IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13130 of 1991 Date of decision: 31st August, 2010 Sher Singh … Petitioner Versus State of Punjab and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.K. Malik, Senior Advocate with Mr. Kohal Sharma, Advocate for the petitioner. Mr. J.S. Puri, Additional Advocate General, Punjab for respondents No.1 and 2. None for respondent No.3. KANWALJIT SINGH AHLUWALIA, J. Petitioner-Sher Singh is aggrieved against the action of the respondent-Labour and Employment Department, Punjab, whereby respondent No.3-Malkiat Singh was made senior to him. Thus, in the present writ petition, the petitioner has sought quashing of impugned orders (Annexures P-13, P-14 and P-18), whereby the seniority was re- determined and as a consequence thereof, the petitioner was reverted from the post of Assistant Employment Officer. Whether respondent No.3-Malkiat Singh was senior to the petitioner or not, is an issue upon which the Court has to adjudicate. From the pleadings available, facts in brief can be culled out as under: Civil Writ Petition No.13130 of 1991 Petitioner and respondent No.3, both belong to Scheduled Castes category and the dispute is regarding their inter-se seniority for the post reserved for the Assistants in the Department, for which Subordinate Services Selection Board, Punjab (hereinafter referred to as, ‘the Board’) had made recommendation in the year 1978. It will be pertinent to notice that the petitioner was appointed as a Clerk in the Department of Employment, Punjab on 29th August, 1969. He improved his education and obtained a degree of graduation and thereafter, competed along with respondent No.3 for the post of Assistant against direct quota reserved for Scheduled Castes category. The Secretary of the Board issued a communication (Annexure P-1) dated 19th July, 1978 and selected 16 candidates in the order of merit. Respondent No.3- Malkiat Singh was placed at serial number 3 in order of merit, whereas the petitioner was placed at serial number 10. It is not disputed that in the merit list, respondent No.3 was placed above the petitioner. The Board allocated Department of Excise and Taxation to respondent No.3, whereas the petitioner was recommended for appointment as an Assistant in the Employment Department. It has been averred by the petitioner that Malkiat Singh made a request to the Board for change of his posting from the Excise and Taxation Department to the Employment Department. His request was accepted and he was sent to the Employment Department. Petitioner has heavily relied upon the following condition specified by the Board, when the department of an incumbent is to be changed: “The recommendation of the candidate is made at his own request by way of diversion, therefore, the seniority of this candidate will be fixed below the candidates recommended earlier than him.” 2 Civil Writ Petition No.13130 of 1991 Whereas, case of respondent No.3 is that when he reached Excise and Taxation Department, no post of Assistant was available, therefore, he had to revert back to the Board for allocation of a new department. Thus, there was no request on his part but the circumstances were such that he was made to join the Employment Department and therefore, his posting in the Employment Department was not to be considered on his request but a necessity to adjust him according to the merit list prepared by the Board. The petitioner has pleaded that on the recommendation of the Board to the Employment Department, on a representation made, a seniority list (Annexure P-6) was drawn on 13th January, 1983, in which he was placed at serial number 52 and respondent No.3-Malkiat Singh at serial number 66. On the basis of seniority list (Annexure P-6), the petitioner was promoted as Superintendent Grade-IV on 23rd December, 1983. On 8th September, 1986, the Government issued instructions (Annexure P-8), wherein it was stated that where an employee is recommended to some other office for regular absorption by the Board, but is allowed to remain in the parent department in the interest of work or on the request of the concerned employee, then his seniority for regular absorption is to be reckoned with reference to the date of Board’s original recommendation, but where the candidate so appointed in a department, to which his name was recommended, afterwards joins another department, then his seniority is to be assigned from the date he joined that department. Thus, the petitioner contends that respondent No.3- Malkiat Singh was to be given seniority from the date he joined the Employment Department, after the Excise and Taxation Department had refused to absorb him there. Case of the petitioner is that the representation given by respondent No.3-Malkiat Singh, in view of the instructions (Annexure 3 Civil Writ Petition No.13130 of 1991 P-8), was rejected on 28th August, 1987 vide order (Annexure P-11) and on the basis of seniority, which was prevailing, the petitioner was promoted to the post of Assistant Employment Officer on 11th June, 1987 vide order (Annexure P-12). After rejection of the representation vide order dated 28.08.1987 (Annexure P-11), respondent No.3-Malkiat Singh filed a civil suit. The Civil Court vide its judgment dated 5th October, 1989 (Annexure P-16) decreed the suit and issued mandatory injunction that the seniority of respondent No.3-Malkiat Singh be fixed according to the merit fixed by the Board as per its letter dated 19th July, 1978 (Annexure P-1). The Civil Court returned the following findings: “27. It was argued by the Ld. counsel for the plaintiff that the plaintiff is entitled for mandatory injunction because according to the seniority list prepared by the S.S.Board, the plaintiff was in the merit at serial No.3, whereas Sher Singh was placed at serial No.10. He further contended that this merit fixed by the S.S.Board cannot be disturbed. This contention has force. Copy of letter Ex.P1 shows that S.S. Board has placed the plaintiff at Serial No.3 and Sher Singh was placed at serial No.10 in the list of scheduled caste candidates. According to the Punjab Employment Department State Service Class III Rules, 1964, in the cost of members appointed directly the order of merit determined by the commission of the Board shall not be disturbed and persons appointed as a result of an earlier selection shall be senior to those appointed as a result of subsequent selection. It has come in the evidence of the plaintiff that Sher Singh joined as Assistant earlier to the plaintiff. If Sher Singh had joined earlier to the plaintiff that does not give seniority to Sher Singh than the plaintiff because in the merit list prepared the S.S. Board, the plaintiff has been placed at serial No.10. The plaintiff has been shown senior to Sher Singh. Even in the letter dated 8.9.86, the Punjab Government issued instructions that the seniority of the officials fixed according to the seniority fixed by the Board. 4 Civil Writ Petition No.13130 of 1991 As it is clear from the perusal of the copy of letter Ex.P3. So the plaintiff is entitled to the mandatory injunction to this effect that his seniority be fixed according to the merit list prepared by the S.S. Board. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.” State of Punjab had filed an appeal against the decision of the Civil Court, which was later-on withdrawn. From the above findings of the Civil Court, there is merit in the following averments made by respondent No.3-Malkiat Singh in his written statement: “4. That in reply to para 4 it is submitted that although the Subordinate Services Selection Board, recommended the name of answering respondent to the office of Excise Department but he never joined it as there was no vacancy. Then the answering respondent made a representation to the Subordinate Services Selection Board, Punjab to divert his name from office of Excise & Taxation to the office of Respondent No.2, because inspite of the selection made by the Subordinate Services Selection Board, of answering respondent as Assistant the respondent was working as Clerk in the office of Respondent No.2 and the excise department never offered the answering respondent the post of Assistant in their deptt. In this way the right of answering respondent was being deprived of by continuing doing the job of a clerk.” Mr. R.K. Malik, Senior Advocate assisted by Mr.Kohal Sharma, Advocate appearing for the petitioners, has stated that it had been the consistent stand of the respondent-Department before the Civil Court that the petitioner was senior to respondent No.3. He had pleaded that as per the Government instructions, since respondent No.3-Malkiat Singh could not join the Excise and Taxation Department, his subsequent 5 Civil Writ Petition No.13130 of 1991 diversion to the Employment Department will place him only as a junior to the petitioner, who had earlier joined the department. It is stated that it has been also the stand of the State in the appeal filed against the judgment of Sub Judge, 1st Class, Chandigarh (Annexure P-16). Learned counsel states that there was no justification for the State to abruptly withdraw the appeal and posting orders to grant seniority to respondent No.3-Malkiat Singh. In the facts and circumstances of the present case, this Court has to address to a core issue, as to whether respondent No.3- Malkiat Singh joined the Employment Department at his own request or the circumstances were such that he had to be adjusted in his parent department, i.e. the Employment Department. It is an unassailable fact that in the merit list prepared by the Board, respondent No.3-Malkiat Singh was placed at serial number 3, whereas the petitioner at serial number 10. It is also not disputed that the seniority is to be determined as per the merit drawn by the Board. Respondent No.3-Malkiat Singh, who was narrated as senior to the petitioner in the merit list, was sent to the Excise and Taxation Department where there was no vacancy. For this, no fault can be attributed to respondent No.3-Malkiat Singh. He rightly made a representation to the Board that he had been assigned a department, where there was no vacancy and he should be allowed to remain in the department, where he was working as a Clerk. The request, due to its merit, was rightly accepted by the Board. Thus, it cannot be said that respondent No.3-Malkiat Singh had come to the Employment Department at his own request to lose his seniority. It has been rightly held by the Civil Court that the merit list prepared by the Board was to be given due sanctity, inter-se respondent No.3-Malkiat Singh and the petitioner. In the merit list, the Board had placed respondent No.3-Malkiat Singh at serial 6 Civil Writ Petition No.13130 of 1991 number 3 and the petitioner at serial number 10. Therefore, if the Government found merit in the contention accepted by the Civil Court, it cannot be said that it was not within its rights to withdraw the appeal. Therefore, on the facts and circumstances of the present case, orders (Annexures P-13, P-14 and P-18) are justifiable. Rightly the seniority was restored on the basis of the merit drawn by the Board. A preliminary objection has been raised by respondent No.3- Malkiat Singh that the petitioner had filed an application under Order 1 Rule 10 read with section 151 CPC in the Court of Additional District Judge, Chandigarh, which was dismissed on merits vide order dated 26th April, 1991. It is further stated that the petitioner had also filed a Civil Suit challenging the judgment and decree dated 5th October, 1989 (Annexure P-16) passed in favour of respondent No.3-Malkiat Singh. However, that plaint was returned as the petitioner had not issued a notice under Section 80 CPC. The order passed by the Civil Court, where the application under Order 1 Rule 10 CPC was declined, has been annexed with the present petition as Annexure R-3/1. Without examining the effect of rejection of the application under Order 1 Rule 10 CPC and the order passed by the Civil Court returning the plaint, preferred by the petitioner, this Court is of the opinion that right from the very beginning, respondent No.3-Malkiat Singh was senior to the petitioner and after a correction was carried, later-on due to the intervention of the Civil Court vide order (Annexure P-16), orders (Annexures P-13, P-14 and P-18), which corrected the error, are to be sustained in the eyes of law. So far as the contention advanced by counsel for the petitioner that in view of the directions issued by this Court in Civil Writ Petition No.6761 of 1991, while passing order (Annexure P- 18), the Director, Employment Department, Punjab, Chandigarh has not given due consideration to the observations made by this Court in 7 Civil Writ Petition No.13130 of 1991 affording an opportunity of hearing to the petitioner, is concerned, this Court is of the opinion that the concluding portion of order (Annexure P- 18) is not to be read in isolation, rather it should be read as a whole. From a perusal of the order (Annexure P-18), it will be evident that the Director, Employment Department, Punjab, Chandigarh was conscious of the controversy involved. He had noted the merits of the case and had rightly found merit in the claim of respondent No.3-Malkiat Singh. In view of the observations made above, there is no merit in the present writ petition and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE August 31, 2010 rps 8