R.S.A. No. 1120 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1120 of 2004 Date of decision: 28-7-2010 The State of Punjab and another ......... Appellants Vs Mukhtiar Singh .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. P.C.Goyal, Additional Advocate General Punjab, for the appellants Mr. S.K.Arora, Advocate, for the respondent HARBANS LAL, J. This appeal is directed against the judgment/decree dated 1.12.2003 passed by the court of learned Additional District Judge, Ferozepur whereby he set aside the judgment/decree dated 8.1.2003 passed by the court of learned Civil Judge (Senior Division), Ferozepur and decreed the suit of the plaintiff for declaration to the effect that his date of appointment in the seniority list is to be mentioned as 25.8.1981 and his seniority is to be determined accordingly and he shall be entitled to all the consequential benefits as if his name had been originally placed in the seniority list by taking his date of appointment as 25.8.1981. The facts which led to the filing of the suit are that the name of the plaintiff was sponsored through Employment Exchange and he was selected by the departmental selection committee in open competition and appointed as conductor on the basis of the merit determined in the interview R.S.A. No. 1120 of 2004 2 at the time of said selection in the year 1981. On the basis of the same selection, a number of other persons were also appointed as conductors. The plaintiff joined his duty as such and is continuing in service since then. He is being governed by the Punjab Roadways (Operational) State Service Class III Rules 1977 (for short the Rules) as amended from time to time. He has come to know that the defendants have prepared seniority list in which his date of appointment is given as 7.8.1985, which is wrong, illegal and against the Rules and Regulations and So, he is entitled to the seniority on the basis of his original date of appointment which falls in the year 1981 and is entitled to be placed senior to other employees who are placed below in the merit list at the time of selection and recruitment. The defendants in their joint written statement have admitted that the plaintiff was selected and appointed as conductor in 1981 and is entitled to the protection of rules and the date of his appointment in the seniority list is mentioned as 7.8.1985. As alleged, he is working continuously as a conductor without any interruption with effect from 7.8.1985. Initially, he was appointed as conductor for the period from 25.8.1981 to 31.8.1981 and thereafter, he was appointed from time to time for short spells with breaks from 1.9.1981 to 4.9.1981, 1.1.1982 to 11.2.1982, 1.8.1982 to 10.8.1982, 1.11.1982 to 5.11.1982, 1.1.1983 to 18.1.1983, 1.5.1985 to 3.5.1985 and 19.6.1985 to 6.8.1985; that his date of appointment has been rightly mentioned as 7.8.1985 in the seniority list which is legal and valid. He never made any request for the change of seniority position and his suit is time barred. On the pleadings of the parties, the following issues were framed by the learned trial Court:- R.S.A. No. 1120 of 2004 3 1. Whether the plaintiff was selected and appointed by the selection committee on regular basis w.e.f. 25.8.1981?OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to correction of the date in the seniority list from 7.8.1985 to 25.8.1981?OPP 3. Whether the suit is within limitation?OPD 4. Whether the plaintiff has no cause of action to file the present suit?OPD 5. Relief After examining the evidence and hearing the learned counsel for the parties, the learned trial Court dismissed the suit as noticed at the outset. Feeling aggrieved therewith, the plaintiff went up in appeal, which was accepted by the court of learned Additional District Judge, Ferozepur as noticed hereinbefore. Being dissatisfied therewith, the defendants have preferred this appeal. The following substantial question of law arises for determination in this appeal:- “Whether the respondent can be given seniority without impleading those persons who would be affected by this order?” I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. On behalf of the appellants Mr. P.C. Goyal, learned Additional Advocate General, Punjab has maintained that there being breaks in the service of the plaintiff-respondent, the service rendered by him prior to 7.8.1985 cannot be counted for the purpose of seniority and that the R.S.A. No. 1120 of 2004 4 seniority list was rightly prepared. The learned Lower Appellate Court has gravely erred in holding that merely on the ground that the plaintiff- respondent was appointed only for a short period, it cannot be held that his appointment was not on regular basis. Furthermore, as provided in the rules, the seniority of employees shall be determined by the length of continuous service on a post in the cadre. The plaintiff-respondent cannot be given seniority without impleading the other conductors, who would be affected by this order. To overcome these submissions Mr. S.K.Arora, Advocate on behalf of the respondent pressed into service that the initial date of appointment of the plaintiff has to be taken into consideration for determining his seniority as there was no break in his service. Assuming that there were breaks in his service, the same had occurred due to the fault of the defendant-appellants. As such, those breaks are liable to be condoned for the purpose of determining the seniority of the plaintiff. To add further to it, he was selected on the basis of the recommendations of the Departmental Selection Committee and that being so, he is liable to be placed in the seniority list over and above those conductors who were selected and appointed afterwards. It is further argued that in view of the rule laid down in V.P.Shrivastava Vs. State of Madhya Pradesh 1996(2) Service Cases Today 192 the persons to be affected by the order are not necessary parties. I have given a deep and thoughtful consideration to the rival contentions. In General Manager, South Central Railway, Secundrabad Vs. A.V.R.Siddhanti, (1974) 3 S.C.R. 207 followed in V.P.Shrivastava's case (supra) it has been held that “The employees who were likely to be R.S.A. No. 1120 of 2004 5 affected as a result of the re-adjustment of the petitioners' seniority in accordance with the principles laid down in the Board's decision of October 16, 1952 were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition.” Herein, the plaintiff-respondent is claiming seniority as per rules and not on any other basis. That being so, the seniority can be given to the plaintiff-respondent without impleading those persons who would be affected by this judgment. Accordingly, the substantial question of law stands determined against the defendant-appellants and in favour of the plaintiff-respondent. In Anand Kumar Versus Haryana Urban Development Authority 1985 (1) Recent Services Judgments 230, Kartar Singh Vs. State of Haryana 1996 (1) Recent Services Judgments 620 and Pyare Lal Vs. State of Haryana 2001(4) Recent Services Judgments 730 it has been consistently held that if a break in service or interruption in service takes place due to action of the employer, it cannot treated as break in service. Now it is to be noticed as to whether the break came to occur either due to the fault or lapse on the part of the plaintiff-respondent or owing to the action of the employer. It is in the cross-examination of DW-1 Raj Pal clerk, Punjab Roadways, Ferozepur that “ the breaks in the service of the plaintiff are on account of want of vacancy i.e. leave vacancy and suspension vacancy. The said breaks in service of the plaintiff are not on account of fault on the part of the plaintiff.” This own evidence of the defendant-appellants tends to show that the breaks in the service of the plaintiff-respondent came to occur because of the action of the employer and not due to any fault of the plaintiff-respondent. Consequently, in view of the afore quoted law, the breaks in the service of the plaintiff-respondent R.S.A. No. 1120 of 2004 6 were liable to be condoned. It also surfaces in the cross-examination of the afore mentioned witness that “there were similar breaks in service as in the case of the plaintiff. The breaks in his service record were condoned vide order No. 1346 dated 2.7.2001. Similar directions in the service record of many other conductors were also condoned by the General Manager, Punjab Roadways, Ferozepur vide order dated 2.7.2001. Copy of the order dated 2.7.2001 is Ex.P-5. Similarly breaks in the service of other conductors were also condoned by General Manager, Punjab Roadways, Ferozepur vide his order dated 18.6.2001 and 20.7.2000.” This evidence too is a pointer towards the fact that the breaks in the service of the plaintiff-respondent were liable to be condoned. Rule 11 of the Punjab Roadways (Operational) State Service Class III Rules 1977 in so far as is relevant for the decision of this case, reads as under:- “11. Seniority of members of service:- The seniority inter se of members of Service shall be determined by the length of continuous service on a post in the cadre of the service: Provided that in case of members recruited by direct appointment, the order of merit determined by the Commission, or the board or other recruiting authority, as the case may be, shall not be disturbed in fixing the seniority and persons appointed as a result of an earlier selection shall be senior to those appointed as a result of subsequent selection. It has been couched in the widest possible terms in the above proviso that the persons appointed as a result of an earlier selection shall be senior to those appointed as a result of subsequent selection. To put it differently, if a person selected subsequently joins before the person who R.S.A. No. 1120 of 2004 7 was selected earlier is to be placed below all the candidates who were selected first. It thus follows that the merit as determined by the selection committee has to be maintained in the matter of seniority. Thus, it would be in the right perspective to hold that the seniority of the plaintiff-respondent has to be determined on the basis of the date of his initial appointment. Sequelly, the findings returned by the learned Lower Appellate Court warrant no interference and are affirmed. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. (HARBANS LAL) JUDGE July 28, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes