C.W.P. No. 10416 of 2009 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 10416 of 2009 Date of Decision: Aug. 23,2011 Gursharan Singh ........................................ Petitioner Versus The Excise & Taxation Commissioner, Punjab and others ................................... Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. J.S.Bhatti, Advocate for the petitioner. Mr. Puneet Gupta, Addl. A.G. Punjab. Mr. G.S.Thind, Advocate for respondents No. 2 to 4. ... RITU BAHRI, J. Petitioner is seeking a writ of Mandamus directing the respondents to consider the name of the petitioner for the post of Excise & Taxation Officer on merit-cum-seniority and seniority-cum-merit in preference to respondents No. 2, 3 and 4 who were junior to the petitioner and were being considered for the said post. The petitioner joined as Clerk in the Jalandhar C.W.P. No. 10416 of 2009 [ 2 ] Division and his seniority was at Sr. No. 333. The seniority number of respondents No. 2 to 4 is 346, 360 and 361. Petitioner passed his Assistant Grade Examination in June 1987 (Sixth Batch). Respondents No. 2 to 4 passed their Assistant Grade Examination in December, 1986 (Fifth Batch). After passing the Assistant Grade Examination further promotion to the post of Senior Assistant is governed by instructions dated 31.1.1989 issued by the Punjab Government, Department of Personnel and Administration Reforms (PP.II Branch) (Annexure P-1). Paras No. 2 and 3 of these instructions are as under:- “2. There are two situations where interpretation of Assistant Grade Examination Rules 1984 is involved. First situation is where a vacancy for promotion is available. In this situation a clerk who has passed the Assistant Grade Examination within first five chances is promoted, his interse seniority as Clerk will be maintained with the officials who have passed the Assistant Grade Examination within the first five chances. However, he will rank senior as Assistant to those clerks who passed the examination in 6th 7th and 8th chance and are promoted later on. 3. In the second situation, when there is no post available for promotion to the post of Assistant, C.W.P. No. 10416 of 2009 [ 3 ] but a group of clerks are available who have passed the Assistant Grade Examination in the 5th 6th 7th and 8th chance. The only criteria to be adopted is that he should have passed the examination and is eligible for promotion. In this situation the interse seniority of clerks will be mentioned in the matter of promotion to the post of Assistant.” These instructions came up for consideration before the Supreme Court in Saroj Rani and Another v. State of Punjab in which certain directions were issued for fixing the seniority of Senior Assistants. In compliance of the judgment of the Supreme Court, vide order dated 25.10.2000 the Excise & Taxation Commissioner has given the petitioner deemed date of seniority with effect from 12.7.1988 as Assistant. Precise grievance of the petitioner is that he had completed the Assistant Grade Examination in June 1987 in the Sixth chance. He was senior to respondents No. 2 to 4. Hence, he should have been promoted as Senior Assistant on 30.1.1989 as he was eligible to be promoted after completing the Assistant Grade Examination in Sixth chance. He was ignored because he had not passed the Assistant Grade Examination in the first five chances. The respondents were promoted as Senior Assistants on 30.1.1989. C.W.P. No. 10416 of 2009 [ 4 ] Thereafter, appointed as Taxation Inspector on 30.7.1991. Once the petitioner has been given a deemed date of seniority with effect from 12.7.1988 as Assistant keeping in view the judgment of the Supreme Court in Saroj Rani's case (supra) he is entitled to the consequential benefit of appointment as Taxation Inspector with effect from 31.7.1991. It is not a case where due to pendency of any litigation of seniority that petitioner could not get promotion. In the facts of the present case, petitioner was senior to respondents No. 2 to 4 as Clerk. He cleared his departmental Assistant Grade Examination in June 1987. The respondents had cleared this examination in March 1987 (Fifth chance). They were promoted as Assistant Accountants on 13.1.1989. On this date the petitioner was also eligible and being senior as a Clerk he had preferential right to be promoted as Senior Assistant in 1989 and then as Taxation Inspector in the year 1991. The Supreme Court decided this issue in favour of the petitioner in Saroj Rani's case (supra) on 24.8.1999. Vide order dated 25.10.2000 the Excise & Taxation Commissioner had given deemed date seniority with effect from 12.7.1988. The date of seniority of the respondent is as under:- “Name of the official Date of Seniority as Assistant Kulbhushan Gupta 16.9.1988 Shanker Lal 21.11.1994 Ramesh Chander 21.12.1994” C.W.P. No. 10416 of 2009 [ 5 ] Petitioner approached this Court by filing C.W.P. No. 14323 of 2008 which was disposed of on 14.8.2008 (Annexure P5) by giving a direction to the respondents to decide the representation within a period of three months by passing a speaking order. Instead of deciding the representation the respondents proceeded to recommend the names of respondents No. 2 to 4 who were junior to the petitioner for promotion to the post of Excise & Taxation officers by communication dated 23.6.2009 (Annexure P9). Mr. J.S.Bhatti, learned counsel for the petitioner, has argued that the issue regarding fixation of seniority was decided by the Supreme Court in Saroj Rani's case (supra) 24.8.1999 and thereafter petitioner was given his deemed date of seniority from 12.7.1988 as Assistant. The petitioner cannot be deprived the benefit of seniority for further promotion on the ground of delay. It is not disputed that all the respondents were junior to the petitioner as Clerk in Jalandhar Division. Petitioner has passed his Assistant Grade Examination in June 1987 whereas respondents have passed this Examination in March 1987. At the time of promotion in 1989, petitioner and respondents were eligible but petitioner was ignored only on the ground that he had cleared the Examination in Sixth chance. Petitioner being senior and eligible on 30.1.1989 could not be ignored for promotion on C.W.P. No. 10416 of 2009 [ 6 ] the ground that he had completed the Examination in June 1987. After getting the benefit of seniority with effect from 12.7.1988 the consequential benefit of getting the promotions as Taxation Inspector from 31.7.1991 should have been given to the petitioner. Petitioner has been deprived to work on the post of Taxation Inspector for no fault. Mr. G.S.Thind, learned counsel for respondents No. 2 to 4, has argued that respondents No. 2 to 4 were appointed as Excise & Taxation Inspectors in the year 1991 and their appointment cannot be challenged after a gap of 18 years in view of the Supreme Court judgment in B.S.Bajwa & Another v. State of Punjab & Others JT 1998 (1) S.C. 57. The petitioner has been appointed as Excise & Taxation Inspector on 19.4.2000 by way of transfer and respondents were appointed as such on 31.7.1991. As per Rule 9 of the Punjab State Excise Subordinate Services Rules 1943 the seniority is to be determined from the date of their substantive appointment. The petitioner who was appointed in the year 2000 cannot claim seniority/appointment on a date on which he was not even part of the cadre. Prior to 5.6.1996 the seniority of Clerks was maintained at Divisional level. After this date, it was maintained at State cadre. Mr. Puneet Gupta, Additional Advocate General, C.W.P. No. 10416 of 2009 [ 7 ] Punjab, has argued that petitioner has prayed for seniority as Taxation Inspector from 1991 whereas the seniority under the Punjab State Excise Subordinate Services Rules 1943 has to be fixed from the date of joining the said post. The petitioner became part of this cadre in the year 2000. Even though by order dated 25.10.2000 he has been given the deemed date of seniority as Assistant from 12.7.1988. He cannot be given the benefit of seniority from a separate date on which he had not joined the post of Taxation Inspector i.e. 1991. Assuming that the seniority of the petitioner has now been rightly fixed in view of Saroj Rani's case (supra) but the benefit of seniority on the basis of Taxation Inspector cannot be given with effect from 1991 as he had not joined and worked on this post in the year 1991. While rejecting the representation of petitioner by passing the order (Annexure R3) it has been observed that petitioner had accepted the proficiency step-up of 4 years having accepted his appointment on 19.4.2000 and disturbing his seniority after a long gap of 7 years and his claim for giving seniority has been rejected on the ground of delay. Heard learned counsel for the parties. The undisputed facts are that the petitioner has cleared his Assistant Grade Examination in June 1987. Respondents, who were junior to him, had cleared this examination in March 1982 and had been given the C.W.P. No. 10416 of 2009 [ 8 ] promotion on 13.1.1989 whereas the petitioner had been ignored on the ground that he had cleared this Examination in the sixth chance. The seniority issue was concluded by Supreme Court in view of Saroj Rani's case( supra) and the Excise & Taxation Commissioner in compliance of the judgment of the Supreme Court gave petitioner deemed date of seniority from 12.7.1988 as Assistant. The respondents have not disputed that he was senior to the private respondents in the cadre of Senior Assistant. However, while being promoted to the post of Taxation Inspectors which is a separate cadre governed under the Rules 1943 the petitioner cannot be given the benefit of retrospective promotion as he was not member of the cadre and service in 1991. Even though the Department has declined to interfere in the seniority which has attained finality way back in the year 1991, the Supreme Court in B.S.Bajwa's case (supra) has held that in service matter the seniorities should not be re-opened after a lapse of reasonable time. The Supreme Court has observed as under:- “During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystalised which ought not to have been re- opened after the lapse of such a long period. At C.W.P. No. 10416 of 2009 [ 9 ] every stage the others were promoted before B.S.Bajwa and B.S.Gupta and this position was known to B.S.Bajwa and B.D.Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the questions of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition.” The Supreme Court in K.R.Mudgal v. R.P.Singh (1986) 4 SCC 531 has restricted challenge to seniority within a period of 2 to 3 years as reasonable period for challenging the same. The Supreme Court in a recent judgment in Shiba Shankar Mohapatra and others v. State of Orissa and others (2010) 12 Supreme Court Cases 471 has considered the aspects of limitation, delay and laches in filing the writ petition in respect of inter se seniority of employees and has also considered the law laid down by the Supreme Court in State of M.P. v. Bhailal Bhai AIR 1964 SC 1006 and has come to a conclusion that fence sitters can not be allowed to raise the validity of an order after its conclusion, more so C.W.P. No. 10416 of 2009 [ 10 ] in case of a seniority list which remains in existence for 3 to 4 years unchallenged. If some one agitates the issue beyond this period, it is a good ground to dismiss the same on the ground of delay and laches without entering into the merits of the case. The writ petition is dismissed. 23.8.2011 ( RITU BAHRI ) Rupi JUDGE