions fhereafiEr. 7. Shri Saajay K. Agrawal, leamed couusel appearing for the petitioner would subinit that during fhe period fhe petitioner aud respoudents No. 12 to 6 were appointed, theiTe was no rules, regulations, circulars, notificatioiis or executive iastructions to determine inter-se serdority of the Branch Managers (Officers). Thus, the seniority of the petitioner ought to have been ^ove-med on the principle of seniority on the basis of length of service fixsm. the date ofappointaient. 8. Adiaittedly, the appointinent orders issued to tlie petitioner and fhe respondeut No. 2 to 6 clearly provide that the appoiatments would coine in.to effect, froin ffae date the caadidate subiuitted Iiis joiniug report in the concemed biaach. The petitioner had submitted his joining report on 6.12.1977 whereas, the respondent No. 2 had submitted his jouung report on 9. 12.1977 aud other respondents subuiitted their joiniag reports after the petition.er had joiued the concenied branch. The petitioner was confinned on 12.12.1979 priorto the date ofcoufirmation ofthe respondeu.ts. Leamed counsel appearing for the petitioner further subuiits ttiat prior seniorily be assigued to fhe petitioner above fhe respondent No. 2 wifh consequeutial beaefit of proBiDtions. fcl\'. •-iV.': Bl EKf-' ISi fe^ Blin IWS 1SS8 Bga KM m Ks L U?.li-.3<^;yE;_,''<?;^i;;L:yY^As ^•^^^^s'^^;^i-^?^^^ ^^'E^^S^^^.S^S^si^S^^^^ ^S^^^^S^K::&^^:^'^S^^^ -~^^^ 9. Shri P.K. Bhaduri, leamed couusel appearing for fhe respondent No. 1 would subniit, per contra., that ia the select/iuerit list prepaned on 20.12.1977 (Aniiexure R-2/A), the respoudeut No. 2 was placed at serial No. 2 and the petitiouer was placed at serial No. 25, wheneiu it was clearly stated that the orders of appointiueut was issued ia accordaace with the select/inerit list. Thus, the seuiority list was prepared on the basis of select/inerit list and there was no infimuty ia the seniority list. The date of appoiataient is the date of joining in fhe conceraed bianch and as such the placeinent in. the select/iuerit list is relevaut for nssigning the seniority. 10. ' Shri B.P. Gupta, learued counsel appearing for the respondent No. 2 would adopt the submissions made by leamed counsel appeaiing for the respoudent No. l. 11. The respondeuts No. 3 to 6, despite notice, did not choose to appear ia the luattEr. 12. i have heard leamed counsel for ttte parties and pei-used the records appended to the petition as well as to flie retums fited by the respondents No. 1 and 2, 13. It is clearly evident that the appointaient ordei^ issued in favour of the petitioner and the respondent No. 2 clearly provide that the appointinent woiild coine iuto efFect, with effect froiu fh.e date of fhe caudidates' subuutting joining report in the concenied braach. The relevaat portion of the appoiutuieat ord.er i^ads, as under :- Kl il!t ? T =? i B'i, M: "qft ^Tqqit 'd^^'W ^RT W^? ^ ^R sm ^ff q^ qft ^^ft^^T gf^ *T<t g'WKSK tF? ^BT ^PTfpPT ^" ^ I ^S^ '•HTST ^t^T4 ^q 5 4 ^leriRsl<rt +l<lutld tt^tf ^t', i^w^ anq<lft aff^Tpft ^^cT ^t uH ^ 1 3Sm^t l^l^cT WT wra ^ g»Tra?ftcf ?Nt ^? a»Tq ^rater ^mar ^' ^qf^ ^'Tf" i" 14. The date ofjouiing ofthe petitioner and fhe respondeut No. 2 is not in dispute as aforeuientioned. Thus, on bare readiug of the appointiueut onlei-s looking into ttie date of joining ia tlie coucemed bianch., it is apparent that the fcngth of service of tiie petitioner is luoie fhan the leugth of service of the respondent No. 2. The so-caUed select/nierit Ust has no relevance, as in the appointineiit orders fasued pui-suaat to the select list, it was clearly piovided that fhe appouitme&t would coine iuto effect on joiuiug fhe concenied ofEce (breinch). It is also uot in dispute that BILASPUR RAIPUR KSHETRIYA QRAMIN BANK Staff Service Regulatioas, 1980, wherein ReguJation 13 (2) Chapter 13 pnavided fhat the inter-se seniorily of officers or eiaployees directly recruited iu a batch to auy grade or scale shafl be reckoned wifh reference to fhe raiik atlotted to fhein at the ttme of such. recruitinent, caine uito force on Ist July, 1980. These regulations cannot be niade retrospectively applicable to the appointment of the petitioner and fhe respondent No. 2 to 6. It is also aduiitted that fliere was no rules, icgulations, cii-culars, executive uistructioiis, notifications or any other nieuao govenuag inter-se seniority of the oS-cera in existence at the lelevaut tuae. In that event, the ;eneral principle of law of fhe seniorily would be appUcable in the case in haad. F' 15. In the case of Asitok Gulati and others Vs. B.S. Jaia and others1, fh.e Supreiue Court observed ia para 22, as under :- "22. According to tfae accepted can.ons of service jurisprudeuce, seniority of a persoa appointed inust be reckoned frona. the date he becoines a member of ttie service. The date from which senionty is to be reckoned may be kud down by rules or instructions (a) on the basis of the date of appointinent (b) on the basis of confimiatiou (c) on the basis ofreguladsation ofservice (dj on ftiebasis oflength ofservice, or (e) on aay other reasonable basis. It is weU settled that an ad hoc or fortuitous apponitiuent on a teiuporary or stop-gap basis caanot be taken iuto accouat for fh.e purpose of seniorily even if the appointee was qualified to hold the post ou a iieguJar basis; as such teinporary tenure faardly counts for senionty ia any system. of service jurisprudence.........." 16. In the case of H.V. Pardasani aad others Vs. Uniou of India aad otiiers2, tlie Suprenie Court observed that ia the.abseuce of aay special provision regulating deterniiuation of seniority, leugtfa of contiauous service iu any particular grade would be the basis for determitung seniority in that giwle. Fiuther in tfae case of Nirmal Kumar Choudhary and others Vs. State of Bifaar and others3, the Suprenie Court observed that it is weU setfted position in 5aw fhiat seniority would ordiuarily depend upoa leugfh. of service subject, of course, to rules holdiag the field. 17. The Supreme Court in the case of K.V. Subba Rao and others Vs. Goverament of Aadhra Pradesh and others4 observed that the legal position is well settfcd fhat th.e State is entitled to 3 i. . s-.-ii.t i . L.El MSSE 7 tlS!slia:-i» prescribe the maniier of computiug inter se seniorily and ui fhe absence ofsuch prescription length. of service is the basis. 18. In fhe case of P. Mohaa Reddy Vs. E.A.A. Charies aad otSiers5, the Supreme Court observed iu para 17, as under :- "17. A conspectus of fhe afoiiesaid decisious of tttis Court would iudicate that eveii fhough an eiaployee cannot claun to have a vested right to have a particular position tu auy grade, but aU. the saine he has the right of liis seniorily beiug deteruuned iu accordaace wifh the Rules which reniained ia force at the tiine wheu. he was borae in fhe Cadre. The question of re-determination of the seuiority iu the cadre on the basis of any amended criteria or Rules would arise only when fh.e aiaeadiaent ia questioii is given a retrospective eifect......" 19. In fhe case of Pssaaod K. Pankaj Vs. State of BiSiar aad others6, the Supreiue Court furftier held tliat iu absence of any statutory provision or rules inade fh.ereunder or under the proviso appended to Article 309 of the Cortstitution of India, it is trite, that ouce ao. uicunibent is appointed to a post accordiiig to rules, his seiiiority has to be couated fi-oin the date of his appoiutuient. 20. Shri P.K. Bhaduri, learued counsel appeariag for the respoadent 'No. 1 has refed ou decisions of fhe Supreiae Court ia the cases of Unton of Indla Vs. H.R. Pataatair and others7, Direct Recruit Ctass 11 Engineering OiBeers' Assoeiatioa Vs. State of MaharashSra and otheis8, Cfaairman, Purl Gramya Aaother Vs. Aaaad Chandra Das aad otfaers9, PiUa aad others Vs. Uaiori of India and otiiers10 E K 83 ^• S R^ aad Bimlesh Tanwar Vs. State of Haryana aad others11 m aU fhe cases cited above. 21, In the case of Uaion of ludia Vs. H.R. Pataa&ar and others (supra), the niain controversy iavolved was whether ofiicers directly recruited through coinpetitive exaTnination woiild becoine senior over the of&cers pronioted froni the State Service, when the year of aUotment was fhe same. The Supreine Court held tiiat the gi-adation Ust m.ust foUow the enuuciation of the appropriate pi-iuciple of seniority by the Govemmeat and no pmiciple of seniority can be implied Ironi tlie iater se seniority fixed in such giadation list. 22. In fhe case of Dteect Recruit CIass I! Bagiueeruxg OfHcers' AssociaSiou Vs. State of Maharashtra and others (supra), the Constituti.onal Bench of the Supreine Court held that where appointaieut was niade in accordaace with rules, fhe seniorily is to be counted fi-oin fh.e date of sucli appoiutiaent aud not from the date of coufu-mation. The dictuia laid down by the Supisuie Court is not appUcable to fhe facts of the histant case as the question of 3aw involved therein was whether the seiiiority has to be icckoued froni the date of confinuation or froiu the date of mitifil appoiataient iu. accoidaace wifh law. 23. In ftie case of Chatrman, Puri Gramya Baak and AaothCT Vs. Anand Chaadta Das and otheis (supra), it is not clear whether . the seuiorily has to be detei'mio.ed on tfae basis ofsoine rules or executive iustriictions. Thus, not relevaat to the facts of the present case. 26. 27. 24. In ffae case of PiUta Sttaram Pati'udu and others Vs. Union of ladia aad others (supra), fhe seiiiority was detenruned on the basis of appoiatiuent according to the rules. 25. In fhe case of Bimlesh Taatrar Vs. State of Haryana and otiiers (supraj, the question under consideration was ia the Ught of the niles available and applicable to the facts of the case. The Supreme Court observed ia. paia 24, as under :- "24. The Rules, therefore, iudisputably lay euaphasis on inerit. It for aU intent and purport excludes fhe appUcability of i-ule of appoiatmeut in terms of roster points". In view of settled position of law as enunciated by the Supreme Court in various decisions ia the case of availabiUty of rules, regulations, executive iastructions or nieinos etc., the uiter se seniority has to be detennuied in accordaace with the statutoiy/executive provisions. In absence of such provisions, fhe inter se seiu.ority has to be detennined on. the basis of leugfh. of service. In the present case, it is adiaitted fact that dui-ing fhe period, the petitioner aad other respondents were appoiated, there was uo rules, regulations, notificatiDns, circulars, executive instructions available and applicable to detenaine inter-se seniority of the of&cers and as such length of service would be fhe criteria for determination of iuter-se seniorily. The appointinent ordeis issued by the respondent No. 1 in fhe piesent case cleariy provide that fhe appoiutineat would come 10 s: 28. 9f iato effect froiu the date ofjoiiung ofthe office concemed. Thus, the petitiouer is adniittedly senior to aU. ofher respondents. For the reasons stated-above, the respondent No. 1 is dii-ected to assigu fhe senionty to the petitioner above fhe respondent No. 2 aud grant consequeutial benefits by re-determining the seuiority flowiug fnoin ffais decision. The writ petition is aUowed to the above extent. No order as to costs. _ - — - -—— ^^•sLL.'.-^l Sd/- Satish K. Asiaihotri Judge K ^ '"•^^^•^^^S^i^k^ »{1986 (Suppj SCC 597$ 3{1988 (Supp) SCC 107) s(AIR2001 SC 1210) 7(AIR,1984 SC 1587) ''{(1994) 6 SCC 301] "{(2003) 5 SCC 604} 2{( 1985) 2 SCC 468} •<{(1988) SCC201} 6{(2004) SCC 723} 3{(1990)2SCC715; "{(1996J8SCC637?