C.W.P. No.17062 of 2009 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.17062 of 2009 (O&M) Date of Decision. 01.09.2010 Sudesh Kumar Gill son of Shri Om Parkash resident of V&PO Kharainti, District Rohtak-presently working as an XEN in Panchayati Raj Department, Haryana at Jind. ......Petitioners Versus State of Haryana through Financial Commissioner & Secretary to Govt. of Haryana, Development and Panchayat Department, Haryana, Chandigarh and another ......Respondents 2. C.W.P. No.19155 of 2009 Arshad Ali S/o Sh. Akbhar Khan resident of H.No.419, House Board Colony, Palwal, District Palwal and others ......Petitioners Versus State of Haryana through Financial Commissioner & Secretary to Govt. of Haryana, Development and Panchayat Department, Haryana, Chandigarh and another ......Respondents Present: Mr. K.L. Arora, Advocate with Ms. Priya Narayan, Advocate for the petitioners. Mr. Dharmender Singh Rawat, Advocate for Respondent No.2 in C.W.P. No.17062 of 2009 and for respondent No.3 in C.W.P. No.19155 of 2009. CORAM: HON'BLE MR. JUSTICE MEHTAB S. GILL HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. I. The essential reliefs in the writ petitions C.W.P. No.17062 of 2009 (O&M) -2- 1. The twin writ petitions arise out of the same cause of action. The writ petition filed in CWP 17062/2009 by Sh.Gill contains a prayer for reviewing/recalling the orders passed by this Division Bench on 16.12.2008 in C.W.P. No.17621 of 2007 on the ground that the said order had been obtained by the writ petitioner, in that case Sohan Singh, without disclosing the relevant facts and the order passed by the Bench in restoring the date of promotion of Sohan Singh from 17.3.1996 to 03.11.1995 has caused immense prejudice to the petitioners. The other petition in CWP 19155 of 2009 has been filed by Arshad Ali and 5 others containing the similar prayer that the order passed in CWP 17621 of 2007 to be recalled and recast the seniority list issued on 27.10.2009 purportedly in compliance with the order in the above writ petition. Both the writ petitions are being disposed of in the light of the facts and the reference to the parties as enumerated in C.W.P. No.17062 of 2009. 2. The contention was that the writ petition in CWP 17621 of 2007 had been filed without impleading him and others, such as Karan Singh, Dharamvir as parties to secure the relief that had immediate relevance for upsetting the seniority position in the department of Development and Panchayat, Government of Haryana. Originally, an application for review had been filed in the said writ petition itself in C.W.P .No.17621 of 2007 but it was disposed of on an order by this Court that the applicant would be at liberty to challenge the decision as aggrieved party by an independent proceeding. II. The case decided in CWP 17621 of 2007 C.W.P. No.17062 of 2009 (O&M) -3- 3. Since the writ petitions contain a prayer that the order passed by us in C.W.P. No.17621 of 2007 was required to be recalled, it becomes essential to examine on what basis the order was passed and whether it contain any error, even apart from manifest error or patent mistake that would require to be corrected at the instance of the writ petitioners. The petitioner Sohan Singh in Civil Writ Petition No.17621 of 2007 had contended that he had joined as a Junior Engineer with the respondent on 27.11.1981 and regularized on that post w.e.f. 01.11.1986 and shown in the serial No.89 in the seniority list finalized and released on 26.11.95. Three other persons namely Karan Singh, Dharambir Yadav and S.K. Gill, who are parties in these proceedings subsequently joined and they had also been shown as juniors to him in Sr. Nos.119, 157 and 180 respectively. New posts as SDOs had been created in the cadre on 3.11.95. The channel of promotion to the posts of SDOs was Junior Engineers. The rules provided for quota for the posts among direct recruits, persons who were diploma holders and BE/AMIEs holding the posts as JEs. Directs recruits had 50% quota, while promotees and others persons regularized in the feeder posts who were degree holders in Engineering, such as the petitioner had a 4% quota. Although he was eligible against 4% quota, he had not been promoted on 3.11.95 and the promotion was given to him on ad hoc basis on 31.3.96. A spate of writ petitions seem to have been filed by persons who had a grievance about the irregularities in the appointments to SDOs’ posts and by virtue of order passed Masti Ram v State of Haryana (2001) 2 RSJ 244, orders were passed giving a deemed date C.W.P. No.17062 of 2009 (O&M) -4- of promotion from 3.11.95, when there was vacancy position for him as per quota. At the time when the promotion had been offered to him, he had but a provisional degree certificate alone for having passed B.E. in the Engineering College, Kurukshetra and the examination held in June, 1995. The University had issued the certificate subsequently on 31.11.1995 that recorded the fact that he had been declared passed in the exam held in June, 1995 in 1st Division with Honours. 4. The dispute in the earlier writ petition was that after Sohan Singh had been issued with orders of promotion w.e.f. 03.11.1995, it was sought to be withdrawn on the ground that on the day when the promotion order was issued, he had not obtained a degree certificate from the University but he had merely a provisional certificate and therefore, the promotion date was liable to changed from 03.11.1995 to 07.03.1996 that is the date after a full-fledged degree certificate had been produced by Sohan Singh. This change of dates was made known to him only when a tentative seniority list had been issued to be effective from 07.03.1996 when the date of promotion had been changed. Karan Singh, Daramvir Yadav and Gill, who were juniors to Sohan Singh as per the seniority list issued on 26.11.95, stood to benefit from the changed date of promotion as SDO, and they had been treated as seniors in the SDOs post. Consequently, it affected further promotion to the post Xens, when Karan Singh and Dharamvir Yadav became Executive Engineers (XEN for short) from 17.1.01 and Gill became XEN on 12.8.01, while Sohan Singh was made the XEN on 31.7.02. C.W.P. No.17062 of 2009 (O&M) -5- Answer to the challenge: To the limited enquiry that had been undertaken in CWP 17621/2007, the order contains no error:- 5. At the previous writ petition, therefore, we were addressing a short point of whether the non-production of a degree certificate was material, when he had a provisional certificate for proof of having passed the Engineering Graduate Course and having found that the certificate of pass, which had been issued subsequently recorded the fact that he had passed the examination held in June 1995, we held that the date of promotion could not have been altered to his detriment. In effect, we were restoring an order that had been passed even in the year 1995 granting him a promotion w.e.f. 3.11.95, the date when the posts were created and the petitioner was reported to have become eligible for promotion in the newly created posts. It must be emphasized that our order did not give to the petitioner a new right. We were restoring a status quo ante recognizing the fact of his passing the Engineering Degree Course and affirming an order of promotion made to him on the basis of seniority list, which had been issued earlier, ranking him higher to the present writ petitioner. We are informed in these writ petitions that there were several attempts to draw up seniority lists on 18.10.95, 30.11.95, 2.1.97, 6.2.98, 16.8.99, 21.5.2002 in the meanwhile. The seniority lists were not in challenge before us and the inter se dispute that may have existed between the petition in CWP 17621/2007 and the present writ petitioners did not come up for consideration. The decision was merely an attempt to carry to a logical end to what began when SDOs posts were created, when C.W.P. No.17062 of 2009 (O&M) -6- Sohan Singh became eligible for promotion within Engg. Graduate quota and the order passed on 7.11.01 recognising his eligibility to the post from 3.11.95 was restored. The order passed changing the date of promotion as effective from 7.3.96 instead of 3.11.95 was set aside. The order was perfectly justified, so far as it addressed only the claims of Sohan Singh and we see no error in what we ordered. We, therefore, reject the contention of the petitioner in the present case that there was any form of error in the order passed by us that required to be corrected. III. The grievance of the respective petitioners – the genesis lies in settlement of seniority issue 5. The grievance of the petitioner in the first writ petition, however, is that the Sohan Singh could not have been shown senior to him, for the petitioners in both the writ petitions entered into service after a selection process when they had been appointed after an examination while Sohan Singh had participated in the selection and failed. It is the truth of this contention that would require to be examined in the present writ petitions. (a) Initial appointment of the writ petitioner and the earlier appointment of Sohan Singh on ad hoc basis 6. It is contended by the writ petitioner that against 50 sanctioned posts of Junior Engineers selections had been made and interview conducted by SSS Board in the year 1989. It is contended by the petitioner that Sohan Singh also contested for being selected but he was rejected in the interview. However, Sohan Singh had been appointed on ad hoc basis and a condition was alleged to have been imposed in his appointment order that his services would be C.W.P. No.17062 of 2009 (O&M) -7- terminated as and when persons selected by the SSS Board occupied the respective posts. The petition is silent about when Sohan Singh had been appointed on ad hoc basis but it comes through the documents filed by Sohan Singh and the facts elicited in the earlier writ petition that he had been appointed as a Junior Engineer even on 27.11.1981. The petitioner would, however, qualify himself as a senior to Sohan Singh on the premise that the appointments that had been rendered to Sohan Singh and others on ad hoc basis were backdoor entries. The petitioner was confirmed on his post after initial appointment on 01.12.1989 vide orders dated 15.11.1989. The petitioner was promoted to the post of SDO (PR) against degree holder quota on 27.09.1993. In this order, it could be noticed that there is a reference to the fact that his promotion was subject to the final decision in C.W.P. No.3479 of 1993 pending on the file of this Court. The exact details of the said writ petition is not known but It is seen through the document filed by the petitioner himself that vide order dated 20.01.1992, the service of ad hoc Junior Engineers working in different blocks including were regularized w.e.f. 31.12.1990. This order, therefore, purports to be in pursuance of an earlier notification issued on 28.02.1991. The first in the list of a persons, whose service was regularized was Sohan Singh. The said order earlier records the fact of his very same status as an ad hoc Junior Engineer and the said order states that if the date of joining the post on ad hoc basis by such an ad hoc employee was the same, then the older employee shall rank senior to the employee younger in the age and if the appointment of direct recruitment and C.W.P. No.17062 of 2009 (O&M) -8- the date of regularization of ad hoc employees was the same, then the direct recruit should rank as senior. We have already examined the fact that the petitioner had been regularized on 01.12.1989 and Sohan Singh had been regularized in the service only w.e.f. 31.11.1990. If the situation had continued thus there would be no difficulty in accepting the contention of the petitioner that he had been taken as a senior to Sohan Singh and that he was entitled to maintain his seniority over him. The reference to further facts would indicate just otherwise. (b) Seniority position assigned in final seniority drawn on 26.11.95 ranks Sohan Singh higher to petitioners in both writ petitions 7. The petitioner's claim to seniority comes through the basis that the cadre of JE (NREP) to which Sohan Singh belonged was merged with cadre of JE (CD) to which the petitioner belonged w.e.f. 1.9.1995. After the two cadres were merged, a joint seniority list had been issued on 08.10.1995 that cast the petitioner at Sr. No.92 in the seniority list while Sohan Singh had been shown at Sr. No.103. It is borne out through records that the petitioner had been working as SDO on ad hoc basis from 27.09.1993 on the promotion post but he was promoted on regular basis only on 03.11.1995. He appears to have been promoted subsequently on still higher post as XEN on 17.1.1991. The petitioner would compare the situation to the promotion offered to Sohan Singh on ad hoc basis on 30.03.1996 to the post of SDO and later given a deemed date of promotion as SDO on 03.11.1995. According to him, this deemed date of the petitioner was not tenable since Sohan Singh was the junior-most JE at Sr. C.W.P. No.17062 of 2009 (O&M) -9- No.103 and that the ad hoc officiation since 30.07.1996 did not give any right of consideration for a period even earlier to the date when he was actually promoted. Explaining the reason as to why the petitioner did not challenge the deemed date of promotion for Sohan Singh, he would explain it by saying that he had been continuing as XEN from 17.01.2001 that is even before the date when the deemed date of promotion was given to Sohan Singh, when the order had been issued on 07.11.2001. It must be noticed that the petition is now literally bargaining for setting the clock back to a situation of annulling the orders issued regularizing Sohan Singh by virtue of a direction given by this Court in Piyara Singh's case (1992) 4 SCC 118 and to take advantage of ad hoc officiation to higher post before Sohan Singh. The petitioner has allowed grass to grow under his feet as it were, by not taking note of the deemed date of promotion to Sohan Singh to SDO's post earlier and the seniority list showing him at Sr. No.62 against Sohan Singh's 103, which had not yet become final. These facts are brought out through the statement filed by the 2nd respondent. The statement refers to the fact of a policy decision of the Government of Haryana regularizing persons, who had been appointed on ad hoc basis through the regularization policy dated 16.02.1987. This was the starting point for the grievance of persons, who sought enforcement of the regularization policy by filing C.W.P. No.120 of 1987. It had been originally dismissed on 22.09.1987 against which LPA No.5171 of 1987 had been filed. The LPA was allowed on 26.09.1987 when a Division Bench directed that persons, who were appointed as Junior Engineers including Sohan Singh were C.W.P. No.17062 of 2009 (O&M) -10- entitled to be regularized w.e.f. 01.11.1986 as per the policy dated 16.02.1987. This case had been the subject of SLP to the Hon'ble Supreme Court and it was in that decision titled “State of Haryana Vs. Piyara Singh” that gave a right to Sohan Singh and others to claim regularization in terms of the regularization policy issued by the State of Haryana. The respondent would contend that three new posts of SDOs against degree-holders quota had been created only on 03.11.1995 and being the seniormost degree holder as a Junior Engineer in the respondent-department, Sohan Singh had been promoted against one of the three posts for degree holders quota. The promotion to the 2nd respondent w.e.f. 03.11.1995 was on regular basis though at the time of initial appointment, it had been shown only as ad hoc promotion. By virtue of order dated 07.11.2001 the ad hoc appointment itself was treated as regular promotion. Significantly, this order dated 07.11.2001 had not been challenged by the petitioner. It appears that when a tentative inter se seniority list for SDOs had been drawn up 10.07.2006, the 2nd respondent had been shown as promoted on 07.03.1996 when the petitioner was shown as senior to him. The 2nd respondent would point out that he was senior to the petitioner in the feeder cadre as a Junior Engineer and therefore, he should not have been shown as junior in the promotion post. Referring to the fact of seniority position in the feeder cadre, the 2nd respondent would contend that having joined the service on 27.11.1981 and regularized w.e.f. 01.1.1986 his seniority position was 89 while the petitioner's position in the C.W.P. No.17062 of 2009 (O&M) -11- seniority list, having joined the post as a Junior Engineer was 180. The final seniority list had been issued even on 26.11.1985 and it has been filed as Annexure R-2/9. (c) Sohan Singh’s regularization pursuant to Court orders in Piara Singh’s case cannot be reopened or challenged 8. On 20.11.1995, the Director, Development and Panchayats Haryana issued an order in compliance with the terms of the Government notification issued on 28.2.1991 that the services of Junior Engineers, who were regularized w.e.f. 31.12.1990 was further revised as per the directions of a decision of this Hon'ble Court in LPA No.1571 of 1987 dated 26.09.1988 and in further compliance of the order of the Hon'ble Supreme Court in C.A. No.2979 of 1992 on 08.12.1992 pursuant to the decision in State of Haryana Vs. Piyara Singh (1992) 4 SCC 118 . As per this order, which was pursuant to the directions of the Division Bench of this Hon'ble Court as affirmed by the Hon'ble Supreme Court, 56 persons that included Sohan Singh had been declared as regularized w.e.f. 01.11.986 instead of 31.11.1990. This is significant for it gives a status to Sohan Singh as having been regularized on 01.11.1986 itself that is the date, which is even prior to the date of initial entry of the present petitioner. This order had been issued as early as on 20.11.1995. It is on the basis of this order that Sohan Singh obtained a consideration for the further promotion to the post of SDO, which was to be effective from 03.11.1995 but later changed to 07.03.1996. If the petitioner had been aggrieved about the regularization of services of Sohan Singh, which was directed to be C.W.P. No.17062 of 2009 (O&M) -12- effective from 01.11.1986 instead of 31.12.1990, it is the order which was issued on 20.11.1995, which would be the starting point for the petitioner to have a grievance. Secondly, nothing is brought on record to show that the petitioner had challenged the order regularizing the service of Sohan Singh w.e.f. 01.11.1986, which directly impacted the respective petitioners’ status in terms of seniority. 9. Having not challenged the order of regularization of Sohan Singh from the date earlier than the petitioner's own appointment, it will be too late in the day to contend that the initial entry of Sohan on ad hoc basis was a back door entry and illegal. The decision in State of Haryana Vs. Piyara Singh (1992) 4 SCC 118 held the field significantly for a long period and that became binding between the parties till the point of law involved in that case was set aside by the Hon'ble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi and others (2006) 4 SCC 1. The decision in Uma Devi was only prospective and it did not affect the persons, who had come by the benefit through Piyara Singh's dispensation. Sohan Singh and along with him persons who had been appointed to ad hoc posts and subsequently regularized w.e.f 31.12.90 had obtained advantage over the claims of the petitioners, one, by the Haryana regularization policy issued on 16.2.87 and two, to be effective from an earlier date, modified as such, by judicial orders upholding such regularization in LPA 1571/87 as affirmed by Supreme Court in Piara Singh’s case (supra) on a contempt action initiated before this court w.e.f. 1.11.86. An immediate advantage by the C.W.P. No.17062 of 2009 (O&M) -13- adoption of Piyara Singh cannot be unseated by a subsequent decision in Uma Devi finding the law laid down in Piyara Singh as not correct. Sohan Singh, who had been regularized w.e.f. 01.11.1986 was entitled to retain his seniority with reference to the date when he was made regular that is the period, which was interior to the period of the petitioner. It must be noticed that even at the time when the petitioner had been promoted to the post of SDO, it was made specifically subject to the decision of the High Court in C.W.P. No.3479 of 1993. However, the entire edifice of the document is built on the fact that the appointment of Sohan Singh is void ab initio. Such a contention shall not be permissible before this Court after a regularization was directed to be made and in fact made on 20.11.95 itself, pursuant to a direction of Division Bench ruling affirmed by the Hon'ble Supreme Court. 10. If there was grievance of the petitioner that the 2nd respondent's entry was through backdoor and that he was not entitled to be considered as senior on the basis of the regularization effected through a direction from this Court, the cause of action for the petitioner had arisen even in the year 1995. There is no explanation given by the petitioner as to why he did not challenge the seniority list, which was drawn up finally. To his contention that since he had been officiating as XEN from February, 2001 even before the 2nd respondent had been offered the higher post he did not take notice of the same, cannot be justified or if he had not been aggrieved at the time when the 2nd respondent staked his claim C.W.P. No.17062 of 2009 (O&M) -14- to the still higher post, he was entitled to treat his own seniority position from the seniority that was assigned to him in the feeder cadre and carry the same to the promotion post as well. The 2nd respondent would point out that out of three persons namely Karan Singh, Dharambir Yadav and S.K. Gill, who is the petitioner herein, and though the petitioner had been promoted as XEN earlier, it was erroneous and therefore, it appears that 2nd respondent had served a notice to the respondents as to how the petitioner, who was junior to the 2nd respondent in the feeder cadre as SDO could have been promoted to the higher post before he was promoted. This plea of the 2nd respondent appears to have been rejected on the ground that the date of promotion of 2nd respondent was only from 07.03.1996 and not from 03.11.1995 when the post was created. It was at that time, the earlier writ petition had been filed in C.W.P. No.17621 of 2007 where this Court by the order dated 16.12.2008 had allowed the claim of the petitioner and directed that he should have been deemed to have been promoted on 03.11.1995 when the post was created and when he was fully eligible for being promoted against the graduate engineers quota. The inter se seniority between the petitioner and the 2nd respondent had been settled as early as on 26.11.1995 where it was specifically ordered that a joint seniority list of Junior Engineers(CD) and Junior Engineers (NREP) had finally been prepared and circulated on 18.10.1995 inviting objections and after