CIVIL WRIT PETITION NO.18654 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 18, 2009 Karan 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. Jai Vir Yadav, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner has made a claim for fixing the seniority over the private respondents, who are junior to him, which prayer has been declined by the respondents. Initially, the petitioner has joined Industries Department of the Government as Inspector/Manager on 10.10.1977. He was promoted as Industrial Promotion Officer on 10.2.1986. On 11.12.1993, Haryana Public Service Commission (hereinafter referred to as ”the Commission”) advertised two posts of Functional Manager, one out of which was CIVIL WRIT PETITION NO.18654 OF 2007 :{ 2 }: reserved for Scheduled Caste and another for Backward Class category. The petitioner, being Scheduled Caste applied for being appointed to the said post. The Commission selected and made recommendation for appointment of the petitioner as Scheduled Caste and one Kuldeep Singh in the category of Backward Class. Though Kuldeep Singh was appointed but the petitioner was denied appointment. The petitioner filed a representation against the same. He followed it up by filing CWP No.13315 of 1995 seeking direction for the respondents to appoint the petitioner to the post of Functional Manager. The writ petition was disposed on 27.2.1996 and ultimately the petitioner was given appointment on 15.7.1996. Bhagmal and Rohtash Kumar, Respondent Nos.3 and 4 respectively, were selected on the basis of the recommendation made by the Commission on 1.3.1995. They were appointed as Functional Manager but after the date of selection of the petitioner for the said post. Respondents circulated the seniority of the Functional Manager on 21.8.2000. The petitioner was shown at Sr.No.48 whereas respondent Nos.3 and 4 were shown at Sr.Nos.45 and 46. The petitioner accordingly represented against the same but no action was taken. Another seniority list was circulated on 7.12.2004, against which the petitioner filed a further representation. This was declined on 5.10.2007, which order is now impugned by the petitioner through the present writ petition. Respondents would resist the claim of the petitioner on the ground that the petitioner had earlier also applied for this post in pursuance to the advertisement issued in the year 1987-88 but was not appointed as he did not fulfill the condition of experience. Instead CIVIL WRIT PETITION NO.18654 OF 2007 :{ 3 }: one Jeet Singh was selected and appointed as Functional Manager. The petitioner had then also filed a writ petition but the same was dismissed on 5.12.1989. It is accordingly stated that he is estopped from filing the present writ petition. So far as the present appointment is concerned, it is stated that the petitioner was recommended by the Commission but he was not found fully eligible for the post of Functional Manager. It is stated that in view of the liberalization of the new Industrial Policy by the Central Government, a need was felt to reassess the requirement and it was decided that the Government did not require another candidate in place of the petitioner. The petitioner had then filed CWP No.13315 of 1995, which was disposed of with the observation that Jit Singh, who was appointed in the year 1988 was similarly situated as was the case of the petitioner and was having a similar experience but still was treated to have the requisite experience and was appointed. The respondents had taken a stand in the said writ petition that Jit Singh was appointed by an error and show cause notice was being issued to him for his reversion. It was, however, conceded that in case the respondents came to the conclusion that Jeet Singh's appointment was valid, then the petitioner, who statedly possessed the same experience, will also be given the appointment. The petitioner has, thus, been appointed. In regard to the claim of the petitioner for his seniority over respondent Nos.3 and 4, it is stated that he was not in service when respondent Nos.3 and 4 were appointed as Functional Manager. His prayer accordingly was declined. I have heard the counsel for the parties. CIVIL WRIT PETITION NO.18654 OF 2007 :{ 4 }: Much of the justification given by the respondents about the ineligibility of the petitioner is meaningless, now once he has been appointed. The undertaking which the respondents gave before this Court in response to the earlier writ petition filed by the petitioner, would clearly show that the action of the respondents in not considering the petitioner eligible was not justified. Thus, his appointment as a Functional Manager is not an issue, which was required to be raised in the reply. The petitioner has simply claimed seniority over respondent Nos.3 and 4 on the ground that he was selected prior to the said respondents and, thus, his appointment should relate back to the date of his selection and not the appointment which was denied to him without justification. Apparently, this may sound a bit far fetched but the counsel for the petitioner has based this claim on the basis of the provisions of Rule 11 of the Haryana Industries (Group A) Services Rules, 1986 (hereinafter referred to as “the Rules”). This Rule regulates the inter- se seniority of the members of the service, which is required to be determined by length of continuous service on any post. This, however, is subject to certain proviso, one of which is that in case of members appointed by direct recruitment, the order of merit determined by the Commission, shall not be disturbed in fixing the seniority. The provisions of Rule 11 are reproduced below:- “11. Seniority inter-se of the members of the service shall be determined by the length of continuous service on any post in the service: Provided that where there are different cadres in the service, the seniority shall be determined separately for CIVIL WRIT PETITION NO.18654 OF 2007 :{ 5 }: each cadre: Provided further that in the case of members appointed by the direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority: Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follow:- a. a member appointed by direct recruitment shall be senior to a member appointed by promotion or by transfer: b. a member appointed by promotion shall be senior to a member appointed by transfer; c. In the case of members appointed by promotion or by transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred; and (d) in the case of members appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a member, who was drawing a higher rate of pay in his previous appointment, and if the rate of pay drawn are also the same, then by the length of their service in the appointments, and if the length of such service is also the same, the older member shall be senior to the younger member.” It is on the basis of a proviso for fixing the seniority of CIVIL WRIT PETITION NO.18654 OF 2007 :{ 6 }: direct recruits which is required to be determined on the basis of the merit fixed by the Commission that the petitioner would seek fixing of his seniority above respondent Nos.3 and 4. His claim is more on the basis of fixing his seniority as per the merit determined by the Commission, rather than fixing his seniority vis-a-vis respondent Nos.3 and 4. The petitioner was selected by the Commission and was recommended for appointment. He was not given appointment for which he had to file a writ petition before this Court. He has, thus, been appointed. The petitioner was denied appointment without any fault on his part and once he has been held entitled to appointment, he can pray for fixing his seniority by appointing him retrospectively on the basis of the Rules. The Rule of fixing seniority by continuous length of service is subject to proviso that in respect of those members who are appointed directly, the order of merit shall determine the fixing of seniority. The appointment is essential for determining seniority. Once the petitioner was considered eligible for appointment and has been so appointed, he may have to ask for fixing his seniority on the basis of a merit as determined by the Commission. Thus, the order rejecting the claim of the petitioner through Annexure P-6 only on the ground that he was not actually in service may not appear proper and justified. Though the petitioner has not asked for fixing his seniority by giving him appointment from back date when he was due for appointment but he has prayed for grant of any other relief to which the petitioner is found entitled. The State counsel would oppose this prayer on the ground that he could have asked for this in his earlier writ and, thus, would be barred to seek the same. The petitioner earlier was only CIVIL WRIT PETITION NO.18654 OF 2007 :{ 7 }: seeking appointment. Issue of seniority has arisen subsequently. The petitioner, however, could be expected to be vigilant to come in time and make proper prayer. Still the claim of the petitioner would deserve consideration to see if his appointment is to relate back to the date other from his batch were appointed on the basis of merit. The writ petition is allowed to this extent. Order, Annexure P-6, is set-aside and the respondents are directed to consider the claim of the petitioner to see if his seniority is to be fixed on the basis of merit determined by the Commission in view of Rule 11 of the Rules. The respondents may, therefore, consider the case of the petitioner by affording opportunity of hearing to him, if required, and then pass an order afresh. August 18,2009 ( RANJIT SINGH ) khurmi JUDGE