CWP No. 7439 of 2005 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 5.10.2010 Maha Singh ...Petitioner VERSUS The Haryana State Federation of Consumers Cooperative Wholesale Stores Ltd., Chandigarh and others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Namit Kumar, Advocate for the petitioner Mr.Dheeraj Chawla, Advocate for respondents Permod Kohli, J. (Oral) This petition is taken up for disposal today itself. CM Nos. 1287 and 12566 of 2010 disposed of. The petitioner joined as Assistant Manager in the Haryana State Federation of Consumer Cooperative Wholesale Stores Ltd., Chandigarh (CONFED) in the year 1979. He was given an ad hoc appointment as General Manager and was reverted as Assistant Manager in the year 1988. In the seniority list dated 13.6.04, petitioner's name figures at Sr.No.11 whereas persons mentioned at Sr.Nos.1, 4, 5, 7 and 9 have already been CWP No. 7439 of 2005 (O&M) 2 promoted as General managers and the persons at Sr.Nos.3 and 10 have already retired from service. The petitioner is at Sr.No.4 for promotion to the post of General Manager. The private respondents are working in excess of their quota of direct recruitment and various persons junior to the petitioner have been promoted as General Manager/District Manager ignoring the claim of the petitioner. The petitioner is aggrieved of the impugned orders dated 29.6.2004 and 2.8.2004 (Annexures P-4 and P-5) to the extent it violates the quota of promotees and direct recruits as provided under Rule 9.4 of the Rules. I have heard learned counsel for the parties. The controversy involved in this petition is no more res integra. In the case of D.Ganesh Rao Patnaik and others vs. State of Jharkhand and others, 2005 (10) JT 261, the Hon'ble Supreme Court has observed as under:- “19.The learned counsel for the appellants has also submitted that the appointment of the contesting respondents was not only contrary to Rules but was fortuitous in nature and they can get no advantage of such fortuitous appointment until a substantive vacancy was available in their quota, which in fact became available much later some time in the year 1993-94, which is long after the appointment of the appellants. What is a fortuitous appointment has been explained in a Constitution Bench decision of this Court in Rudra Kumar Sain vs. Union of India (2000) 8 SCC 25. After observing that the Rules in question did not define the terms "ad hoc", "stopgap" and "fortuitous", which are in frequent use in service jurisprudence, the Court referred to several dictionaries. The meaning given to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation, such appointment obviously would not continue for a reasonably long period. In CWP No. 7439 of 2005 (O&M) 3 Black's Law Dictionary the expression "fortuitous" means "occurring by chance", "a fortuitous event may be highly unfortunate". It thus indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. In Oxford dictionary the meaning given to the word "fortuitous" is happening by accident or chance rather than design. In our opinion it will not be proper to hold that the promotion of the contesting respondents was fortuitous as contended by learned counsel for the appellants. It cannot be said that the contesting respondents were promoted by accident or by chance. Their promotion order was passed as there were vacancies to the posts of Additional District and Sessions Judges, though in the quota or direct recruits, but as no recruitment from the said channel had been made for a long time and sufficient number of candidates were not available, the vacancies were filled in by giving promotion to members of Bihar Civil Service (Judicial Branch). If promotion orders had not been passed and the posts had not been filled in, the judicial work in the districts would have suffered. However, it is clear that having regard to the various orders passed on the judicial side by the Patna High Court and the legal position being well settled that the temporary posts have also to be counted for determining the one-third quota of direct recruits, the promotion given to the contesting respondents was not in accordance with law. Instead of taking the harsh step of rescinding their order of promotion the Patna High Court, on the administrative side, took the decision to treat them promoted against subsequent quota of promotees. Therefore, the contesting respondents can under no circumstances claim seniority over the appellants and the view to the contrary taken by the Jharkhand High Court on 29.8.2002 on administrative side and also in the judgment and order dated 1.4.2003, which is the subject-matter of challenge in the present appeal, is wholly erroneous in law. 21. Shri Vijay Hansaria, learned senior counsel for the contesting respondents, has also submitted that in the State of Bihar the quota rule had CWP No. 7439 of 2005 (O&M) 4 completely broken down as after 1979 no appointments by direct recruitment were made for almost 12 years and in such circumstances the dispute of inter se seniority between the appellants and the contesting respondents cannot be decided by applying the principle underlying Rule 6, which provides for quota in the matter of appointment to Bihar Superior Judicial Service. In support of this contention learned counsel has referred to a Division Bench decision of Patna High Court rendered in Bihar Judicial Services Association vs. The State of Bihar 1998 (3) PLJR 21. After observing that unfortunately after the year 1979 direct recruits were not being appointed regularly with the result the number of posts to be filled up by direct recruits were accumulated and they were filled up in one year the Bench made a casual observation that the quota rule had broken down and to that extent the promotees benefited in the earlier years as they were promoted while no direct recruitment took place. It may be noted that the court did not strike down Rule 6 of the Rules nor held it to be ultra vires. There is no direction in the judgment that henceforth quota rule should not be followed. Learned counsel has also referred to a decision of this Court in Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra (1990) 2 SCC 715 and in particular drawn our attention to the opening part of paragraph 23 of the report where it is said, "Mr. Tarkunde is right that the rules fixing the quota or the appointees from two sources are meant to be followed. But if it becomes impractical to act upon it, it is no use insisting that the authorities must continue to give effect to it. There is no sense in asking the performance of something which has become impossible..................." Reference has also been made to sub-paragraphs (D), (E) and (F) of paragraph 47 of the reports, where it is said that when appointments are made from more than one source, it is permissible to fix the ratio for recruitment from different sources and if rules are framed in this regard, they must ordinarily be followed strictly. It is also said that if it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the interference is irresistible that the quota rule has broken down. We do not think that the authority cited by the learned counsel can render any assistance to him. That the quota rule had broken down is neither pleaded nor demonstrated. Similarly, no material has been placed on record to show that it had become impossible to adhere to the quota rule contained in Rule 6 of the Rules. If no direct recruitment had been made after the year 1979 in the State of Bihar, it was not on account of the fact that it was impossible to do so. At any rate after the decision in K.P. Verma's case necessary steps were taken for making appointment by direct CWP No. 7439 of 2005 (O&M) 5 recruitment. The contesting respondents were appointed long after the publication of the merit list of the examination conducted for making direct recruitment and it does not lie in their mouth to say that the quota rule had broken down or that their promotion though made beyond the quota fixed for promotees, yet the same should be treated not only perfectly valid but also in a manner so as to give them the benefit of seniority over the direct recruits. The other case cited by Shri Vijay Hansaria is Rudra Kumar Singh vs. Union of India (2000) 8 SCC 25, is clearly distinguishable on facts as the observations made here have to be seen in the light of the fact that direct recruits of the year 1980 were claiming seniority over those who had been given promotion four years earlier in the year 1976. 22. Shri Amarendra Sharan, learned senior counsel for the appellants, has also submitted that both the appellants and the contesting respondents were members of Bihar Superior Judicial Service and dispute of their inter se seniority had been settled by the Patna High Court on the administrative side vide its decision dated 4.9.1996 whereunder appellants were declared to be senior to the contesting respondents. In such circumstances it was not open to the Jharkhand High Court to reopen the issue and take a contrary view on 29.8.2002 whereunder the contesting respondents were declared to be senior to the appellants. More so when the decision taken by the Patna High Court on 4.9.1996 on the administrative side had already been challenged by filing a writ petition to which respondent Nos. 9 and 11 were parties and the writ petition was still pending. In our opinion, as a principle of law, there is no legal bar or prohibition against an administrative body in seeking to review its earlier decision provided the parties likely to be affected by such a decision are afforded an opportunity of hearing. In the present case the Jharkhand High Court did give notice to the appellants and they were given an opportunity to make representations. Therefore, as an abstract principle of law, it cannot be said that the decision taken by the Jharkhand High Court on 29.8.2002 suffers from any legal infirmity. However, having regard to the background of events and the legal position emerging from the fact that Rule 6 of the Rules prescribes a quota and for determining the quota the temporary posts have also to be counted and taken into consideration and further the orders passed on the judicial side by the Patna High Court prior to the appointment of the contesting CWP No. 7439 of 2005 (O&M) 6 respondents the inevitable conclusion is that the contesting respondents cannot claim seniority over the appellants.” In view of the above, this petition is disposed of with a direction to respondents to consider the claim of the petitioner for promotion in the light of the aforesaid observations of Hon'ble Supreme Court within three months from the date a certified copy of this order is received by the competent authority. (PERMOD KOHLI) JUDGE 5.10. 2010 MFK