C.W.P. No.3661 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.3661 of 1994 Date of Decision: 01.11.2011 Sawinder Kaur ....Petitioner Versus The State of Punjab and others ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. S.S. Brar, Advocate for the petitioner. Mr. N.S. Pawar, Addl. A.G., Punjab for the respondent-State. ***** 1. Whether Reporters of Local Newspapers 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 ? ** NIRMALJIT KAUR, J. The prayer of the petitioner in the present petition is for issuance of a writ in the nature of certiorari quashing the order dated 28.12.1993 passed by respondent No.2 and writ in the nature of mandamus directing the respondents No.1 and 2 to grant the benefit of service rendered by the petitioner from 16.01.1975 to 19.06.1980 as a Clerk in the Office of District Development and Panchayat Officer, Rupnagar towards seniority and grant of consequential benefits towards pension, pay, seniority and promotion etc. The facts as relevant for the present petition are that the petitioner was appointed as a Clerk in the Office of District Development and Panchyat Officer, Rupnagar vide order dated 16.01.1975. The said appointment was again approved vide order dated 17.11.1979, in which, it was mentioned that the service of the officials including petitioner working C.W.P. No.3661 of 1994 2 in the Directorate is regularised w.e.f. 01.04.1977 after screening their personal records. The petitioner was transferred to Head Office on 11.06.1980 as a Clerk. The petitioner came to know that in the seniority list circulated on 27.05.1988, her name has been shown at Sr. No.21 of the list of Class III officials working in B Wing of the Directorate and it was found that her placement at Sr. No.21 was based on assumption that she has lost the period of service rendered by her in the field office. The pay which she was drawing at Rs.555/- in the field office as Clerk was reduced to Rs.440/- per month without any show cause notice. Respondent no.2 without considering the merits of the case declined to accede the claim for salary and seniority and rejected the same vide order dated 28.12.1993. The said order dated 20.12.1993 (Annexure P-7) has been impugned in the present petition. Reply on behalf of respondents No.1 and 2 has been filed. In the reply, two objections are raised. The first objection is that the Clerks of the Head Office and the Clerks of the Subordinate Offices cannot be inter transferred and the transfer of the petitioner was made to the Head Office on her own request. The transfer to Head Office is outside her cadre. Moreover, as per the Punjab Civil Services Rules Part I Volume I Rule 3.17, a transfer cannot be done outside the cadre ordinarily. In case, the transfer is on the request of an employee then he/she loses the seniority at the subordinate offices and he/she is placed afresh in the seniority list of the Head Office. Secondly, the seniority list was issued by the Department on 27.05.1988. The petitioner was shown at Sr. No.21. She did not challenge the said seniority. As such, she cannot now challenge the same after 14 years. Heard. The first objection of the respondent-State has no merit, in as C.W.P. No.3661 of 1994 3 much as, the order of transfer does not reveal that the same was subject to the condition that the petitioner will lose the earlier service seniority from the date of her confirmation or that the said period will not be counted towards pension etc. In the absence of such a condition, it cannot be said that the petitioner was aware that she will lose her seniority and that the said period will not be counted towards pension and other retiral benefits. In fact, the said transfer has not only resulted in losing the seniority but also her increment earned for the period she served in the subordinate office before joining the Head Office. The petitioner is admittedly governed by the statutory rules known as Punjab Panchayat Department Subordinate Service (Recruitment and conditions of service) Rules, 1943. Part III of the said Rules relates to the Conditions of service. Rule 9 of the same deals with the seniority of members of service. The same reads as under :- “Seniority of Members of service 9) The seniority of the members of the service shall in so far determined as each of the posts specified in Appendix “A” is concerned, be determined by the date of confirmation in the post. Provided that if two or more members are confirmed in the same class of post on the same date, seniority shall be determined according to pay, preference being given to members drawing a high rates or pay and if the rate of pay drawn is the same seniority shall be determined according to the length of service preference being given to the member having the longer service, and if the length of service is also the same seniority shall be determined according to age, the older member being senior to the younger.” The post of Clerk falls in Appendix “A”. As such, the said Rule do not mention that the members shall lose the seniority in case they are transferred from the Subordinate Offices to the Head Office. The only C.W.P. No.3661 of 1994 4 mode of determining the seniority is the date of confirmation on the post. The respondent-State has not brought any other Rule to the notice of this Court to show that in case, an employee is transferred from the Subordinate Offices to the Head Office, he/she will lose his/her seniority or that the said service in the Subordinate Offices will not be counted towards pension and other retiral benefits. It is admitted that the petitioner was regularised w.e.f. 01.04.1977 after screening her personal records. It is not the case of the respondents that the appointment was not proper or that the appointment to the post of Clerk was not confirmed by the Department. The facts to that extent are admitted. No Rule/Regulation or Condition has been pointed out by the respondent-State which may enable this Court to come to the conclusion that the employee was liable to lose his/her seniority in case of his/her transfer whether by the Department or if the said transfer is on the request of an employee. Thus, this very objection cannot be sustained. With respect to the second objection that the petitioner did not challenge the seniority list, is also found to be incorrect from the facts borne out from the records. Admittedly, the tentative seniority list was circulated on 27.05.1988. The petitioner submitted her representation on 19.06.1990 to the effect that she should be given her seniority position on the basis of her entry into service w.e.f. 16.01.1975. The said representation has been placed on record as Annexure P-4. Although, the respondents have denied that they had received any such representation, the petitioner had filed the Civil Writ Petition No.12626 of 1993 which was disposed of vide order dated 13.10.1993, which reads thus :- “Present :- Mr. D.S. Brar, Advocate This writ petition is disposed off in limine with the direction to respondent No.2 to dispose of the representation Annexure P/4 by a speaking and well reasoned order within a period of two months from the C.W.P. No.3661 of 1994 5 date of the production of copy of the order of this Court. The petitioner would be entitled to file a copy of Annexure P/4 and any other representation which she wants to make.” The petitioner in pursuance to the said order, made a fresh representation dated 04.12.1993 which is placed on record as Annexure P-6. Respondent no.2 rejected the said representation vide order dated 28.12.1993. The petitioner immediately, thereafter, filed the present writ petition on 30.03.1994 impugning the said order. Thus, it is incorrect to suggest that the petitioner was challenging the same after 14 years. The petitioner was transferred to the Head Office from Field Office and the seniority of members is to be determined by length of continuous service on the post as per Rules referred to above. The impugned order is, therefore, arbitrary and not supported either by the records or Rules. In view of the above, the present petition is allowed and the respondents are, accordingly, directed to refix the seniority of the petitioner from the date when she was confirmed on the post of Clerk with all consequential benefits. (NIRMALJIT KAUR) 01.11.2011 JUDGE gurpreet