CWP NO.4529 OF 1982 :1: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: .9.2008 1.CWP No.17 of 1981 N.S.Lamba vs. The State of Punjab and others 2.CWP No.4529 of 1982 DD Verma vs. The State of Punjab and others 3.CWP No.2493 of 1984 Mohinder Pal Singh vs. The State of Punjab & Anr. 4.CWP No.5156 of 1984 Surinderpal Singh Grewal vs. The State of Punjab CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.BR Gupta, Sr.Advocate with Mr.Shreesh Gupta, Advocate Mr.D.S.Brar, Advocate Mr.D.S.Patwalia, Advocate for petitioner(s) Mr.S.S.Sahu, AAG, Punjab for respondent (s) Permod Kohli, J. This judgment will dispose of CWP Nos. 17 of 1981, 4529 of 1982, 2493 and 5156 of 1984 as common questions of law and facts are involved in all these writ petitions. Dispute in these petitions relate to the seniority to the post of Sub Divisional Engineers and subsequent promotion to the post of Executive Engineers in the Electrical Department of the State of Punjab. Petitioner-N.S.Lamba in CWP No.17 of 1981 is also CWP NO.4529 OF 1982 :2: respondent in CWP No.4529 of 1982. Both of them raised their inter se dispute. However, petitioner in CWP No.2493 of 1984 and petitioner in CWP No.5156 of 1984 have also raised similar dispute of seniority and promotion. First of all, I may take notice of the facts relevant in CWP Nos.17 of 1981 and 4529 of 1982. Petitioner-N.S.Lamba, after obtaining diploma in Electrical Engineering also qualified AMIE Examination and joined as Sub Divisional Engineer in Punjab Service of Engineers Class II on being selected by the Punjab Public Service Commission vide order dated 9.2.1973 as a direct recruit. His initial appointment was on probation and on completion of probation, he was confirmed vide order dated 27.4.1976. Mr. DD Verma, respondent no.2 in CWP No.17 of 1981 and petitioner in CWP No.4529 of 1982 was diploma holder and came to be recruited as Sectional Officer on 28.12.1959. He was promoted as Sub Divisional Engineer on ad hoc basis on 23.6.1966 and appointed substantively w.e.f. 30.11.1968. The State- respondent issued a draft roster of Sub Divisional Engineers (Electrical) for inviting objections vide its Circular dated 29.1.1980. In this Circular, it has been mentioned that the first block of eight vacancies of Sub Divisional Engineers has been consumed. The petitioner, N.S.Lamba seems to be aggrieved of this Circular. Besides filing representations, he has also challenged the aforesaid circular as his representations have not been decided. The further grievance of petitioner-N.S.Lamba is that respondent DD Verma has been promoted as Executive Engineer ignoring the seniority and CWP NO.4529 OF 1982 :3: claim of petitioner- N.S. Lamba. His further grievance is that the Circular dated 29.1.1980 showing first block of eight vacancies as exhausted is contrary to the facts and rules. The petitioner has also alleged that neither any valid roster has been fixed in terms of Rule 6 nor any seniority has been determined under Rule 12 of the Rules and respondent- DD Verma has been promoted in contravention of the rules. Petitioner accordingly has prayed for a direction in the nature of Mandamus to determine the seniority of the petitioner vis- a-vis respondent- DD Verma and to consider the petitioner's claim for promotion to the post of Executive Engineer with effect from the date person junior to him was promoted. The grievance of Mr. DD Verma petitioner in CWP No.4529 of 1982 is in respect of the fresh Roster published by the respondent-State vide Notification dated 11.6.1982 wherein N.S. Lamba who is one of the respondents in this petition has been shown at Sr.No.4 and petitioner DD Verma at Sr.No.6. He has also challenged the show cause notice dated 15.7.1982 issued to him by the respondent-State whereby he has been asked to show cause as to why he be not reverted from the post of Executive Engineer to that of Sub Divisional Engineer and his seniority refixed on the basis of Notification dated 11.6.1982. Petitioner has sought a direction for fixation of Roster in the light of judgment dated 29.8.1980 of this Court reported as M.K.Jaggi v. State of Punjab (Pb.&Hy.) 1980 (3) SLR 732 which has been upheld by Hon'ble Supreme Court in SLP No.5217 of 1981. Petitioner- Surinderpal Singh Grewal in CWP No.5156 of CWP NO.4529 OF 1982 :4: 1984 has filed separate petition seeking direction for fixation of Roster and seniority on the basis of the judgment in the case of M.K.Jaggi (supra). This petitioner being a graduate Electrical Engineer came to be recruited as Sub Divisional Engineer (Electrical) vide order dated 9.2.1983, as a direct recruit. His further grievance is that seniority has not been fixed in accordance with Rule 6 read with Rule 12 of the Punjab Service of Engineers, Class II, PWD (Buildings and Roads Branch) Rules, 1965 (hereinafter referred to as “the Rules”). He has also challenged the inclusion of name of one Mr. N.S.Aulakh in the Roster Point at Sr.No.1 as a direct recruit on the ground that said NS Aulakh was inducted into the service by transfer and not by direct recruit. Petitioner-Mohinder Pal Singh in CWP No.2493 of 1984 has prayed for fixation of Roster Point and Seniority on the basis of judgment in M.K.Jaggi 's case (supra). This petitioner was recruited as Sectional Officer in Public Workers Department, (B&R) (Electrical) of the Punjab Government on 12.12.1970. After acquiring AMIE, he was promoted as Sub Divisional Engineer on ad hoc basis on 4.11.1982. He has challenged the direct recruitment sought to be made to the post of Sub Divisional Engineer through Public Service Commission and fixation of his seniority over and above the direct recruits on the sole ground that his appointment as Sub Divisional Engineer falls under Block I and he is entitled to rank senior to the direct recruits. All the petitioners are governed by the aforesaid Rules of 1965. The relevant rules for the purposes of the adjudication of CWP NO.4529 OF 1982 :5: present writ petitions are reproduced as under:- “6.Recruitment to Service (I) Recruitment to the service for cadre and ex-cadre posts shall be made in the following manner only from the sources listed below in the proportions and the order indicated against a lot of every 40 vacancies:- Method of Recruitment Proportion Allocation of each source in a lot of 40 vacancies. 1.Direct appointment 26 5 6 5 5 5 2.Promotion from the members of the Punjab PWD B&R. Sectional Officer Engineering) Service 8 2 1 2 1 2 3.Promotion from draftsmen members of the Draftsmen and Tracers Services. 2 1 - - 1 - 4.Promotion from members of the Punjab, PWD (B&R) Sectional Officers (Engineering) Service and the Draftsmen and Tracer Service, possessing qualifications, prescribed in Appendix “B”.0 4 - 1 1 1 1 40 8 8 8 8 8 (2)In case suitable candidates are not available from source No.(4) the vacancies shall be filled by direct recruitment. (3)In case a candidate is not available from sources no.1 and 3 and a person has to be appointed, in public interest, a stop gap arragnement from other than the allotted sources, such a person shall be liable to be reverted to his original cadre when a candidate from the allotted sources is available and the period of service rendered by such person will not be reckoned for the purpose of seniority. CWP NO.4529 OF 1982 :6: (4)The Govt. may fill a short term vacancy in the exigencies of public service, after recording specific reasons for a period of not exceeding six months in each case by local arrangement from among the members of the Punjab PWD (B&R) Sectional Officers (Engineering) Service, without resorting to the select list prepared under rule 9. (5)No person except to the extent provided under sub rule (4) - (a) who is not a substantive member of the PWD (B&R) Class II Service in the junior scale on the date of enforcement of these rules or, (b) who is not considered suitable for appointment to the service as provided in rule 7 read with appendx “G” shall hold the post of a Sub Divisional Officer, even in an officiating capacity, unless he is declared within a period of six months from the date of enforcement of those rules, as suitable for appointment to the service under the provisions of these rules. XXX XXX XXX 9.Appointment by Promotion: (1) A Committee consisting of the Chairman of the Punjab Public Service Commission or where the Chairman is unable to attend any other member of the CWP NO.4529 OF 1982 :7: Commission representing it, Secretary PWD Buildings & Roads Branch, and Chief Engineers of PWD Buildings and Roads shall be constituted. 2.The Chairman of the member of the Commission as the case may be, shall preside over the meeting of this Committee. 3.The Committee shall meet at intervals, ordinarily not exceeding one year and consider the cases of all eligible officials for promotion to the service on the first day of January of that year. 4.The Committee shall prepare a list of officials suitable for promotion to the service. The selection for inclusion in such list shall be based on merit and suitably in all respects within due regard to seniority. 5.The names of the officers included in the list shall be arranged in order of seniority in Punjab PWD (B&R) Sectional Officers (Engg.) Service and Members of Draftsmen and Tracers Service. Provided that any Junior Officer, who, in the opinion of the Committee is of exceptional merit and suitability may be assigned a place in the list higher than that of officers senior to him in his own class. CWP NO.4529 OF 1982 :8: 6.The list so prepared shall be revised every year. 7.If in the process of preparing the list or its revision, it is proposed to supersede any eligible candidate, the Committee shall draw up a list of such officials and may record its reasons for proposed supersession. 8.The list prepared or revised in accordance with sub-rule (4) (5) and (6) shall then be forwarded to the Commission by Government alongwith:- (i)the records of official included in the list (ii)records of all officers proposed to be superseded as a result of the recommendations made by the Committee; (iii)the reasons, if any, recorded by the Committee for the proposed supersession of an official; & (iv)the observations, if any, of the State Government on the recommendations of the Committee. 9.The Commission shall consider the list prepared by the Committee alongwith other documents received from the State Government and unless it considers any change necessary, approve the list; 10.If the Commission considers it necessary to make any change in the list received from CWP NO.4529 OF 1982 :9: Government, the Commission shall make the changes it proposes and forward the list it considers suitable to the State Government; 11.Appointment to the service shall be made by Government from this list in the order in which names have been placed by the Commission. 12.Appointment by promotion may be made to an ex-cadre post, or to any post in the cadre in an officiating capacity from the list, prepared under this rule. NOTE: This rule will also apply for assessing the suitability of temporary assistant Engineers, for the service as provided in Appendix “C”.” XXX XXX XXX 12.Seniority (1) Except as provided in sub-rule (5), of this rule relating to officers appointed by transfer, the seniority of the members of service shall be determined by the order of appointment in service according to rule 6, 8 and 9 irrespective of their date of joining. Provided that where the period of probation of an officer has been extended the order of appointment shall be deemed to have issued on a date determined by adding to the original date the extended period of probation. (2)The inter-se seniority of the members of the CWP NO.4529 OF 1982 :10: service shall be in order of recruitment provided under rule 6: Provided that in case an officer does not join his appointment within six months of the date of order of appointment his seniority shall be determined by Government on an ad hoc basis after taking into consideration all the circumstances of the case. (3)The inter se seniority within the group of direct recruitment shall be as in the merit grading under rule 8. (4)The inter se seniority within the group of promoted officers (from a particular source) shall be as in the list approved under rule 9. (5)In the case of an officer appointed by transfer as an Assistant Engineer, while normally he would be placed junior to all the officers appointed directly or by promotion as Assistant Engineers in a particular year, the Government may, in the interest of the public service and taking into consideration all the circumstances of the case, fix his seniority on an ad hoc basis. Provided that the seniority thus fixed shall, in no case, be more favourable than the seniority determined after him credit for the period of CWP NO.4529 OF 1982 :11: service rendered by him in previous appointment as Assistant Engineer or on a post the duties of which, in the opinion of Government are of equivalent or greater responsibility. The decision of Government on this point shall be final. Provided further that the provisions of proviso to sub-rule (1) shall apply to such an officer if his period of probation is extended.” Rule 6 deals with the recruitment to service. Four sources of recruitment have been provided under this Rule. The Rule also envisages a lot of 40 vacancies. These 40 vacancies are to be filled in as per the quota prescribed under Rule 6. 26 vacancies out of 40 are meant for direct recruits, 8 for promotion from members of the Public Works Department (B&R) (Electrical) Sectional Officer, 2 for promotion from draftsmen and tracer service members possessing qualification. The Rule further prescribes a block of eight vacancies for all the four sources where under first five vacancies are meant for direct recruits, 2 for promotion from Sectional Officers Engineering Service, one for promotion from draftsmen in the first block of eight vacancies whereas in the second block, 6 vacancies are for direct recruitment, one for promotion from Sectional Officer Engineering Service and one for promotion from Sectional Officers Engineering Service and the members of the draftsmen and tracers service. Petitioners NS Lamba and Surinderpal Singh Grewal are CWP NO.4529 OF 1982 :12: direct recruits whereas DD Verma and Mohinder Pal Singh are promotees from Sectional Officers. The stand of all the petitioners, except NS Lamba is that the first block of eight vacancies envisaged under Rule 6 stood consumed before 1.11.1976 when the State of Punjab was re-organised and the promotion of DD Verma, Mohinderpal Singh was against the vacancies in the first block whereas the stand of Surinderpal Singh is that M.S. Aulakh who has been shown at Sr.No.1 as direct recruit is not entitled to be placed in seniority list/roster above him. He being inducted into service by transfer is not a direct recruit. The dispute in the petition hinges on following two points:- (1) Whether the first block of eight vacancies stood consumed before 1.11.1966 and whether the petitioner N.S.Lamba falls in the first block of eight vacancies or in the second block of eight vacancies; (2) Whether the inter se seniority in the cadre of service between the direct source of recruitment is to be fixed on the basis of the length of service or on the basis of Rotation of vacancies in proportion to their quota of recruitment. Except N.S. Lamba, the stand of DD Verma and Mohinderpal Singh is that the first block of eight vacancies stood consumed on 1.11.1966 and these promotees, particularly, DD Verma having been appointed earlier than N.S.Lamba has to rank senior on the basis of length of service. With a view to support their contention, they have solely relied upon the judgment in the case of M.K.Jaggi (supra). In the aforesaid case, the State Government had pleaded that the first block of eight vacancies in series of 40 posts have CWP NO.4529 OF 1982 :13: been consumed by absorption on 1.11.1966 i.e. at the time of re- organisation of the State of Punjab. A reference is made to following observations in the aforesaid judgment:- “4.The writ petition has been contested by the respondents who have inter alia pleaded that first batch of eight vacancies in a series of 40 posts having been consumed by the absorption of the persons in position on the appointed day i.e. the 1st November, 1966, the quota of the petitioners in the remaining 32 vacancies works out to not more than six posts in terms of the provisions of Rule 6 (1) of the Rules.....” This contention is, however, countenanced by Sh. BR Gupta, learned Sr. Counsel appearing on behalf of petitioner- N.S.Lamba in CWP No.17/1981. The stand of the State Government is also that the first batch of first block of eight vacancies was not filled up prior to 1.11.1966, rather it is stated that due to some misunderstanding, the first five vacancies meant for direct recruits were said to be already consumed. Sh. DD Verma was appointed by way of promotion by the Government w.e.f. 30.11.1968 as Sub Divisional Engineer. Petitioner, N.S. Lamba has also filed CM No.3771 of 2007 placing on record Annexures P-14 to P-17. When the first Circular dated 29.1.1980 was issued inviting objections to the Roster, the petitioner and various other persons had filed their objections. These objections were considered and a fresh notification dated 11/14 June, 1982 has been issued. In this CWP NO.4529 OF 1982 :14: Notification, N.S.Lamba has been placed at Sr.No.4 and DD Verma at Sr.No.6. Name of Mohinderpal Singh does not figure in the Notification nor the name of Surinderpal Singh figures in this notification in the first block of eight vacancies. From the perusal of this notification, it appears that this notification has been issued under Rule 6 of the aforesaid Rules where under first five vacancies have been allocated to the direct recruits of which first four are 1973 recruits and 5th, namely, Jitender Singh is 1974 recruit. Against the 6th vacancy, DD Verma has been shown from promotional quota from Sectional Officer. This notification is subject matter of challenge in CWP No.4529 of 1982. The aforesaid notification was followed by another Notification dated 12.2.1992 wherein again the objections of Surinder Pal Singh Grewal were also considered and name of M.S. Aulakh who was earlier shown at Sr.No.1 in the notification dated 14.6.1982 has been removed from Sr.No.1 of the Roster. In this Notification, again first five vacancies have been given to direct recruits and 6th and 7th vacancies to Sectional Officer (Promotees) and 8th Vacancy to draftsmen/tracers. A roster of 56 vacancies has been prepared on the basis of Rule 6. Not only this, a separate speaking order has been passed on 28.4.1992 wherein objections of all concerned have been considered. The case of the petitioner, N.S.Lamba is that for the first time direct recruitment took place in the year 1973 and thus the stand of the State in case of M.K.Jaggi (supra) that the first block of eight vacancies including five from direct recruits stood consumed as on 1.11.1966 was totally contrary to the facts CWP NO.4529 OF 1982 :15: and record and thus, the findings in the aforesaid judgment are per iniqurium. No material has been placed on record to show that prior to 1973, any direct recruitment was made, rather now the State has also supported the contention of N.S. Lamba that the first recruitment took place in the year 1973 and N.S. Lamba was the direct recruit of the first batch. The State thereafter issued another notification dated 9.6.1995 whereby seniority of the members of service has been fixed. N.S.Lamba has been shown at Sr.No.2 whereas DD Verma has been shown at Sr.No.3. This Notification seems to be under Rule 12 of the Rules. From the stand of the State and notification referred to hereinabove, it is established that the first block of 8 vacancies in the series of 40 could not have been consumed before 1.11.1966. The first roster of first block of 8 vacancies under Rule 6 was issued vide Circular dated 29.1.1980 which was a draft roster and objections were invited. Whereas the second roster on consideration of the objections was issued on 11/14 June, 1982. Therefore, the observations in M.K.Jaggi's case (supra) seem to be not based upon any material, but only on the basis of replies filed by the State. Now the State has also clarified its stand in the present writ petitions. In any case, the judgment in M.K.Jaggi 's case (supra) is not binding upon the petitioners as none of the petitioners in these petitions was a party to the said judgment. The next question which falls for consideration is the fixation of seniority whether it is on the basis of length of service or on the basis of the rotation of vacancies envisaged under Rule 6. CWP NO.4529 OF 1982 :16: Language of Rule 6 clearly suggests the roster to be prepared in the manner from different sources listed in the Rule and the order indicated against a lot of every 40 vacancy. This Rule not only provides different sources of recruitment and fix the quota for the same, but also provides the rotation of the vacancies which ultimately, leads into fixation of seniority. The significant expression used in the rule is the “order” indicated against a lot of every 40 vacancy. This rule also came up for consideration/interpretation before this Court in case of G.D.Gupta vs. The State of Punjab and others, 1991 (2) RSJ 468 wherein it has been observed as under:- “11. The controversy between the parties hinges primarily on the interpretation of rule 6. A perusal of clause (1) shows that the recruitment to the service has to be made only from four sources specified therein. Specific quota has been assigned to each of the sources. Out of 40 posts, 26 have to be filled by direct recruitment, 8 by promotion from the members of the Punjab P.W.D. (B&R), Sectional Officers (Engineering) Service etc. 2 posts have to be filled from amongst the members of the draftsman and tracers service and 4 posts have been allocated to the category of Sectional Officers and draftsmen etc. who CWP NO.4529 OF 1982 :17: possess any of the qualifications specified in Appendix B. The rule further lays down that the recruitment has to be made in the 'order` indicated therein. In order to put the matter beyond any shadow of doubt, it has been specified that out of the first 8 posts, 5 have to be filled by direct recruitment, the next 2 by promotion of Sectional Officers and one by the promotion of draftsmen. In other words, posts Nos.1 to 5 have to be filled up by direct recruitment, those at Nos.6 and 7 by promotion from amongst the Sectional Officers and the 8th post from amongst the Draftsmen. Similarly, order for recruitment has been fixed for the remaining posts. The rule, as such, clearly fixes that the appointment has to be made in the order specified therein. Slots have been provided and the appointments have to be made accordingly. The rule postulates the `manner' and the `order' of recruitment to the service. It does not merely lay down the sources and the manner in which the appointment has to be made, but also fixed the `proportion and the order' of CWP NO.4529 OF 1982 :18: appointment. It does not merely lay down quota but specifies the vacancies which have to be filled from each source. `Manner' in the context of the present rule means “the mode or method in which something is done or occurs, a mode of procedure....”. `Order' imples `a sequential arrangement; the manner in which one thing succeeds another'. Accordingly, I am of the view that Rule 6 (1) not only `lays down the sources' and