IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 446 of 2003. Reserved on: 26.11.2009 Decided on: December 3 , 2009. Shiv Kanta …..Petitioner. VERSUS Kashmir Singh Rana & ors …..Respondents. Coram The Hon’ble Mr.R.B.Misra, Acting Chief Justice. The Hon’ble Mr.Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Ms. Ranjana Parmar, Advocate. For Respondents : Mr Dilip Sharma, Advocate for Respondent No.1. Mr. Sandeep Sharma, Assistant Solicitor General of India, for respondents No. 2 and 3. Per R.B.Misra, Acting Chief Justice: The petitioner has preferred the writ petition for reviewing the judgment dated 4.4.2003 of learned Central Administrative Tribunal (Chandigarh Bench) in short ‘learned Tribunal’ in OA No.1161/HP/2001. 2. The petitioner/(Smt.Shiv Kanta) initially appointed as Lower Division Clerk (in short ‘LDC’) on 1.7.1971, was promoted as Upper Division Clerk (in short ‘UDC’) on ad-hoc basis with effect from 1.12.1983 and was subsequently promoted on regular basis as UDC 1 Whether the reporters of the local papers may be allowed to see the Judgment? …2… with immediate effect vide order dated 17.2.1994 ( Annexure P-1), whereas Sh. Kashmir Singh Rana, respondent No.1 initially appointed as ‘LDC” on 24.9.1983 and subsequently appointed to the post of Stenographer Grade-IV vide office order dated 25.9.1986, (Annexure A-5) was kept on probation for two years. 3. As per the Directorate of Estates, Regional Office, Shimla (Group C) Recruitment Rules, 1976 ( Annexure P-3), the post of Head Clerk is a selection post to be filled up by promotion from UDC with (five) 5 years service in the grade and Stenographers with (seven) 7 years service in the grade. 4. A combined seniority list of UDCs/Stenographer was circulated vide letter dated 28.10.1999 ( Annexure P-4 ), wherein, the petitioner was placed at serial No.1 with her date of appointment as ‘UDC’ on 1.12.1983 and respondent No.1 was placed at serial No.3 showing his date of appointment as Stenographer on 23.4.1990. Being aggrieved, respondent No.1 by OA No. 1137/HP/1999 challenged the changing of his date of appointment of Stenographer from 25.9.1986 to 23.4.1990 and consequential change in his inter-se seniority of UDC and Stenographers in the office of Assistant Manager, Shimla. The said OA was allowed by learned Tribunal vide order dated 16.8.2000( Annexure P-6 ) with following observations: “In the face of above, it is concluded that the principles of natural justice had not been adhered to while disposing of the representations of private respondents. In view of this, the OA is allowed and orders …3… Annexures A-1 and A-2 are quashed by leaving it open to the respondent authorities to dispose of the representations of the private respondents and the applicant by affording them an opportunity of being heard and by supplying the copies of the representations to the officials likely to be effected. The representations shall be disposed of by passing a speaking order.” 5. Pursuant to above order, an order dated 17.9.2001 (Annexure P-9) was passed by respondent No.3, whereby, it was stated that UDCs with five years service and Stenographers with seven years service are eligible for promotion to the post of Head Clerk and that the seniority of officials as fixed by the Directorate of Estates vide his letter dated 15.6.1999 did not require any change / modification. The respondent No.1 herein again filed OA No.1161/HP/2001 challenging the letter dated 15.6.1999 as well as order dated 17.9.2001 of learned Tribunal and also the combined seniority list of UDCs and Stenographers, wherein, the petitioner and Shri Nahar Singh Chauhan (Proforma respondent in the present writ petition) above were shown above respondent No.1. The said petition was allowed by learned Tribunal vide order dated 4.4.2003, under challenge in the present writ petition. 6. It has been contended on behalf of the petitioner that learned Tribunal has erred in taking the view that ad-hoc appointment of petitioner with effect from 1.12.1983 cannot be taken into account in view of orders dated 17.9.2001 passed by the …4… respondents and relying on the decision of Supreme Court in Direct Recruit Class-II Engineering Officers’ Association and others versus State of Maharashtra and others, AIR 1990 SC 1607, following submissions have been made:- (i) the ad-hoc appointment of petitioner as ‘UDC’ w.e.f. 1.12.1983 was followed by her regular promotion w.e.f. 17.2.1994, hence she was entitled to be given her seniority as ‘UDC’ from 1.12.1983. (ii) The petitioner has no occasion to challenge order dated 17.9.2001, wherein, it was observed that her ad-hoc service shall not be counted towards seniority, as she remained senior-most ‘UDC’ in her own cadre and that by the same order she was kept at Sr.No.1 in the combined seniority list; and (iii) Even if it was assumed that she was entitled to count seniority from the date of her regular promotion as ‘UDC’ i.e. 17.2.1994, even then in view of the decision of Hon’ble Supreme Court, her experience as ad-hoc ‘UDC’ was required to be counted towards her qualifying service of five years which made her eligible for promotion to the post of Head Clerk in the year 1988. (iv) The respondent No.1 having been appointed as Stenographer only on 25.9.1986 could be said to have completed seven years of qualifying service in the year 1993, as such, he became eligible for promotion to the post of Head Clerk much after the petitioner became eligible for promotion, hence, the petitioner was rightly placed at Sr.No.1 in the combined seniority list on the basis of her having acquired eligibility for further promotion prior to respondent No.1. …5… 7. On the other hand, the following arguments have been advanced for and on behalf of the respondent No.1:- (i) The seniority and eligibility are quite different and distinct concepts in service jurisprudence. (ii) An employee may acquire eligibility for further promotion before his senior, but on that basis he cannot claim that he should be ranked senior in the feeder category for further promotion. (iii) If at the time of consideration for promotion the junior has become eligible and senior lacks eligibility and essential qualification, the junior may pass over the senior in the matter of promotion. But when occasion for consideration for promotion arises and by that time if senior has also acquired eligibility and qualification for promotion, his placement in the zone of consideration cannot be down graded merely on the ground that junior had acquired eligibility earlier to the senior. (iv) The initial ad-hoc promotion of petitioner was not against a clear vacancy. Her ad-hoc promotion was only against vacancy caused when an incumbent of post of ‘UDC’ had proceeded on deputation, retaining his lien in his parent department and that there was no clear vacancy available against which the petitioner could have been considered for regular promotion prior to the date when she was actually promoted on regular basis in view of the recommendations of Departmental Promotion Committee, in short (DPC). (v) If initial ad-hoc promotion of the petitioner was against a clear vacancy of UDC, she could have claimed the benefit of such ad-hoc promotion towards seniority on her regularization. But her …6… initial ad-hoc promotion was only in the nature of stop gap arrangement under fortuitous circumstances, moreso, in the absence of a clear vacancy, hence she was not entitled to count her seniority from the initial date of her ad-hoc promotion in the year 1983, therefore, according to the respondent No.1, the decision of The Direct Recruit Class-II Engineering Officers’ Association (supra), is not applicable in the case of petitioner. 8. Respondents No.2 and 3 have reiterated their stand as taken in their respective replies preferred in the present writ petition. 9. From the pleadings of the parties and arguments advanced, the following points emerge for consideration:- (i) Whether ad-hoc service rendered by petitioner as ‘UDC’ from 1.12.1983 could be counted towards the seniority of petitioner in the cadre of UDC ? (ii) If point (i) is answered in the negative, whether petitioner can be placed above respondent No.1 in the zone of consideration for further promotion to the post of Head Clerk on the ground that she became eligible in 1988 by completing 5 years service as ‘UDC’ from the date of her initial ad-hoc promotion as ‘UDC’ in 1983 as against the respondent No.1 who became eligible for promotion in 1993 after competition 7 years from the date of his promotion as Stenographer in 1986. (iii)Whether petitioner is entitled to count her ad-hoc service towards seniority ?. 10. The petitioner has averred in para 2 of her writ petition as below:- …7… “ The petitioner was promoted as ‘UDC’ on ad-hoc basis with effect from 1.12.1983 against a vacancy which occurred on promotion of one Sh. M.S. Bisht who never joined back to his post and retired as Receptionist in March, 1996. The ad-hoc appointment of the petitioner as ‘UDC’ continued till she was promoted on regular basis as ‘UDC’ vide order dated 17.2.1994.” The above averments have been replied in para 2 of the reply of respondent No.1 as below:- “ Petitioner was promoted on ad-hoc basis as UDC against a vacancy which occurred on account of deputation of Sh. C.R. Garg and thereafter Sh. M.S. Bisht. However, these officials were never absorbed in their respective departments and they had maintained their lien with the parent department. Therefore, there was never a clear vacancy available with the parent department against which the present petitioner could have claimed promotion as a matter of right.” The petitioner, however, has not filed any rejoinder to show that any clear vacancy was available for her regular promotion prior to her regular promotion as ‘UDC’ on 17.2.1994. 11. In the case of direct recruit class II Engineering Officers Association (supra), Hon’ble Supreme Court has dealt with the issue of counting ad-hoc service towards seniority. The propositions ‘A’ and ‘B’ in para 44 of this judgment are relevant for the present purpose, which read as below: …8… “(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad-hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.” According to the counsel for the petitioner, claim of the petitioner is covered by proposition ‘B’ whereas, according to the counsel for respondent No.1 the case of petitioner is covered by proposition ‘A’. 12 (I) The case of petitioner would be covered under proposition “B” above. On the date of her initial ad-hoc promotion, all conditions and requirements necessary for her regular promotion existed, but because of some administrative difficulties, procedure prescribed for making regular promotion could not be followed. However, as a matter of fact, at the time of her initial ad-hoc promotion, there was no clear vacancy of ‘UDC’ for her regular promotion, hence, it is clear that her initial promotion was only ad- hoc, made as a stop gap arrangement. If no regular vacancy existed in 1983, it is inconceivable as to how her promotion in 1983 can be …9… termed to have been made according to the rules. Thus, it is clear that the case of petitioner falls in proposition “A”, hence her ad-hoc service cannot be counted towards seniority. (II) Whether petitioner can be placed above respondent No.1 in the seniority and zone of consideration for promotion on the basis of her having acquired eligibility prior to petitioner?. The argument of petitioner that even if she is not entitled to count her ad-hoc service towards seniority, even then her past ad-hoc service has to be counted towards 5 years as UDC is well founded in Union of India Vs. V.N. Bhat, AIR 2004 SC 3200. The Hon’ble Supreme Court has held that on transfer of an employee from one department to another department on request, transferee loses only his seniority and not other benefits flowing from past service. In Dwijen Chandra Sarkar & anr Vs. Union of India and anr AIR 1999 SC 598 (1), in case of employees transferred to another department on administrative grounds, for the purpose of counting 16 years of service prescribed for eligibility under scheme for time bound promotion, the service, both prior to transfer and in transferee department was permitted to be counted for eligibility but not for seniority. In UOI Vs. CN Ponnappan, AIR 1996 SC 764, in the case of transfer of employee from one unit to other on compassionate grounds, though the employee was placed at the bottom of seniority list, but he was held entitled to count his past service for the purpose of eligibility for promotion at transferred place. …10… Therefore, in our considered view there can be no dispute to the proposition that for the purpose of counting 5 years qualifying service as ‘UDC’ for the purpose of acquiring eligibility for further promotion, the period spent by petitioner as ad hoc ‘UDC’ has to be counted. But the issue is as to whether on the basis of such eligibility, he can be placed above the respondent No.1, if on the date of consideration for promotion to the post of Head Clerk both of them satisfy eligibility conditions. 13. Hon’ble Supreme Court in Ajeet Singh & ors Versus The State of Punjab & ors, AIR 1999 SC 3471, has considered the importance of seniority in the matter of consideration for promotion. The relevant paras 22 and 23 are extracted which read as under: “22 Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the “State shall not deny to any person equality before the law or the equal protection of the laws.” Article 16(1) issues a positive command that ‘there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State”. It has been held repeatedly by this court that sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its root from Article 14. The said sub clause particularizes the generality in Article 14 and identifies, in a constitutional sense “equality opportunity” in matters of employment and appointment to any office under the State. The word’ employment’ being wider, there is no dispute that it takes within its fold, the aspect of …11… promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his person right. “Promotion” based on equal opportunity and “seniority” attached to such promotion are facets of fundamental right under Article 16(1); 23. Where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in Article 16(1). For example, if the promotion is by rule of ‘seniority-cum-suitability’, the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he …12… is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious then the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. (There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the senior most person at the basic level is to be considered first and then the others in the line of seniority). That is how right to be considered for promotion and the “seniority” attached to such promotion become important facets of the fundamental right guaranteed in Article 16(1).” 14. In, Union of India & ors Vs. Deo Narain & ors (2008) 10 SCC 84, Hon’ble Supreme Court has held that eligibility and seniority are two quite distinct, different and independent concepts and that a person may be eligible, fit or qualified to be considered for promotion, but may not be necessarily in the zone of consideration on the basis of his seniority. Para 33 of the judgment relevant here is extracted as under:- “33. In our judgment, the ratio laid down by this Court in Ponnappan clearly lays down the principle formulated in the Government of India’s Letter dated 20.5.1980 as also in a subsequent communication dated 23.5.1997 issued by the Ministry of Finance, Department of Revenue. Even otherwise, in our considered opinion, the two concepts viz (i) eligibility, and (ii) seniority are quite …13… distinct, different and independent of each other. A person may be eligible, fit or qualified to be considered for promotion. It does not, however, necessarily mean that he must be treated as having requisite “seniority” for entry in the zone of consideration. Even if he fulfils the first requirement, but does not come within the zone of consideration in the light of his position and placement in “seniority”, and the second condition is not fulfilled, he cannot claim consideration merely on the basis of his eligibility or qualification. It is only at the time when “seniority” cases of other employees similarly placed are considered that his case must also be considered. CAT, in our view, therefore, was not right in applying Ponnappan and in granting relief to the applicants. There is no doubt in our mind that it says to the contrary.” 15. In R.B. Desai & anr Vs S.K. Khanolkar & ors (1997) 7 SCC 54, the Hon’ble Supreme court again dealt with the issue of seniority and eligibility. In paras 9 and 10 of this judgment the Hon’ble Supreme Court observed that:- “9. We are unable to agree this reasoning of the High Court. As noticed above, promotion the post of AFOs is made from the post of RFOs to the extent of 75% of the vacancies. There is no dispute that both the appellants and the first respondent belong to the cadre of RFOs. The only difference between them being that the appellants were promotees in the said cadre while the …14… first respondent was a direct recruit. It is an accepted principle in service jurisprudence that once persons from different sources enter a common cadre, their seniority will have to be counted from the date of their continuous officiation in the cadre to which they are appointed. On facts, there is no dispute that the appellants entered the RFOs cadre on a date anterior to that of the first respondent, therefore, in the cadre of RFOs, the appellants are seniors to the first respondent. However, to be considered for promotion, the rule required the RFOs to acquire the eligibility as provided therein. Therefore, the question for consideration is : can the acquisition of an earlier eligibility give an advantage to the first respondent as against the appellants when an avenue for promotion opens in the cadre of ACFs even though at that point of time the appellants had also acquired the required eligibility. We are of the opinion that if at the time of consideration for promotion the candidates concerned have acquired the eligibility, then unless the Rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of her eligibility. The Rule under consideration does not give any such priority to the candidates acquiring earlier eligibility and, in our opinion, rightly so. In service law, seniority has its own weightage and unless and until the Rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same. 10. The High Court has relied upon the language of Note-1 to the Rules to come to the conclusion that the persons with earlier date of eligibility have a weightage over others solely on the basis that the Note required the list of eligibility to be maintained on the basis of the date of acquisition of such eligibility, hence …15… eligibility has preference over seniority. Our reading of the said note does not persuade us to give any such preference. If the Rule did contemplate such advantage; it should have stated so in specific terms. We also do not see any special objective in giving preference to the date of eligibility as against seniority. Eligibility, of course, has a relevant object but date of acquisition of eligibility, when both competing persons have the eligibility at the time of consideration cannot, in our opinion, make any difference.” 16. After analyzing the above paragraphs, it appears unless the Rules specifically provide to the contrary, acquisition of eligibility by a junior earlier to the senior cannot give any advantage to the junior in the matter of his placement in the zone of consideration for further promotion, if at the time when avenue for promotion to the higher cadre opens, both junior as also senior have acquired eligibility. In such a situation, the senior has to be placed above the junior in the list of eligible candidates while considering them for promotion to the next higher post. Once it is proved that ad-hoc service of petitioner from 1983 cannot be counted towards seniority in the cadre of UDCs, it would be illogical to accept the claim of petitioner to place her above petitioner merely on the ground of her having acquired eligibility prior to respondent No.1, in the combined list of eligible UDCs and Stenographers. As observed by Hon’ble Supreme Court in the judgment of R.B. Desai(supra), in service law, seniority has its own weightage and unless and until the …16… Rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same. 17. In our considered view and in view of above observations, there is no ground to interfere with the judgment of learned Tribunal. Therefore, the present writ petition is dismissed. ( R.B.Misra ), Judge. Dec 3, 2009. ( Surjit Singh ), Judge. (sl)