IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH L.P.A. No. 831 of 2010 (O&M) Date of Decision: July 19, 2010 Bikram Jeet Kumar and others …Appellants Versus State of Punjab and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. Rajiv Atma Ram, Senior Advocate, with Mr. Arjun Pratap Atma Ram, Advocate and Mr. Nikhil Chopra, Advocate, for the appellants. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the digest? M.M. KUMAR, J The instant appeal filed under Clause X of the Letters Patent is directed against the view taken by the learned Single Judge in his judgment dated 19.2.2010 while deciding C.W.P. No. 17361 of 2008 and also the order dated 17.5.2010, dismissing Review Application No. 67 of 2010. 2. At the outset, Mr. Rajiv Atma Ram, learned counsel for the appellants has pointed out that in pursuance of the direction issued by the learned Single Judge, the candidates have been shown in the revised seniority list as per the order of merit determined by the Subordinate Services Selection Board, Punjab (for brevity, ‘the Board’). The appellant Nos. 1, 4, 5, 6 and 7 have been arrayed at Sr. Nos. 294, 319, 296, 306 and L.P.A. No. 831 of 2010 (O&M) -2- 291 respectively and, therefore, those persons would not be adversely affected by the direction issued by the learned Single Judge in the impugned judgment dated 19.2.2010. Accordingly, they are un-likely to be reverted because all persons who have been arrayed up to seniority No. 320 are within the zone of consideration and could have been promoted. Consequently they would have separate cause of action because the direction issued by the learned Single Judge would not affect them adversely and the same would not be subject matter of appeal in the instant letters patent. They may avail any remedy in accordance with law. However, we now proceed to consider the issue with regard to the remaining appellants. The short question raised in the instant appeal is whether inter se seniority could disturb the inter se order of merit determined by the Board while selecting the candidates for the post of Gram Sewaks merely on the basis of date of joining. The writ petitioner-appellants challenged the order dated 7.5.2007 (P-9) and the final seniority list of Gram Sewaks circulated vide Memo. Dated 7.1.2008 (P-10). Brief background facts are that Gram Sewaks were appointed in the year 1982 on the basis of the recommendation made by the Board. The writ petitioners as well as the private respondents were amongst the successful candidates. Initially there were no statutory rules regulating the service conditions of Gram Sewaks. But in 1988, the rules known as ‘the Punjab Department of Rural Development and Panchayats (Class-III) Service Rules, 1988 (for brevity, ‘the Rules’) were framed. According to Rule 10 of the Rules, the inter se seniority of the Gram Sewaks shall be L.P.A. No. 831 of 2010 (O&M) -3- fixed without disturbing the order of merit of the selected candidates. Rule 10 of the Rules reads thus:- “10. Seniority of members of the service. (i) The seniority inter se of members of the Service in each cadre shall be determined by the length of continuous service on a post in that cadre of the Service; Provided that in case the case of members recruited by direct appointment who join within the period specified in the order of appointment or within such period as may be extended from time to time by the appointing authority, subject to a maximum of four months from the date of order of appointment, the order of merit determined by the Board shall not be disturbed; Provided further that in case a candidate is permitted to join the Service after the expiry of the said period of four months in consultation with the Board his seniority shall be determined from the date he joins the Service; Provided further that in case any candidate of the next selection has joined the Services before the candidate referred to in the preceding proviso joins, the candidate so referred shall be placed below all the candidates of the next selection who join with the time specified in the first proviso. Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows;- (a) a member recruited by direct appointment shall be senior to a member recruited otherwise; L.P.A. No. 831 of 2010 (O&M) -4- (b) a member appointed by promotion shall be senior to a member appointed by transfer; (c) in the case of members appointed by promotion or transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred; and (d) in the case of members appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a member who was drawing a higher rate of pay in his previous appointment and if the rates of pay drawn are also the same; then by the length of their service in these appointments and if the length of such service; is also the same; then an older member shall be senior to a younger member. Note:- Seniority of members appointed on purely provisional basis shall be determined as and when they are regular, appointment.” It is also pertinent to notice that prior to the aforesaid Rules similar principle of maintaining the order of merit inter se the selected candidates was subject matter of instructions circulated by the respondent State of Punjab, vide Memorandum No. 16355-8GS-62/42251, dated 24.11.1962. The respondent State of Punjab had conceded that in the tentative seniority list of Gram Sewaks, circulated on 27.5.1986 (P-2), the date of joining instead of the order of merit prepared by the Board was taken into account and after the enforcement of the Rules the respondent State has circulated the final seniority list on 7.1.2008 (P-10), strictly as per the inter se merit as determined by the Board. There was no serious dispute raised L.P.A. No. 831 of 2010 (O&M) -5- before the learned Single Judge with regard to the applicability of the aforesaid principle, namely, that the seniority list has to be based on inter se order of merit prepared by the Board. However, the writ petitioner- appellants made a complaint that they were not in a position to find out as to whether or not the actual placement in the final seniority list is strictly as per the order of merit determined by the Board. Disposing of the writ petition and providing remedies to the various grievances made, the learned Single Judge in para 10 of the judgment issued the following direction:- “(10). In these circumstances, this writ petition is disposed of with the following directions:- i. The petitioners shall be at liberty to seek information with regard to the placement of any candidate above them in the final seniority list within a period of two weeks from the date of receipt of certified copy of this order and such information shall be supplied to them by the respondents within two weeks thereafter; ii. The petitioners then shall be entitled to submit representation(s)/objection(s) against placement of such candidates and the same shall be disposed of by the respondents within a period of one month from the date of its receipt. Necessary correction, if so required, shall also be carried out within that period; iii. After rectification(s), if any, and when the seniority list attains finality, the respondents shall proceed to make promotions to the posts of Social L.P.A. No. 831 of 2010 (O&M) -6- Education and Panchayat Officers strictly by following the principle of seniority-cum-merit; iv. Whosoever amongst the petitioners is entitled to continue on the promotional post as per the final seniority list, the reversion order qua such candidates shall be deemed to have been set aside but without causing any disadvantage to their juniors. However, others can be reverted so as to make room for their seniors as per the final seniority list.” Mr. Rajiv Atma Ram, learned counsel for the writ petitioner- appellants has argued that the final seniority list was issued on 27.5.1986 (P-2) and it has remained the basis for grant of various benefits of selection grade and even promotions. According to the learned counsel, the seniority list prepared on the basis of the Rules and the impugned final seniority list circulated on 7.1.2008 (P-10) would cause prejudice to the writ petitioner- appellants and the same cannot replace the earlier final seniority list. He has maintained that the respondent State could not have disturbed the seniority. In support of his submission learned counsel has placed reliance on a judgment of Hon’ble the Supreme Court rendered in the case of B.S. Bajwa v. State of Punjab, AIR 1999 SC 1510. After hearing learned counsel for the appellants and perusing the record we are of the considered view that no exception can be taken to the opinion expressed by the learned Single Judge, especially when before the learned Single Judge the principle of maintaining order of merit was not even contested and the counsel for the petitioner-appellants had, in fact, L.P.A. No. 831 of 2010 (O&M) -7- conceded. The observation made in para 7 by the learned Single Judge reads thus:- “(7). ……No exception can be made to the criteria decided to be followed by the respondents nor does the learned counsel for the petitioner, in all fairness, questions the same. He, however, submits that in the absence of the merit list prepared by the Board, the petitioners are not in a position to find out as to whether or not the actual placement in the final seniority list is strictly as per their inter-se merit.” (emphasis by us) Therefore, we are of the view that the principle of law followed by the learned Single Judge does not require any serious debate. In so far as the judgment rendered in G.S. Bajwa’s case (supra) is concerned, we do not feel persuaded that a seniority list based on iniquitous consideration and un- principled rule could be allowed to prevail. The statutory rules came in force in 1988 and accordingly for the first time seniority list based on the aforesaid rules has been finalised on 7.1.2008 (P-10). The petitioner- appellants cannot claim that seniority based on the date of joining as reflected in the seniority list of 1986 should prevail and the seniority list prepared according to the statutory rules should be abandoned. The petitioner-appellant could not have derived any benefit on the basis of seniority list prepared in contradiction of the 1988 Rules. There is no estoppel against law. In somewhat similar circumstances the question was debated before Hon’ble the Supreme Court in the case of S.S. Bola v. B.D. Sardana, (1997) 8 SCC 522. Their Lordships’ of the Supreme Court even upheld the revision of seniority list in pursuance to the provisions made in L.P.A. No. 831 of 2010 (O&M) -8- the Haryana Service of Engineers, Class-I, Public Works Department (Buildings and Roads Branch), (Public Health Branch) and (Irrigation Branch) Act, 1995, from a retrospective date i.e. 1.11.1966. In para 214 it has been observed that on account of retrospective operation of the Act w.e.f. 1.1.1966, the inter se seniority of the direct recruits and promotee in each of the services will have to be redrawn up in accordance with the provisions of the said Act and the directions were issued to the State of Haryana to finalise the seniority list of all the three branches covered by the said Act. The earlier seniority lists were not protected. Therefore, we do not find any substance in the argument that an un-principled seniority list, which have held the field for some time contravening the provisions of the Rules should have been continued by the respondent State. As a sequel to the above discussion, the instant appeal fails and the same is dismissed and the directions issued by the learned Single Judge are upheld, subject to the statement made by the learned counsel for the petitioner-appellants on behalf of appellant Nos. 1, 4, 5, 6 and 7. (M.M. KUMAR) JUDGE (A.N. JINDAL) July 19, 2010 JUDGE Pkapoor