C.W.P. No. 19240 of 2007 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 19240 of 2007 Date of Decision: Sept. 26,2011 Union of India and others .......................... Petitioners Versus Dayal Chand and others ........................ Respondents Coram: Hon'ble Mr. Justice Permod Kohli 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. Namit Kumar, Advocate for the petitioners. Mr. Rohit Seth, Advocate for respondent No.1. ... RITU BAHRI, J. Union of India by this writ petition under Articles 226/227 of the Constitution of India has challenged order dated 7.9.2007 (Annexure P-19) passed by the Central Administrative Tribunal, Chandigarh, whereby it is directed to correct the seniority of the applicant-Dayal Chand son of late Shri Shankar Ram in the cadre of P.A. with reference to his date of joining in Ambala Division on 8.7.1977 with all C.W.P. No. 19240 of 2007 [ 2 ] consequential benefits. Shri Dayal Chand had joined the department as Postal Assistant with effect from 24.1.1969 in Patiala Division. He was declared permanent with effect from 1.7.1973. Thereafter, he was transferred to Ambala Division on his request. He joined there with effect from 8.7.1977. At that time, Patiala and Ambala Divisions were in the same Circle. He was promoted as LSG with effect from 24.1.1985. Thereafter, he was promoted as HSG-II with effect from July 1985 under the BCR Scheme i.e. on completion of 16 and 26 years of service. He became entitled for promotion to HSG-I on completion of 3 years of service in BCR Scale. Under Rule 38 of the P&T Manual Vol.IV when an official is transferred at his own request, he will rank junior in the gradation list of the new unit to all the officials of that unit on the date on which the transfer orders have been issued. The Rule further provides that if one permanent official is transferred from one unit to another he will retain his lien in the old unit until he can be accommodated in the new unit according to his position in the new unit. The precise grievance of the applicant-Dayal Chand is that even though he had joined as Postal Assistant after being transferred on 8.7.1977 he was placed below all the Postal Assistants who had joined their services upto 8.7.1977. Respondent No.4-Madan Lal his junior, who joined C.W.P. No. 19240 of 2007 [ 3 ] the Postal Assistant Cadre on 30.6.1980, and was confirmed on 1.1.1984 was promoted to LSG on regular basis on 7.7.1984 (Annexure A-1). In the seniority list dated 1.7.2002 (Annexure A-2) the applicant-Dayal Chand has been placed below respondent No.4. Representations were made on 10.9.2004 (Annexure P-112) and 30.9.2004 (Annexure P- 113) for correction of his seniority and promotion which were rejected on 20.1.2005 (Annexure A3) informing him that his seniority has been fixed with reference to his date of confirmation on 1.3.1985. No one junior to him has been promoted as LSG. The orders Annexures A1 to A4 have been challenged by the applicant by filing an OA in the Tribunal. The respondents took a stand by filing reply that as per sub-clause 4 of Rule 38 of the P&T Manual Vol.-IV a permanent official transferred from one unit to another will retain his lien in the old unit until he can be accommodated in the new unit according to his position in the new unit. The staff of Ambala General Post Office was merged with the staff of Ambala Postal Division and a combined Divisional Gradation List corrected upto 1.7.1989 was issued and all the employees were placed according to their date of confirmation in Ambala. The applicant-Dayal Chand was made regular in Ambala Postal Division with effect from 1.3.1985 and thereafter his lien in Patiala was done way with. He has been assigned seniority with effect from C.W.P. No. 19240 of 2007 [ 4 ] 1.3.1985 as per Rule 38(4). Respondent No.4 who was appointed on 30.6.1980 and confirmed on 1.1.1984 has been assigned seniority above Dayal Chand as per Rule 38 (4). The plea of limitation that the petition is barred by limitation as various seniority lists have been issued upto 1.7.1993, 1.7.1996, 1.7.1999 and 1.7.2002, the petitioner made a representation on 17.5.2004 which was barred by time. This plea has been rejected by the Tribunal as the seniority lists issued from 1993 to 2002 were never brought to the notice of the applicant-Dayal Chand. Therefore, the application could not be rejected on the ground of limitation. The Tribunal after examining Rule 38 of the P&T Manual has quashed and set aside the orders A1 to A4 and has directed the department to fix seniority of Dayal Chand from the date of joining Ambala Division on 8.7.1977 with consequential benefits. Mr. Namit Kumar, counsel for the Union of India, has vehemently argued that the respondent had joined the Ambala Division way back in the year 1977. After his confirmation he was promoted as LSG with effect from 24.1.1985 and thereafter as HSG-II with effect from 1.7.1985. He was confirmed in the Ambala Division with effect from 1.3.1985. As per Rule 38(4) a permanent official transferred from one unit to another will retain his lien in the old unit until he can be accommodated in the new unit C.W.P. No. 19240 of 2007 [ 5 ] according to his position in the new unit. The employee will have no right to go back to his old unit even though he holds his lien there. The respondent had joined the Ambala Division on 8.7.1977 but he could retain his lien in Patiala Division till he was confirmed in Ambala Division which he did on 1.3.1985. For all intents and purposes he was confirmed in Patiala Division on 1.3.1985, therefore the seniority has been given to him in terms of Rule 38(4) of the P&T Manual. A combined gradation list of the PA Cadre officials was made on 1.7.1989 including the staff of Ambala General Post Officer and Ambala Postal Division. The seniority list has been prepared by taking into account the date of confirmation in terms of Rule 38(4) of the P&T Manual. Mr. Namit Kumar has referred to the instructions of Government of India dated 3.7.1986 which govern the seniority of direct recruits and promotees. Rule 2.3 has been referred, which is as under:- “2.3 Where persons recruited or promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority shall follow he order of confirmation and not the original order of merit.” The date of confirmation is to be taken for C.W.P. No. 19240 of 2007 [ 6 ] maintaining seniority and not the original order of merit when persons are recruited or promoted on temporary basis. Mr. Rohit Seth, counsel for the respondent, has referred to Rule 38(2) to contend that when an official is transferred at his own request, he will rank junior in the gradation list to all the officials of the new unit on the date on which such transfer is made. The Tribunal has interpreted this Rule and has come to the conclusion that when an employee is transferred at his own request he is to be placed junior in the gradation list. Application of Sub rule 4 of Rule 38 by no stretch of imagination wipe out the main rule which determines the seniority from the date he joins the new unit and accepts to be lowest in the gradation list. The date of fresh confirmation in the Ambala Division will have no relevance in the matter. On availability of a regular post he was confirmed with effect from 1.3.1985 and acquire a permanent lien in Ambala Division. Rule 38(4) enables an employee on transfer to retain his lien in the old unit until he can be accommodated in the new unit according to his position in the new unit. This does not lay down any rule of fixation of seniority. The seniority is to be fixed for all intents and purposes as per sub-rule 2 of Rule 38. After being transferred to the new unit the employee will forfeit his position in the old unit from where he had been transferred i.e. Patiala in the case of the present applicant-Dayal Chand. C.W.P. No. 19240 of 2007 [ 7 ] Heard counsel for the parties. The short question to be decided in the facts of the present case is that on transfer from one unit to another the seniority will be governed by the date of joining or the date of confirmation in the new unit. Rule 38 of the P&T Manual is reproduced below:- “38. Transfer at one's own request (1)Transfers of officials when desired for their own convenience should not be discouraged if they can be made without injury to the rights of others. However, as a general rule, an official should not be transferred from one unit to another, either within the same Circle, or to another Circle unless he is permanent. As it is not possible to accommodate an official borne on one gradation list into another gradation list without injury to the other members in that gradation list such transfers should not ordinarily be allowed except by way of mutual exchange. Transfer by way of mutual exchange, if in themselves inherently unobjectionable, should be allowed, but in order to safeguard the rights of men borne in the gradation lists of both the offices, the official brought in should take the place, in the new gradation list; that would C.W.P. No. 19240 of 2007 [ 8 ] have been assigned to him had he been originally recruited in that unit or the place vacated by the official with whom he exchanges appointment, whichever is the lower. (2)When an official is transferred at his own request but without arranging for mutual exchange, he will rank junior in the gradation list of the new unit to all officials of that unit on the date on which the transfer order issued, including also all persons who have been approved for appointment to that grade as on that date. (3) If the old and the new unit form parts of a wider unit for the purpose of promotion to a higher cadre, the transferee (whether by mutual exchange or otherwise) will retain his original seniority in the gradation list of the wider unit. (4) A permanent official transferred from one unit to another will retain his lien in the old unit until he can be accommodated in the new unit according to his position in the new unit. He will not, however, have any claim to go back to his old unit even though he holds his lien there. A declaration to the effect that he accepts the seniority on transfer in accordance with this C.W.P. No. 19240 of 2007 [ 9 ] rule, and that he will not have any claim to go back to the old unit, should be obtained from an official is transferred under this rule. Any special privilege to which an official may be entitled by virtue of his position in the gradation list of the unit from which he is transferred will, ordinarily, be forfeited on his transfer to a new gradation list.” One glance at Rule 38 above makes it very clear that when an official is transferred at his own request he will rank junior in the gradation list of the new unit including all those persons who had been approved for appointment to that grade. Sub-rule 4 of the Rule enables:- 1)person to retain his lien in the old unit until he is confirmed. 2)He cannot go back to his old unit even though he holds his lien. 3)He has to give a declaration that he has accepted the seniority on transfer and will not claim to go back to his old unit. 4)On his transfer he will forfeit any special privilege earned by him in the gradation list of the old unit from where he has been transferred. A plain reading of Rule 38(4) goes to show that, on one hand the person is being allowed to retain his lien till he C.W.P. No. 19240 of 2007 [ 10 ] is confirmed in the new unit and on the other hand he has to give a declaration that he has accepted his seniority on transfer and he cannot have any claim to go back to his old unit. The fixation of seniority has been laid down in sub rule 2 which spells out that he will rank junior on transfer to the new unit to all the officials of that unit including those who have been approved for appointment to that grade. Once an employee has given his declaration that he has accepted the seniority in consonance with Rule 38(2) he cannot go back to his old unit. As per Rule 38(4) he forfeits all special privileges which he had earned in the old Department on his transfer to the new Department. A combined reading of Rule 38 sub-clause 2 and 4 goes to show that with effect from the date of joining, the seniority has to be fixed. For all intents and purposes he forfeits his seniority in the old unit and after accepting the new position being junior most in the new seniority list he cannot go back to his old unit. A condition in Rule 38(4) that he will retain his lien in the old unit until he can be accommodated in the new unit does not govern the rule of seniority at all. Confirmation in the new unit on availability of a permanent post will not govern the seniority of a transferred employee. In The Direct Recruit Class-II Engineering Officer's Association and others v. State of Maharashtra and others 1990(2) SLR 769 the Supreme Court has held that once an incumbent is appointed to a C.W.P. No. 19240 of 2007 [ 11 ] post according to rules his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The Supreme Court in Sushma Mutreja v. Union of India 2001(4) RSJ 257 has held that on being transferred to a new cadre the seniority has to be counted from the date he joined the new cadre and a person who was not borne on that cadre on that date cannot be placed senior to the person appointed earlier. In K.P.Sudhakaran and another v. State of Kerala and others 2006(3) RSJ 332 the fixation of seniority on transfer from one district to another of a Lower Divisional Clerk was considered. In paragraph 13 the Supreme Court has observed as under:- “13. The following facts are not in dispute: (i) The contesting private respondents are transferee LDCs who were transferred from the district in which they were appointed to another district, in the same department on their own request, (ii) The appellants are the existing employees, that is local LDCs of the said department in the district to which the transferee LDCs were transferred, (iii) The transferred LDCs (contesting private respondents) were senior to the appellants with reference to their date of appointment as LDCs. But with reference to the date on which they were transferred to the new district, they will become C.W.P. No. 19240 of 2007 [ 12 ] juniors to the local LDCs (appellants). When the proviso to Rule 27(a) of the Service Rules is applied, as rightly held by the learned single Judge and the Division Bench , the seniority of the transferred LDCs has to be reckoned only from the date of their joining duty in the new unit (or district) and they are not entitled to count their service prior to the date of their transfer on their request.” The argument of Mr. Namit Kumar that as per Rule 38(4) on confirmation the seniority has to be fixed is liable to be rejected as retention of lien permanently is not the rule of seniority as per Rule 38. The respondent was transferred on 8.7.1977 and had accepted to be junior in the new department from that date as per Rule 38(4). He was granted permanent lien in Ambala Division with effect from 1.3.1985. This will not change the rule of seniority or wash away his service from 1977 to 1985 for the purpose of seniority. Finding no merit, this writ petition is dismissed. No costs. ( RITU BAHRI ) JUDGE ( PERMOD KOHLI ) 26.9.2011 JUDGE rupi