CIVIL WRIT PETITION NO.4406 OF 1986 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 22, 2009 Ravinder Kumar Kashyap and others .....Petitioners VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. A. P. Bhandari, Advocate, for the petitioners. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. Mr. R. K. Malik, Sr.Advocate with Mr. Ashish Chaudhary, Advocate, for respondent Nos.4 and 5. **** RANJIT SINGH, J. (ORAL) The present writ petition has been filed by 8 Judicial Officers, who were selected as Sub Judge-cum-Judicial Magistrate Ist Class in the year 1981. They have prayed for issuance of a writ of mandamus, directing respondent Nos.1 and 2 to refix the seniority of all the Judicial Officers who were selected in terms of the Punjab Civil Service (Judicial Branch) Haryana First Amendment Rules, 1980 (hereinafter referred to as “the Rules”) in accordance with the CIVIL WRIT PETITION NO.4406 OF 1986 :{ 2 }: Government instructions in regard to scheduled caste and backward classes. They have also prayed for quashing the promotion of respondent Nos.4 to 15 on the basis of impugned seniority list with a further prayer that this be declared as nullity and quashed. 34 posts of Subordinate Judges were advertised in terms of the Rules. 24 out of these posts were in open category, 6 were reserved for scheduled castes, 3 for backward classes and 1 for ex- servicemen. Pursuant to the selection done, appointment was offered to 34 candidates, list of which is at Annexure P-1. It is pleaded that the selection and the seniority of those selected candidates is governed by the Rules as made applicable to the State of Haryana. By referring to Rule 10 of the Rules, it is pleaded that selected candidates belonging to scheduled castes and backward classes, in order of inter-se merit, were to be adjusted against the vacancies reserved for them in the manner prescribed by the Government from time to time. Reference is also made to the instructions No.24/27/80- 3 GS-III issued by the Chief Secretary to the Government of Haryana dated 16.12.1980. By making reference to the reservation for various categories as laid down in these instructions, it is pleaded that appointment of scheduled caste and backward class candidates is to be made against the vacancies indicated in the roster. It is accordingly pleaded that the purpose for appointment and seniority position in the roster is to be given to the scheduled caste and backward class candidates. On this basis, challenge is made to the seniority of these 34 candidates selected and appointed in one batch. Based on these instructions, it is also worked out as to how the seniority for various candidates selected is required to be made. The CIVIL WRIT PETITION NO.4406 OF 1986 :{ 3 }: petitioners would also aver that when they received the gradation list corrected upto July 1984, they filed a representation, highlighting the illegalities therein. The said representation was rejected on 12.4.1985. Grievance is that this rejection was done without affording opportunity of hearing to the petitioners. It is, thus, pleaded that fixation of seniority, so far as unreserved category is concerned, the same is wholly arbitrary. It is further pleaded that the Selection Committee was legally bound to prepare a merit of the General Category candidates and their seniority can only be fixed in accordance with the merit so assigned. The petitioners would also plead that no merit list was prepared at the time of selection and the candidates were assigned seniority on the basis of their date of birth, which, according to counsel for the petitioners, was not justified and would further show that no merit list was prepared while making selection. The writ petition was admitted. Replies on behalf of the State and the private respondents have also been filed. The writ petition has remained pending for all these years. During 2003 the writ petition had come up for hearing. The State at that time could not show the original record showing the basis of the merit list prepared by the Selection Committee. Ultimately, however, no merit list could be placed on record. When this case came up for hearing before me, it was pointed out that all the petitioners as well as respondents have by now retired from service on their superannuation. It is also pointed out that none of the Judicial Officers, who are party to the petition, be as petitioners or respondents, were ever promoted or worked as CIVIL WRIT PETITION NO.4406 OF 1986 :{ 4 }: District and Sessions Judge. All the petitioners as well as respondents have retired as Additional District and Sessions Judges. In this context, it was pointed out to counsel for the petitioners whether he will still be interested in pursuing the writ petition. Mr.A.P.Bhandari, appearing for the petitioners, sought adjournment to have instructions in this regard and the case was accordingly adjourned. No instructions are forthcoming. The factual position, which is reiterated today before me by counsel for the respondents as well as respondent-State that all the Judicial Officer, who are party to this petition, be as petitioners or respondents, have retired on superannuation. Accordingly, the controversy, as raised in the petition is left with an academic interest and as such, may not be required to be gone into. Even otherwise, there may not be a need to go into the lis raised in the petition as the issue raised in the present writ petition apparently is fully covered by the decision of the Hon'ble Supreme Court in the case of Bimlesh Tanwar Vs. State of Haryana and others, JT 2003 (2) SC 610. In this case also, the criteria for determining the inter-se seniority was in issue. The specific question was whether seniority should be on the basis of merit in terms of the merit list or on the basis of date of joining on the post. Filling up of vacancies from reserved categories as well as general category was also an issue. The Hon'ble Supreme Court held that consistent practice was followed by the High Court for determining seniority on the basis of merit. The appellant before the Supreme Court was the person who was appointed from the reserved category being scheduled caste, who was disputing his seniority published in the CIVIL WRIT PETITION NO.4406 OF 1986 :{ 5 }: year 1992, claiming that seniority should be determined as per the roster point and not on the basis of merit list. He had also filed a representation, which was rejected. When he approached the High Court by way of writ petition, the same was dismissed. Accordingly, he had filed Special Leave Petition before the Hon'ble Supreme Court, which was dismissed. It was held that seniority is not a fundamental right but merely a civil right and inter-se seniority of the candidates who are appointed on the same day would be dependent on the rules governing the same and only in the absence of any statutory rules the general principles would be applicable. It was then observed that Punjab and Haryana High Court in exercise of power under Article 235 of the Constitution had been determining the inter-se seniority on the basis of merits in terms of instructions dated 27.4.1972. Such practice could not be said to be arbitrary. It was further observed that not only the appointments are required to be made on the basis of the merit list but seniority is also to be determined on that basis. Even if it was to be argued that no merit list was prepared by the Selection Committee, still the exercise, if done, would be academic only as all the officials have by now retired on superannuation. In my considered opinion, no useful purpose will be served in adjudicating the case and the petition is rendered infructuous due to the reasons as disclosed above. The writ petition is disposed of as having become infructuous. July 22, 2009 ( RANJIT SINGH ) khurmi JUDGE