C.W.P.No.1726 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.1726 of 2011(O&M) Date of decision : 12.12.2011 Rajender Singh Nandal and another ....Petitioners Versus State of Haryana and another ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present : Mr. V.D.Sharma, Advocate for the petitioners Ms. Harish Rathee, Sr. DAG, Haryana MAHESH GROVER, J The petitioners pray that they be considered for promotion to the next promotional post by conferring seniority upon them by taking into consideration the earlier service rendered by them as Clerks in the Department of Employment Exchange. The petitioners were earlier working in the Employment Exchange. The respondents vide their letter dated 5.2.2001 sought option from the Clerks in the various Departments in the State of Haryana in the case they were desirous of joining the respondent's Department on transfer basis. Some eligibility conditions were specified in the said letter which the petitioners fulfilled and the respondents responded to the requisition. The petitioners were selected and appointed as Clerks in the Excise and Taxation Department on 10.4.2002 by virtue of Annexure P-6. When the question of giving them benefits of ACP scheme came, the service rendered by them as Clerks in the Employment Exchange was considered to confer upon them such benefits. The petitioners contend that once such a service has been C.W.P.No.1726 of 2011(O&M) 2 counted for grant of benefits in accordance with ACP scheme, the respondents are duty bound to consider this service for the purposes of seniority so as to enable them to seek promotion to the next higher post. The respondents have denied this benefit by referring to Annexure P-6 and Clause 2 thereof, as also to state that the seniority has to be construed on the basis of continuous length of service in a particular cadre and the petitioners having entered the cadre of Clerks in the Excise and Taxation Department in the year 2002 cannot derive any benefit of seniority by getting their previous service counted for the purposes of reckoning their seniority and consequent promotion. Learned counsel for the petitioners, to enhance his case has placed reliance upon the judgments rendered in cases titled as Union of India and another Vs. V.N.Bhat reported as 2004(1) RSJ 18 and State of Maharashtra and others Vs. Uttam Vishnu Pawar reported as (2008) 2 SCC 646. On due consideration of the matter, I am of the considered opinion that the petitioners' claim is totally mis-placed. Rule 9(1) pertains to the mode of recruitment to the service which acknowledges transfer or deputation as a recognized mode of appointment. It has further been stated that all promotions are to be made on the basis of seniority-cum-fitness. Seniority thus is the inevitable consideration and principle of seniority is contemplated in Rule 11 which prescribes that seniority inter se all members of service is to be determined by the length of continuous service on any post in the service and where there are different cadres in the service, the seniority has to be considered separately for each cadre. It further lays down that a member appointed by direct recruitment is to be C.W.P.No.1726 of 2011(O&M) 3 reckoned senior to a member appointed by promotion or by transfer. Likewise a member appointed by promotion is to be reckoned senior to a member appointed by transfer and further still that in cases of members appointed by promotion or transfer seniority is to be determined according to seniority of such members in the appointment from which they were promoted or transferred. Rules 9(1) and 11 are extracted herebelow:- “Method of recruitment : - 9. 1) Recruitment to the service shall be made - (e) In the case of Clerks and Camp Clerks - i & ii x x x x x x x iii) By transfer or deputation of an official already, in the service of any State Government or Government of India. 2) xx xx xx xx 3) All promotions, whether from one grade to another grade or from one group of service to another Group of service shall be made on seniority cum fitness basis and taking into consideration seniority but seniority alone shall not give any right to such promotions. Seniority 11. Seniority, inter se of 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 each cadre. Provided further that in the case of members C.W.P.No.1726 of 2011(O&M) 4 appointed by direct recruitment, the order of merit determined by the Board, 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 followed:- 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 rates 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 evident therefore that the petitioners who are appointed by transfer ranked at no.3 of the hierarchy inter se between the direct appointees, promotees and transferees and their seniority is to be reckoned from the date of appointment which in the instant case of would be C.W.P.No.1726 of 2011(O&M) 5 10.4.2002 when the petitioners were appointed as Clerks in the respondent's Department vide Annexure P-6 which the petitioners consciously accepted and is their appointment letter precluding the previous service from being reckoned for the purposes of seniority. In the wake of the above, I am of the considered opinion that the petitioners cannot press and claim that the service rendered by them in the previous department be counted for reckoning their seniority in the cadre to which they were appointed and which appointment they consciously accepted including clause 2 of the appointment letter which they now term to be oppressive. The judgments of Hon'ble Supreme Court upon which reliance has been placed by the learned counsel for the petitioners do not enhance his case in any manner as they pertain to the grant of higher grade on the basis of time bound promotion scheme which benefit has been given to the petitioners by counting their previous service rendered by them. So far as seniority is concerned the Hon'ble Supreme Court has also acknowledged that in such like cases where transfer has been made and allowed on request the concerned employee merely loses his seniority but cannot be denied the benefits of promotional scheme which prescribe the time bound benefit. For the aforesaid reasons, I am of the considered opinion that the rule of seniority would be seriously jeopardized in case prayer of the petitioners is granted and would render such a rule unworkable. No reason to the grant the prayer made by the petitioners is made out. Hence, dismissed. December 12, 2011 (Mahesh Grover) rekha Judge