IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.13262 of 2001 Date of decision:28.11.2008 Anil Kumar Aggarwal .... Appellant versus State of Punjab & others .... Respondents CORAM: HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. S.C. Pathela, Advocate for the petitioner. Mr. P.K. Mutneja, Advocate for respondent No.1 Mr. Heman Aggarwal, Advocate for respondent No.2. **** AJAY TEWARI, J. This petition has been filed challenging the order Annexure P-9 whereby the petitioner has been placed at serial No.15 of the seniority list. The allegation of the petitioner is that he had joined as ad hoc Clerk on 23.08.1977 while the private respondents No.3 & 4 had joined as such on 25.10.1977 and 4.11.1977 respectively. In the year 1980, the State of Punjab did not extend the sanction of the IRDP Scheme resulting in abolition of posts. The service of respondent No.3 & 4 were terminated and petitioner was retained in service. The said respondents as well as other affected employees filed various Court cases which were allowed in their favour and they were taken back into service. As per the petitioner, he continued to be senior than the respondents, and therefore could not be made junior to them in Annexure P-9. In reply, learned counsel for the respondents No.3 & 4 had taken a preliminary objection that as per the impugned order (Annexure P-9) the petitioner has not shown the names or details of the respondents No.10 to 14. In the written statement, it has been specifically pleaded that these persons were also terminated along with the respondent No.3 & 4 and they CWP No.13262 of 2001 -2- had also been taken back in service by dint of various Court orders. It is argued that if the assertions of the petitioner were accepted then the persons who were at serial No.10 to 14 would also be junior to the petitioner and, the petitioner having not challenged the seniority assigned to them, could not challenge the seniority assigned to respondent No.3 & 4 at serial No.8 & 9. In the replication filed to the written statement, the petitioner did not deny these facts. Learned counsel for the petitioner sought to counter the subjection by a certain that he did not dispute the seniority of the persons at serial No.10 to 14 but was only aggrieved by the position of the respondents No.3 & 4. The second contention of the learned counsel for the respondent is that the assertion of the petitioner that he was retained is wrong. In fact, the services of the petitioner had been terminated but he had been given fresh appointment as would be clear from Annexure P-4 itself. However, in para 5 of the written statement of the respondent it has been unequivocally stated that “On the abolition of Integrated Rural Development Programme Scheme, 1980 a tentative seniority was drawn by the office and the junior employees who could not be adjusted against the sanctioned strength of the Clerical cadre in the Board were terminated on 08.09.1980. The petitioner was tentatively shown senior to respondents No.3 & 4 and adjusted against the vacant sanctioned post with the Board.” It is, thus, clear that the petitioner was retained applying the policy of 'last come first go'. In my opinion, if the services of the respondents No.3 & 4 and those persons who are at serial No.10 to 14 of the official seniority list - co-workmen of the petitioner – were illegally terminated by the employer in violation of the provisions of Section 25 F CWP No.13262 of 2001 -3- and 25 G of the Act and if these persons were reinstated in service on account of that violation, they could not steal a march over the petitioner in seniority. Against this back drop, the next contention of the learned counsel for the respondent that the petitioner had been shown junior since as per rules his period of ad hoc service could not be counted for seniority also has to be noticed only to be rejected. The contention of the respondent is that as regards the above mentioned coworkmen of the petitioner, since they were reinstated by orders of Court their services were treated to have been regular from the date/s of their initial appointment/s. There is no warrant for this. The Labour Court only directed their reinstatement. This order could not have the effect of improving their status. Since they were ad hoc employees at the time of termination of their services they would necessarily have to be reinstated to that very service and then, notionally regularised from the date/s of their entitlement. Learned counsel for the respondent has relied upon the case of Satpal Sharma and others versus State of Haryana and others reported as 2002(1) RSJ page 473 in support of his argument that the petitioner could not be granted seniority over the respondents. In this case a Division Bench of this Court disentitled those petitioners since it was found that when their services were absorbed in Government they had given an unequivocal undertaking not to claim benefit of past services. He has also cited the case of Punjab State Electricity Board versus Bimal Kumar reported as 2001 (2) SCT page 76 where this Court held that the period of ad hoc service could not be counted for seniority except in certain specific circumstances. There is no quarrel with this proposition of law. However, in the present CWP No.13262 of 2001 -4- case the question is of not giving the benefit of ad hoc service of the petitioner but rather the question relating to the differential treatment meted out to the petitioner. As noticed above, there is no direction of the Court to the effect that the services of the co-workmen of the petitioner had to be regularised from their initial appointment. The respondent erred in giving that benefit to those persons who were admittedly junior to petitioner. It could not be lost sight of that as per the written statement the service of the petitioner were initially retained when the co-workmen were discharged. The fact that the petitioner was shifted from one post to another regular post (purely on account of his seniority) would not automatically have the effect of a fresh appointment since even the words used in Annexure P-4 are 'adjusted/fixed'. Learned counsel further relied upon the decision of the Hon'ble Supreme Court in Indu Shekhar Singh & others versus State of U.P. & others reported as (2006)8 SCC page 829 wherein it was held as follows: “Seniority as is well settled is not a fundamental right. It is merely a civil right. (See Bimlesh Tanwar v. State of Haryana, SCC para 49 and also Prafulla Kumar Das vs. State of Orissa). The State was making an offer to the respondents not in terms of any specific power under the Rules, but in exercise of its residuary power (assuming that the same was available). The State, therefore, was within its right to impose conditions. The respondents exercised their right of election. They could have accepted the said offer or rejected the same. While making the said offer, the State categorically stated that for the purpose of fixation of seniority, they would not be obtaining the benefits of services rendered in the U.P. Jal Nigam and would be placed below in the cadre till the date of absorption. The submission of Mr. Verma that the period for CWP No.13262 of 2001 -5- which they were with the Authority by way of deputation, should have been considered towards seniority cannot be accepted simply for the reason that till they were absorbed, they continued to be in the employment of the Jal Nigam. Furthermore, the said condition imposed is backed by another condition that the deputed employee who is seeking for absorption shall be placed below the officers appointed in the cadre till the date of absorption. Respondents 2 to 4 accepted the said offer without any demur on 03.09.1987, 28.11.1991 and 06.04.1987 respectively.” This case relates to a situation wherein the deputationists were absorbed with the express stipulation that their past service would not be counted. At this stage, it is also necessary to mention that the petitioner has filed an affidavit dated 10.11.2008 which is taken on record as marked 'A' wherein he has stated that he would not claim any other benefit except that release of pay scale of Rs.1800-3200/- as was granted to the respondents No.3 & 4 on 20.11.1987. With the filing of this affidavit even the ground regarding non-impleadment of the persons mentioned at serial No.10 to 14 loses its sting since the petitioner is not claiming any relief qua them. In view of the discussion made above, I hold that the action of the respondents in granting seniority to the respondents No.3 & 4 over and above the petitioner is illegal. This writ petition is consequently allowed, however, in terms of the affidavit marked 'A' (supra) the relief which is to be granted to the petitioner is limited to the fixation of his pay in the scale of Rs.1800-3200/- w.e.f. 20.11.1987. No costs. November 28, 2008 (AJAY TEWARI) sonia JUDGE