IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 8650 of 1993. Date of Decision : February 08, 2010. Bhagwant Singh son of Shri Dalip Singh resident of Village Hianakalan, Tehsil and District Patiala (died) through legal heirs. ...... Petitioner. Versus. Punjab and Haryana High Court at Chandigarh, through its Registrar, and others ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Shailendra Sharma, Advocate, for the petitioner. Mr. Rajesh Garg, Advocate, for respondent No. 1-High Court. AUGUSTINE GEORGE MASIH, J. (ORAL). The present writ petition has been filed by the petitioner, impugning order dated 26.02.1992 (Annexure-P-6), whereby the petitioner was reverted from the post of Officiating Restorer to Officiating Frash with effect from 05.02.1992 (A.N.) as also order dated 20.10.1992 (Annexure-P- 10), whereby the services of the petitioner as Farash were terminated. Briefly the facts of the case are that the petitioner applied for appointment to the post of Frash with respondent No. 1. On selection, the petitioner was appointed as Frash on 02.05.1988. While he was in service, respondent No. 1/High Court invited applications for filling up available vacancies of Restorer from amongst matriculate employees or possessing any higher qualification, working in the High Court. The petitioner alongwith others, who were eligible, were called for interview on 07.03.1991. The C.W.P. No. 8650 of 1993. -2- applicants were interviewed by the Chief Justice. The petitioner was selected and promoted as Restorer, vide office order dated 25.04.1991 and he was adjusted against leave vacancy. He continued as such till he was reverted alongwith some others from the post of Restorer to the post of Officiating Frash, vide order dated 26.02.1992 (Annexure-P-6) with effect from 05.02.1992 (A.N.). Pursuant to this order, the petitioner continued as Frash with the Establishment of this Court. The petitioner applied for leave on medical grounds and was granted medical leave with effect from 04.03.1992 to 04.04.1992. The petitioner did not join duty nor applied for extension of leave and remained absent from duty with effet from 05.04.1992 to 22.04.1992 and his explanation was sought vide memo dated 25.04.1992. Further extension of leave was sought by the petitioner and alongwith the application he attached medical certificate. A Show Cause Notice dated 24.07.1992 (Annexure-P-8) was issued to the petitioner, wherein an explanation was sought from him with regard to his absence without permission and further for tampering with the medical certificate issued by Mehta Hospital, Nabha, District Patiala, which was enclosed alongwith the application for leave with effect from 23.04.1992 to 23.05.1992. It was further stated that the petitioner had failed to furnish any explanation within stipulated time as per memo dated 30.05.1992, and he continued to remain willfully absent from duty, he was called upon to show cause within fifteen days from the date of receipt of memo as to why one of the minor punishments as enumerated in Rule 35 (1) of the High Court Establishment (Appointment and Conditions of Service) Rules, 1973, may not be imposed upon him. In response to the Show Cause Notice, the petitioner submitted his explanation dated 19.08.1992 (Annexure-P-9) to the Registrar of this Court. He submitted his joining report on 14.08.1992 and on 19.08.1992, despite he C.W.P. No. 8650 of 1993. -3- being present, his presence was not marked. His services were terminated by respondent No. 1, vide order dated 20.10.1992 (Annexure-P-10) from the post of Frash, leading to the filing of the present writ petition, challenging the order dated 26.02.1992 (Annexure-P-6) and order dated 20.10.1992 (Annexure-P- 10). Counsel for the petitioner submits that as per reply filed by respondents, the services of the petitioner as Frash were terminated in order to accommodate Devinder Kumar/respondent No. 3, who was also reverted to the post of Frash from the post of Restorer. He contends that Devinder Kumar/respondent No. 3 was junior to the petitioner as per seniority list (Annexure-P-7) circulated by respondent No. 1. He contends that the petitioner was appointed as Frash on 02.05.1988, whereas Devinder Kumar/respondent No. 3 was appointed on 23.12.1989. The petitioner was promoted as Restorer on 15.03.1991, whereas Devinder Kumar/respondent No. 3 was promoted on 30.05.1991. He on this basis contends that at the time of appointment as Frash and thereafter, promotion as Restorer, the date of appointment of the petitioner was prior to that of Devinder Kumar/respondent No. 3. It is not the case of respondents that the services of the petitioner were terminated as a consequence of departmental proceedings initiated against the petitioner for his willful absence from duty without any leave. He contends that it is a categoric stand of respondent No. 1 in para-13 of the written statement that before final order could be passed in the departmental proceedings, wherein a Show Cause Notice dated 24.07.1992 (Annexure-P-8) was issued, it became necessary to terminate the services of one Frash due to reversion of Devinder Kumar/respondent No. 3. Consequently, the services of the petitioner were not terminated by way of penalty in terms of his appointment. He contends that the basis for terminating the services of the C.W.P. No. 8650 of 1993. -4- petitioner are totally mis-conceived as he was not junior to Devinder Kumar/respondent No. 3, so as to make way on his reversion from the post of Restorer to that of Frash. He, therefore, contends that the order dated 20.10.1992 (Annexure-P-10), passed by respondent No. 1 deserves to be set aside. As regards order dated 26.02.1992 (Annexure-P-6), whereby the petitioner was reverted from the post of Restorer to that of Frash, his contention is that junior persons to the petitioner were retained and allowed to continue as Restorers, while he was reverted to the post of Frash and, therefore, this order also deserves to be set aside. On the other hand, counsel for respondents submits that the termination of services of the petitioner as a Frash with effect from 20.10.1992 was made in terms of his appointment and not by way of punishment. This termination was necessitated in view of the fact that due to abolition of certain posts of Restorer, employees who had been promoted as Restorers and were continuing as such, stood reverted to the post of Frash with effect from 20.10.1992. Since no vacancy of Frash was available to accommodate the petitioner, the services of the petitioner were required to be terminated and accordingly, termination order of his services was passed. He has, however, not been able to controvert the fact that as per seniority list (Annexure-P-7), the petitioner was senior to Devinder Kumar/respondent No. 3 as a Frash as well as Restorer. As regards contention of counsel for the petitioner that persons junior to the petitioner were retained as Restorers, while the petitioner was reverted to the post of Frash, vide order dated 20.02.1992 (Annexure-P-6), he submits that none of the persons junior to the petitioner were retained as Restorers with the abolition of post except the 11 persons promoted alongwith the petitioner, vide order dated C.W.P. No. 8650 of 1993. -5- 25.04.1991, who were all higher in merit to the petitioner. The name of the petitioner figured at Serial No. 13 of the merit list and, therefore, he was rightly reverted by respondent No. 1 to the post of Frash from the post of Restorer. I have heard counsel for the parties and have gone through the records of the case. The petitioner was appointed as a Frash on 02.05.1989. He was promoted as a Restorer, vide order dated 25.04.1991. As per merit list dated 15.03.1991, the name of the petitioner figures at Serial No. 13 as is clear from Annexure-P-2. Devinder Kumar/respondent No. 3 was appointed as Frash on 23.12.1989 and was promoted as Restorer on 30.05.1991. This fact is apparent from the extract of seniority list dated 15.03.1991 of Restorers attached with the writ petition as Annexure-P-7, which has been admitted by respondents. The petitioner was, thus, senior to Devinder Kumar/respondent No. 3 as Frash as also on the post of Restorer. Since the petitioner was senior to Devinder Kumar/respondent No. 3, contention of respondent No. 1/High Court that the services of the petitioner as Frash were terminated to make way for Devinder Kumar/respondent No. 3 consequent upon his reversion to the post of Frash from the post of Restorer with effect from 20.10.1992, cannot be accepted. The contention of respondent No. 1/High Court is that on 13.03.1991, 11 posts of Restorer were created on the Establishment of this Court, against which 15 appointments were made showing the same to be against the available vacancies. One Restorer was already working against leave vacancy. In this way, 16 Restorers were working against 11 regular vacancies and thereafter, 10 posts of Restorers were created on 09.04.1991, 1 post of Restorer was created on 01.05.1991 and 15 posts of Restorer were C.W.P. No. 8650 of 1993. -6- created on 14.05.1991. These posts were filled up by making various appointments. By virtue of Rule 21 of High Court Establishment (Appointment and Conditions of Service) Rules, 1973, only 10% vacancies in the cadre of Restorer during the calendar year were to be filled by promotion from Class-IV employees, who were matriculate or possessed higher education and had minimum three years experience on the Establishment of this Court. The actual appointments, thus, made against this quota exceeded 10%. The whole position was reviewed and on scrutiny of the records, it revealed that 164 Restorers were working against the strength of 155 Restorers. Thus, 9 surplus Restorers were adjusted against the leave vacancies. In case respondent No. 1 was required to revert the promotee Restorers to the post of Frash, the principle of last come first go was required to be followed, which principle was totally overlooked by respondent No. 1. The petitioner was reverted as Frash on 26.02.1992, whereas Devinder Kumar/respondent No. 3 was retained as a Restorer and ultimately was reverted to the post of Frash on 20.10.1992. Above all, the services of the petitioner were terminated to accommodate Devinder Kumar/respondent No. 3, which is totally impermissible in law. The services of a senior cannot be terminated to make way and to accommodate a junior. Firstly, the reversion of the petitioner from the post of Restorer to that of Frash with effect from 05.02.1992, vide order dated 26.02.1992 (Annexure-P-6) was not in accordance with law and thereafter, the termination of services of the petitioner as Frash, vide order dated 20.10.1992 (Annexure-P-10) cannot be sustained. However, in the light of the fact that after reversion of Devinder Kumar/respondent No. 3 to the post of Frash from the post of Restorer, vide order dated 20.10.1992, no person junior to the petitioner was retained as Restorer, the petitioner cannot make a grouse with regard to his reversion to C.W.P. No. 8650 of 1993. -7- the post of Frash beyond 20.10.1992 as no person junior to him was retained as Restorer. It would not be out of way to mention here that during the pendency of the present writ petition, the petitioner died on 14.09.2002. C.M. No. 2023 of 2005 was filed by legal representatives of the petitioner for impleading them as petitioners. The said application was allowed by this Court, vide order dated 28.02.2005. In the light of this position, petitioner Bhawant Singh, cannot be ordered to be reinstated in service. In view of the above, the writ petition is allowed. Order dated 26.02.1992 (Annexure-P-6) and order dated 20.10.1992 (Annexure-P-10) passed by respondent No. 1 are hereby set aside. Bhagwant Singh is held entitled to benefit as Restorer from 05.02.1992 to 20.10.1992 and as a Frash till the date of his death. The consequential benefits be determined by respondent No. 1 and the financial benefits be disbursed to the legal heirs of the petitioner Bhagwant Singh within a period of three months from today. (AUGUSTINE GEORGE MASIH) JUDGE February 08, 2010. sjks.