CIVIL WRIT PETITION NO.5803 OF 1988 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 13, 2009 Samarvir Singh .....Petitioner 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. C. M. Chopra, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner has filed this writ petition, challenging his seniority vis-a-vis the seniority assigned to respondent No.3, Dhan Singh. The petitioner, who by now has retired, would press this petition for re-fixation of his seniority and thereafter grant of consequential benefits to him of promotion etc. over Dhan Singh. The counsel pleads that Dhan Singh was shown senior to him in violation of the instructions on the subject. The petitioner was appointed as a Master on 25.9.1956 in a private school named Rajput High School, Bhondsi, District CIVIL WRIT PETITION NO.5803 OF 1988 :{ 2 }: Gurgaon. He was promoted as Head Master on 4.9.1961 and was confirmed as such. In the year 1961, Punjab Government had decided to take over the privately managed schools and Rajput High School, Bhondsi, where the petitioner was working was, thus, taken over w.e.f. 27.11.1961, alongwith the staff. It was decided that Headmaster inherited from the Nationalised schools having put in 8 years service should be integrated with the old Headmaster of the Government Schools from the date of their approval by the Punjab Public Service Commission (hereinafter referred to as “the Commission”). This condition is contained in Annexure P-7. Their inter-se seniority, as drawn by the Commission was to remain intact. The Headmaster, who had put in less than 8 years service, was to be integrated with the Headmasters of the Government Schools from the date they completed 8 years service. It was specifically provided in these instructions that there will be no inter-se seniority in their cases. Apparently it would mean that inter-se seniority amongst the Headmasters of the Schools, which were taken over, was not to be determined and they were required to be integrated with the Cadre of Headmasters of the Government Schools. It was also decided that no Headmaster would be adjusted on the lower Post. In the year 1966, the State of Haryana was carved out and the petitioner alongwith some other Head masters was allocated to Haryana State. The petitioner, who was working as Master, was appointed as officiating Head Master on 21.11.1966 as is noted in Annexure P-10. The Government issued gradation list as it stood on 1.4.1972 of all the Head Masters who were assigned to the State of Haryana. As per this, Dhan Singh, respondent No.3, who is shown CIVIL WRIT PETITION NO.5803 OF 1988 :{ 3 }: promoted w.e.f 16.3.1964, was shown at No.66 in the seniority list whereas the petitioner is shown at seniority list No.120 as having been promoted on 31.12.1966. Subsequently, the State of Haryana also issued a circular on 23.8.1973 for regulating the fixation of seniority of various employees of those schools which were taken over and were assigned to Haryana State. As per these instructions, those Head Masters/Head Mistresses. who have necessary educational qualification and experience at the time of taking over and whose candidature was approved by the Commission/S.S.S.Board was allowed seniority from the date of taking over of the school. However, those Head Masters/Head Mistresses, who possessed the necessary qualification but did not have the desired experience at the time of taking over the school, were allowed the seniority from the date of completion of such experience, provided their candidatures was approved by the Commission/S.S.S.Board. A copy of these instructions is annexed with the petition as Annexure P-13. In view of the instructions, Annexure P-13, and due to some representations received, the seniority list was revised and was re-fixed on 9.8.1974 vide Annexure P-14. The petitioner was placed between Sr.No.64 and 65 whereas respondent No.3 was shown between 64 and 65 but junior to the petitioner with date of seniority being 26.9.1964 whereas the petitioner was assigned seniority w.e.f. 25.9.1964. As per this seniority list, the petitioner was placed senior to Dhan Singh, respondent No.3. Dhan Singh, Respondent No.3, being aggrieved against this decision filed Civil Writ Petition No.778 of 1976, which was allowed by this Court on 15.2.1983 and the seniority list fixing CIVIL WRIT PETITION NO.5803 OF 1988 :{ 4 }: the seniority of Dhan Singh, respondent, Shri K.C.Parbhakar, G.S.Paul, Gugan Singh and Samarvir Singh (petitioner) was set- aside. The respondent department was directed to determine the seniority afresh after hearing Dhan Singh, (respondent No.3). The seniority list earlier issued was accordingly withdrawn on 18.5.1983 and original position restored without prejudice to the action that may be taken on later for re-fixing the seniority in accordance with the directions of the High Court. Order in this regard is at Annexure P-18. The petitioner thereafter represented on 24.8.1983, seeking intimation of his newly allotted seniority as it was to be fixed as per the directions of the High Court. The petitioner followed it up by pleading that his seniority be fixed from the date of taking over of the School and the condition of 8 years experience had no legal force and would not apply to his case. The petitioner further represented on 9.1.1988 to assign him seniority w.e.f. the date of taking over of the School i.e. 27.11.1961 as Head Master. Ultimately, a detailed order was passed, fixing the seniority of Dhan Singh, respondent. On the basis of direction passed by this Court for re-fixing the seniority, the department had issued a fresh seniority list by restoring the seniority of respondent No.3 at Sr.No.66 in the seniority list of Headmasters as it stood on 1.4.1972 and the petitioner has now been shown at Sr.No.120 and, thus, much junior to respondent No.3. This action is stated to be arbitrary and in violation of the policy instructions. The petitioner would urge that the seniority of Dhan Singh, respondent No.3, as fixed with effect from 16.3.1964, has been wrongly assigned from the date of approval of his candidature. It is also state that on the said date he did not fulfill the condition of 8 CIVIL WRIT PETITION NO.5803 OF 1988 :{ 5 }: years experience. The learned counsel for the petitioner would refer to the instructions, Annexure P-13, to say that seniority, as per this, is to be assigned from the date of taking over of the school and it should not be bound by the condition of approval by the Commission. It is on this basis contended that the action of the respondents in fixing the seniority is illegal and arbitrary, besides being in violation of the policy instructions, Annexures P-7 and P-13. Notice of motion was issued. When no written statement was filed, the writ petition was admitted on 15.9.1988. Subsequently, reply has been filed. In the reply, it is stated that pursuant to the direction issued by this Court, the case was re-examined. Earlier seniority assigned to respondent No.3 as Headmaster from the date the school was taken over, was changed and has now been assigned revised seniority from the date of approval of his name on the post of Headmaster by the Commission. Similarly, the petitioner has also now been assigned seniority as Headmaster in terms of the conditions laid down in the policy instructions from the date it was approved by the Commission i.e. 21.11.1966. It is here that the grievance of the petitioner would start. The petitioner would urge that the seniority was rightly assigned as per the instructions from the date the school was taken over and that it would be unfair to grant seniority to the post of Headmaster from the date the approval wans granted by the Commission because in some cases the Commission may take inordinately long time to grant approval whereas it may grant such approval immediately in respect of another. CIVIL WRIT PETITION NO.5803 OF 1988 :{ 6 }: Mr.Rathi, however, would support the decision taken on the basis of order passed by this Court. While setting-aside the earlier seniority, the learned Judge while deciding the said writ petition, took note of the stand taken by the Government in Para 9 of the written statement. In this para, it has been admitted that the petitioner was appointed as Headmaster on 6/14.4.1964, consequent upon his approval by the Commission. It was also noticed that the petitioner therein (respondent No.3 Dhan Singh) had been shown senior to some of the respondents in the said writ petition in the seniority list issued prior to the implementation of the decision of the Government, which was dated 18.7.1973. It is thereafter the seniority was re-arranged according to the instructions, which were annexed with said petition as Annexure P-2. The Court found that this could not have been done without affording opportunity of hearing to respondent Dhan Singh. The order was set-aside. Now the impugned order is passed, restoring the earlier position as per the seniority maintained as on 1.4.1972. Reading of Annexure P-13, which are instructions issued relating to seniority, appear to be unambiguous. The approval by the Commission/S.S.S.Board is a condition which is applicable in both the eventualities visualized in the instructions. In one case Headmasters and Headmistresses are to be assigned seniority from the date of taking over of the school if they had the necessary educational qualification and experience. In this case also, approval by the Commission was a condition precedent. Similarly those who did not have the necessary experience, were to be assigned seniority from the date of completion of such experience subject to the proviso CIVIL WRIT PETITION NO.5803 OF 1988 :{ 7 }: that their candidatures was approved by the Commission. Thus, approval by the Commission in any event was an essential requirement as laid down in Annexure P-13. Interpreting this provision, the petitioner as well as respondent No.3 have been assigned seniority from the date their names were approved by the Commission. The name of the petitioner was approved by the Commission on 21.11.1966. The name of respondent No.3 was so approved by the Commission on 16.3.1964. Reading of the instructions, Annexure P-13, would clearly bring out that the seniority is to be assigned from the date of taking over of the School but subject to approval by the Commission. Thus, approval by Commission is an essential condition for assigning seniority. The instructions are not under challenge. The counsel is contesting the method of assigning seniority without raising any challenge. In the absence of challenge to the instructions, the manner of assigning seniority on the basis of approval of promotion by Commission can not be faulted. The counsel for the petitioner has rather based his case on these instructions. Still, he would submit that condition for approval by Commission can not be insisted upon being unfair and the seniority should be assigned from the date of taking over of the School. In the absence of any challenge to the instructions, this line of submission made by learned counsel can not be accepted. Once the instructions are in force and are being relied upon, then the requirement of approval by the Commission can not be ignored and would be essential condition. On the basis of these instructions, the respondents have correctly assigned seniority to the petitioner as CIVIL WRIT PETITION NO.5803 OF 1988 :{ 8 }: well as to respondent No.3. No case for interference in the seniority, as determined, is made out. The writ petition is accordingly dismissed. August 13, 2009 ( RANJIT SINGH ) khurmi JUDGE