C.W.P.NO.2303 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1) C.W.P.No.2303 of 2010 Krishan Kumar and others ....Petitioners Versus The State of Haryana & Ors. ...Respondents 2) C.W.P.No.5571 of 2000 Krishan Kumar and others ....Petitioners Versus State of Haryana & Ors. ...Respondents 3) C.W.P.No.10720 of 2007 Krishan Kumar and others ....Petitioners Versus The State of Haryana & Ors. ...Respondents Date of Decision : 1.2.2011 CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Balram Gupta, Sr.Advocate with Mr.Shireesh Gupta, Advocate C.W.P.NO.2303 OF 2010 -2- for the petitioners (in all the petitions). Mr.Sunil Nehra, Sr.DAG, Haryana for respondents No.1 and 2 (in all the petitions). Mr.R.K.Malik, Sr.Advocate with Mr.Kohal Sharma, Advocate for private respondents. Mr.B.S.Rana, Advocate for the Haryana Public Service Commission (in CWP No.5571 of 2000). Mr.H.N.Mehtani, Advocate for Haryana Public Service Commission (in CWP Nos.2303 of 2010 & 10720 of 2007). ..... MAHESH GROVER, J. By this common judgment I propose to dispose of CWP Nos.5571 of 2000, 10720 of 2007 and 2303 of 2010. The essential dispute raised by the petitioners pertains to the affirmation of seniority and their rightful place in the gradation list prepared by the respondent-State. The facts are being extracted from CWP No.2303 of 2010 and the flow of which will also encompass the facts in other two writ petitions as well. In CWP No.2303 of 2010 the challenge was to the promotion of respondent No.4 as Deputy Economic and Statistical Officer. The petitioners, as many others like them were promoted as Research Officers/District Statistical officers/Planning Officers/Credit Planning Officers/Economists on adhoc basis vide order dated 4.1.1995. Vide this very order the petitioner Nos.1, 2, 4 and 5 were promoted as Research Officers while petitioner No.3 was promoted as Credit Planning Officer. The promotion of the petitioners was duly C.W.P.NO.2303 OF 2010 -3- approved by the Haryana Public Service Commission on 26.8.1997 vide letter Annexure P-2 after the State Govt. referred their cases to the Haryana Public Service Commission vide letter dated 10.3.1997. Petitioners No.1,2,4 and 5 were thereafter promoted on regular basis w.e.f. 5.1.1995 while petitioner no.3 was promoted w.e.f. 13.1.1995, upon such approval having been granted by the Haryana Public Service Commission. However, the regular promotion order of the petitioners were not issued by the State Government upon which the petitioners made a representation and since the same was not being answered, the petitioners filed CWP No.5571 of 2000 and prayed that the petitioners and other similarly situated persons be considered as regularly promoted officers with effect from the dates of their respective promotions as the same fell within the promotional quota and was a promotion duly approved by the Haryana Public Service Commission. During the pendency of CWP No.5571 of 2000 and in response to the same the respondent-State issued an order Annexure P-4 on 16.5.2000 which contemplated the continuation of the petitioners as also other similarly situated persons on adhoc basis. This, according to the petitioners, was contrary to the record as they were promoted regularly upon approval of the Haryana Public Service Commission. The respondent-State thereafter promoted respondent No.4 from Class-II to Class-I which is the subject-matter of CWP No.10720 of 2007 and thereafter the State of Haryana finalised the seniority list vide its order dated 1.5.2008 (Annexure P-13) which was made subject to the final outcome of CWP No.5571 of 2000. But despite C.W.P.NO.2303 OF 2010 -4- this another order was passed on 16.12.2009 (Annexure P-18) by which the earlier seniority list, which according to the petitioners, was the final seniority list issued on 1.5.2008 (Annexure P-13) has been overturned and thus the challenge has been made to Annexure P-18 in CWP No.2303 of 2010. Since the subsequent developments regarding the recruitment to Group-B and promotion of respondent No.4 and the finalisation of seniority list took place during the pendency of the aforesaid civil writ petitions, all the issues become interconnected. The case of the petitioners in nutshell is that they were regularly promoted upon the approval having been granted by the Haryana Public Service Commission and were thus seniors to the persons recruited directly to Group-B, who were appointed subsequent to their promotion and as such the period which the petitioners have spent on the promotional post necessarily has to count towards the seniority even if Annexure P-4 of 11.5.2000 is taken to be correct and their promotion from 1995 till 2002 is considered to be adhoc. The petitioners thus claim – (i) that they were promoted in the year 1995 which promotion was duly approved by the Haryana Public Service Commission and the regular promotion orders were passed in the year 2002 granting them promotion w.e.f. 1995 and that the period spent by them on adhoc basis from 1995 to 2002 be considered for the purpose of reckoning their seniority especially in view of Rule 11 of the Haryana Economic & Statistical Organisation (Group B) Service Rules, 1996 which stipulates length of service to be the criteria to determine the seniority; and (ii) that in fact their C.W.P.NO.2303 OF 2010 -5- promotion was regular the moment the Haryana Public Service Commission granted them approval; and (iii) that Annexure P-13 was the final seniority list and Annexure P-18 which has upset the effect of Annexure P-13 could not have been passed in view of the fact that the succeeding authority cannot review the order of its predecessor more so when the power of review is a creation of statute and in the absence of any specific provisions such a power can never be exercised by any authority. Reliance was placed on a judgment of the Supreme Court reported as Dr.Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and others, AIR 1987 Supreme Court 2186, wherein it was observed as follows :- “It is now well established that a quasi judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal acts as a quasi judicial authority. The provisions of the U.P.State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice-Chancellor. In the circumstances, it must be held that the Vice-Chancellor acted wholly without jurisdiction in reviewing the order and the order is a nullity.” Reliance has also been placed on a judgment of this Court reported as Narinder Kaur v. The Commissioner, Ferozepur Division C.W.P.NO.2303 OF 2010 -6- and others, 2003(3) RSJ 414 which is based on the observations of the Supreme Court in the aforesaid judgment of 1987. The respondents' case is that the petitioners were promoted by virtue of Annexure P-1 against the quota of direct recruits which was merely an adhoc arrangement and the approval was granted by the Haryana Public Service Commission to their adhoc promotion and merely because they continued, would not change the nature and character of their initial promotion and thus their regular promotion would come into effect from 5.9.2002 when they were regularly promoted whereas the direct recruits came in the year 2001 and since their appointment to the cadre was in 2001 as against the petitioners who came into the cadre in 2002 on regular basis, they were to be ranked senior to them and thus Annexure P-18 had only rectified the mistake which had been committed by the respondent-State in Annexure P-13 and which in any eventuality was subject to the outcome of CWP No.5571 of 2000. Hence, there was no merit in the contentions raised by the learned counsel for the petitioners. It was further contended that Annexure P-18 is not a review of Annexure P- 13, as it was merely an exercise which was conducted after hearing the representations made by number of persons including the petitioners and thus the plea that the order could not be reviewed is meaningless. I have heard the learned counsel for the parties whose submissions have been on the aforesaid lines on the basis of respective stand taken by them in their pleadings. There is no dispute that the rule of seniority contemplates C.W.P.NO.2303 OF 2010 -7- that seniority of the members of the service shall be determined by the length of their continuance of service on any post in the service. Rule 11 of the Haryana Economic & Statistical Organisation (Group B) Service Rules, 1996 is reproduced herein below :- “11. Seniority, inter se of members of the service shall be determined by the length of their 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 each cadre : Provided further that in the case of members appointed by direct recruitment, the order of merit determined by the Commission or any other recruiting authority, as the case may be shall not be disturbed in fixing the seniority :” Now the question that has to be determined is as to whether the petitioners who were promoted in 1995 would be senior to the private respondents who were recruited directly in the year 2001 or not and that whether Annexure P-13 which is supportive of the case of the petitioners is to be granted the seal of approval while negating Annexure P-18 which is the cause of grievance of the petitioners. While granting promotion to the petitioners, Annexure P-1 spoke as follows :- “The Governor of Haryana is pleased to order promotions/postings of the following Assistant Research Officers/Assistant District Statistical Officers/Research C.W.P.NO.2303 OF 2010 -8- Assistant as Research officers/District Statistical officers/Planning officers/Credit planning officers/Economists shown against each on adhoc basis in the pay scale of Rs.2375-75-2900-EB-100-3600 against direct quota posts for a period of 9 months or till the candidates recommended by Haryana Public Service Commission join, whichever is earlier, with immediate effect:-” The matter was thus referred to the Haryana Public Service Commission on the strength of letter dated 10.3.1997, which though not placed on record, was shown to the court during the course of proceedings and which had asked for approval of the Haryana Public Service Commission to the adhoc promotions made by the respondent-State. The approval thus granted by the Haryana Public Service Commission was merely to the arrangement which the respondent-State had resorted to on adhoc basis which promotions were against the direct quota posts. Annexure P-4 was thus merely a reiteration of the earlier arrangement made by promoting the petitioners on adhoc basis which received the approval of the Haryana Public Service Commission and was not a reversal of the stand of the respondent as the order Annexure P-4 reads that “In consultation with Haryana Public Service Commission, Governor of Haryana is pleased to accord approval for continuation of their adhoc promotion to the following Research Officer/District Statistical Officers/Planning Officers/Credit Planning Officers/Economists beyond the dates mentioned against each.” C.W.P.NO.2303 OF 2010 -9- Learned counsel for the petitioners wanted the Court to believe that the approval granted by the Haryana Public Service Commission amounted to an endorsement of their regular promotion, because according to him, there was no necessity of seeking approval of Haryana Public Service Commission to an adhoc arrangement which contention stood belied from the Exposition of Regulations 3 and 6 of the Haryana Public Service Commission (Limitation of Functions) Regulations, 1973 which warrant that against the direct recruitment quota posts neither adhoc appointments will be made through the Employment Exchange nor departmental officers/officials will be promoted on adhoc/temporary basis till steps have already been taken to fill these posts by direct recruitment and for that purpose necessary requisition has already been sent to the Commission and the receipt of the same is acknowledge by them and adhoc promotions against the direct recruitment quota posts will be allowed to continue only after the approval of the Commission has been obtained. The relevant extract of the Regulations is as below :- “To avoid vested interests it has been emphasized vide Haryana Govt. instructions No.699-1-GS- 1-74/7611 dated 2/5.4.74 that against the direct recruitment quota posts neither adhoc appointments will be made through the Employment Exchange nor departmental officers/officials will be promoted on adhoc/temporary basis till steps have already been taken to fill these posts by direct recruitment and for that purpose necessary requisition has already been sent to the Commission and C.W.P.NO.2303 OF 2010 -10- the receipt of the same is acknowledged by them. Apart from this a dhoc promotions against the direct recruitment quota posts will be allowed to continue only after the approval of the Commission has been obtained:” Having said this, it becomes abundantly clear that the promotion of the petitioners to the posts was on adhoc basis and not regular as the counsel for the petitioners wanted this court to accept. The regular promotion was thus made in the year 2002 which is much after the private respondents having entered in service as direct recruits in 2001. The next question that needs to be determined is whether the period spent by the petitioners on adhoc promotion made in 1995 and regularised in 2002 is to be counted to reckon their seniority and whether Rule 11 of the Haryana Economic & Statistical Organisation (Group B) Service Rules, 1996 which talks of seniority is to be interpreted in favour of the petitioners by accepting their plea of counting of such service. The Supreme Court in K.Malalaimuthu & Anr. v. State of Tamil Nadu & Ors. JT 2006(6) SC 190 while negating the similar plea of promotees observed as follows :- “.......State making temporary appointments and later on regularizing their services and promoting them to the post of District Registrars – While preparing the seniority list State reckoning the seniority of the promotees from the date of their initial appointment and not from the date of their regularization – Consequently appellants who were direct recruits placed below the promotees in the seniority list – Appellants challenging such seniority determination C.W.P.NO.2303 OF 2010 -11- – High Court upholding the seniority classification holding that the promotees should be considered to have been appointed to the service the moment they commenced their probation – Whether High Court correct in holding so. Allowing the appeal and setting aside the order passed by the High Court held that the starting point of seniority of the promotees would be from the date on which their services were regularized and not from the date of their initial appointment. State accordingly directed to redetermine the seniority of the appellants in relation to such promotees.” Likewise, in State of Punjab and Anr. v. Ashwani Kumar and Ors., 2008(4) S.C.T. 269 while relying on the judgment in State of Haryana v. Haryana Veterinary & AHTS Association and Anr.2000(4) SCT 664 : (2000(8) SCC 4) it has been held as under :- “6. We do not feel it necessary to delve further into merits of the case in view of the decision of this Court in State of Haryana v. Haryana Veterinary & AHTS Association and Anr.(supra). We are satisfied that the ratio in that case applies to the case in hand. The resultant position that emerges is that the judgment/order passed by the High Court holding that ad-hoc service is to be included in calculating the period of service for giving the higher scale of pay is unsustainable and has to be vacated. Accordingly, the appeal is allowed and the judgment/order of the High Court under challenge is set aside.” C.W.P.NO.2303 OF 2010 -12- In Ashok Kumar Shrivastava and ors. v. Ram Lal and others, 2008(3) S.C.C.148 the Supreme Court in para 76 of the judgment observed as under :- “We are aware that it is a well-established principle of law that till such time as an employee is born on the cadre he cannot have any claim to seniority over others who are already in the cadre. The High Court has proceeded on the basis that the recruits by way of Limited Departmental Examination may have been appointed in 1987 before the direct recruits but the direct recruits were appointed in the cadre long prior to the regularisation of the services of the 1987 appointees which was initially ad hoc in nature. According to the High Court, since the regular appointment of the direct recruits of 1985 and 1990 were confirmed prior to the regularisation of the services of the 1987 appointees in 1997, they would be senior to the 1987 appointees.” Similarly, in Keshav Chandra Joshi and others v. Union of India and others, 1991 AIR (SC) 284 it has been held as under :- “33. Accordingly we have no hesitation to hold that the promotees have admittedly been appointed on ad hoc basis as a stop-gap arrangement, though in substantive posts, and till the regular recruits are appointed in accordance with the rules. Their appointments are de hors the rules and until they are appointed by the Governor according to rules, they do not become the members of the service in a C.W.P.NO.2303 OF 2010 -13- substantive capacity. Continuous length of ad hoc service from the date of initial appointment cannot be counted towards seniority. The Governor shall have to make recruitment by promotion to substantive vacancies in the posts of Asstt. Conservator of Forest, if not already made, in accordance with Rule 5(b) read with Appendix 'B' and Rule 6. Their seniority shall be counted only from the respective dates of appointment to the substantive posts in their quota under Rule 6 as per the rules. The direct recruits having been appointed in accordance with Rule 5 (a) read with Appendix 'A', their seniority shall be counted from the date of their discharging the duties of the post of Asstt. Conservator of Forest and the seniority of the direct recruits also shall accordingly be fixed. The inter se seniority of the direct recruits and promotees shall be determined in accordance with Rules 5, 6 and the Rule 24 in the light of the law declared in the judgment. All the employees are entitled to all consequential benefits. On account of the pendency of judicial proceedings, if any of, the employees become barred by age for consideration for promotion to cadre posts, the appropriate Governments would do well to suitably relax the rules and do justice to the eligible conditions.” A Division Bench of this Court in Saroj Gupta v. The Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others, 2008(2) S.C.T.323 while referring to numerous C.W.P.NO.2303 OF 2010 -14- judgments of the Supreme Court reiterated the aforesaid view and likewise observations have also been made by a Single Bench of this Court while disposing of R.S.A.No.4238 of 2006, on 22.1.2010. There is thus little hesitation to conclude that the petitioners who were promoted on adhoc basis against the quota meant for direct recruits could not derive any benefit of the period spent by them on the posts and thus could not claim any leverage against the claim of the direct recruits who entered the regular cadre prior to the petitioners. The last contention raised by the learned counsel for the petitioners that Annexure P-18 is a review of the order Annexure P- 13, which was the final order of seniority and which could not have been done as a quasi judicial authority has no power to review in the absence of any specific power to do so. There is no doubt that review is always a creation of statute and unless there is an explicit power given to an authority, the power of review cannot be exercised. It is also not in dispute that seniority by itself is a valuable right available to an employee which cannot be defeated by an arbitrary exercise as it tends to have a cascading effect, apart from influencing his career prospects adversely. But at the same time if the facts of the case are evaluated then Annexure P-13 itself spoke of an inconclusive exercise as according of the seniority after evaluating the availability of the posts vis-a-vis the promotees and direct recruits was made subject to the outcome of CWP No. 5571 of 2000 and Annexure P-18 further has been passed upon the directions given by this Court in CWP No. 7490 of 2009 itself directing the C.W.P.NO.2303 OF 2010 -15- respondent State to pass a speaking order on the representations and in the light of the advice (Annexure P-18 in CWP No.7490 of 2009). The plea of the petitioners that Annexure P-18 is a review of the earlier order Annexure P-13 is thus not correct, as both Annexures P13 and P-18 are merely continuance of exploratory exercise conducted by the respondent State in which the representations of all affected persons have been heard including the petitioners and it has not been pleaded by the petitioners that they have not been heard or that insufficient opportunity has been given to them. The contention is thus rejected. As a conclusion it is observed that promotion of the petitioners by virtue of Annexure P-1 was merely an adhoc arrangement and the Haryana Public Service Commission while lending legitimacy to such an arrangement did not confer any regularity to such arrangement and thus the petitioners who came into the service cadre in 2002 on regular basis cannot be held to be senior to the private respondents who entered the service as direct recruits in the year 2001, and further the prayer of the petitioners that their service rendered by them on adhoc basis on the promotional post be taken into account to grant them the benefit of seniority in view of Rule 11 of the Haryana Economic & Statistical Organisation (Group B) Service Rules, 1996 which contemplates length of continuous service, is also rejected. C.W.P.NO.2303 OF 2010 -16- As a consequence of the aforesaid, the writ petitions are held to be without any merit and are dismissed. Ist Feb., 2011 (MAHESH GROVER) JUDGE dss