IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. CWP. No. 3549 of 2007 Date of Decision: 3.8.2010. Wazeer Singh Goyat and others --Petitioners Versus State of Haryana and others --Respondents 2. CWP. No. 9712 of 2007 Ram Swarup Verma and others --Petitioners Versus State of Haryana and others --Respondents 3. CWP. No. 5791 of 2008 Jitender Kumar and others --Petitioner Versus State of Haryana and others --Respondents 4. CWP. No. 19454 of 2007 Ms. Hema Sharma and others --Petitioners Versus State of Haryana and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. K.K. Gupta, Advocate. Mr. Surya Parkash, Advocate. Mr. Gobind Goel, Advocate. Mr. R.K.S. Brar, Addl. A.G., Haryana. Mr. T.S. Dhindsa, Advocate. CWP. No. 3549 of 2007 -2- Mr. Sunil Panwar, Advocate. *** PERMOD KOHLI.J (ORAL) Dispute in these petitions relates to seniority of the officers in the cadre of Haryana Civil Services (Executive Branch)(hereinafter referred to as the 'Service'). The facts of the case are being noticed here from CWP Nos. 3549 of 2007 and 9712 of 2007. The facts being common in all the writ petitions, these petitions were heard and are being disposed of by this common order. Facts from CWP No. 3549 of 2007:- Petitioners in this petition are the direct recruits having been appointed on the basis of the competitive examination except petitioner no.8, who was appointed on compassionate grounds from Register-B maintained under Rule 6 of the Punjab Civil Services (Executive Branch) Rules, 1930 (as amended from time to time including the amendments introduced by the State of Haryana). On being selected through the competitive examination and recommended by the Haryana Public Service Commission (hereinafter referred to as the 'Commission'), the petitioners no. 1 to 4 and 6 joined on 16.3.1989, whereas petitioners no.5 and 7 joined on 21.3.1989. Petitioner no.8 was appointed on compassionate grounds and he joined on 27.11.1991. The vacancies against which the petitioners were appointed from Register-B became available in the year 1985. A requisition for filling up of the 11 vacancies from Register-B for the year 1985 was forwarded by the Govt. to the Commission.. Advertisement for these vacancies was issued in the year 1986 and the competitive examination held in the year 1987. The result of the competitive examination was declared in the year 1988. Appointments took place thereafter and the petitioners no. 1 CWP. No. 3549 of 2007 -3- to 7 joined on the dates mentioned herein above, whereas petitioner no.8 joined on being appointed on compassionate grounds. Respondents no.3 and 4 were appointed from Register-A-1. They joined the service on 19.10.1990. It is admitted case of the parties that all these vacancies were available in the year 1985. As per the details given in the reply of respondents no.3 and 4, 16 vacancies for appointment to the service were notified from Registers A-1, A-II, B and C. The number of vacancies from different registers were in the following manner:- “ Sr. No. Name of Register No. of vacancies 1. A-I 02 2. A-II 02 3. B 11 4. C 01 ---------------- 16 ----------------” The process of selection/appointment in respect to registers A- II, B and C was completed by the year 1991. However, in respect to Register A-1 i.e the D.R.Os/Tehsildars/Naib Tehsildars had to be withheld on account of a stay in CWP No. 8855 of 1988 filed by one Sh.K.K. Gupta. An interim order dated 11.10.1988 was passed in the aforesaid petition with the following directions:- “ There shall be an interim direction that till further orders, no fresh appointment to H.C.S (Executive Branch) shall be made.” Though, the interim order was passed in October, 1988, the list of the selected candidates was sent on 18.7.1989 but final selection could not take place. CWP No. 8855 of 1988 was decided on 3.8.1990 and the selection made by the Commission in respect of the three candidates from CWP. No. 3549 of 2007 -4- Register A-1 of the year 1983 was set aside. The effected candidates filed S.L.P in the Hon'ble Supreme Court and vide order datred 14.10.1990 their reversion was stayed and the Commission was permitted to finalize the pending selection. In view of the directions of the Hon'ble Supreme Court, the process for selection from Register A-1 in respect to two vacancies of 1985 remained pending on account of the litigation referred to above. The S.L.P in the aforesaid matter came to be finally disposed of on 7.10.1991. The Govt. re-initiated the process for selection and a list of 52 eligible officers was furnished by the Financial Commissioner, Revenue for consideration against the two vacancies of 1985 batch from Register A-1. The Selection Committee recommended the names of respondents no.3 and 4 on 7.9.1992 to fill up these vacancies. The Commission vide its letter dated 19.10.1993 recommended the names of the respondents no.3 and 4 against these two vacancies from Register A-1 and they were appointed and joined the service on the same day. With a view to finalize the seniority of the members of service, respondent no.2 invited objections and passed order dated 3.7.2005 fixing the seniority of the extra Assistant Commissioners vide order dated 3.7.2005 (Annexure P-3). In this seniority list petitioners were placed above respondents no.3 and 4, who were at Sr. Nos. 39 and 40 respectively, whereas the petitioners were shown at Sr. Nos. 4, 6, 8 to 11, 14 and 21 respectively. After passing the aforesaid order respondent no.2 issued another order dated 12.8.2005 (Annexure P-4) proposing to re-determine the seniority of cadre of service in the manner indicated therein and fresh claims/objections were invited within 21 days. It was proposed to re- determine the seniority from Sr. No. 32 onwards. It is alleged by the CWP. No. 3549 of 2007 -5- petitioners that since their seniority was not sought to be disturbed, they were not required to respond to the same even though a representation dated 25.10.2005 was submitted by petitioner no.6 and similar representations were made by other petitioners. It is stated that respondents no.3 and 4 had filed CWP No. 2758 of 2006 titled as Narneder Singh and another Vs. State of Haryana and others seeking to re-determine their seniority. It is also admitted case of the parties that the petitioners herein were respondents in the said writ petition. The petitioners, thus, made another representation dated 22.11.2006 and also sought personal hearing with respondent no.2. It is alleged that neither their representation was decided nor they were granted any opportunity of hearing and to the contrary respondent no.2 issued the impugned order dated 12.12.2006 (Annexure P-7) and the seniority of the petitioners qua respondents no.3 and 4 has been disturbed. Respondent no.3 has been placed at Sr. No.3 of the seniority list, on being shifted from Sr. No.39, whereas respondent no.4 has been placed at Sr. No.10 on being shifted from Sr. No. 40 of the earlier seniority list. In this manner respondent no.3 is made senior to all the petitioners and respondent no.4 made senior to petitioners no.5 to 8. The State-respondent has justified and supported the impugned order on the plea that the appointments of respondents no.3 and 4 were against the vacancies for the year 1985 and in view of the fact that these vacancies relate to the period original seniority rule 20 was in operation, the seniority has to be determined by applying the rule of 'Rota & Quota' on the basis of the roster provided under Rule 17, whereas the stand of the petitioners is that in so far the seniority is concerned, it has to be determined on the basis of the amended Rule 20 of the Punjab Civil Services (Executive CWP. No. 3549 of 2007 -6- Branch) Rules, 1930 (hereinafter referred to as 'Rules') as applicable at the time of appointment of respondents no.3 and 4. It is also admitted case of the parties that the original Rule 20 of the rules was amended on 1.10.1990. The State-respondent has also supported the impugned order on the basis of a judgement of the Hon'ble Suprme Court in case of Parminder Singh Bains Vs. State of Punjab. The short and only question requiring determination in the present petition is whether the seniority is to be governed by the unamended or the amended Rule 20 of the rules. Facts from CWP No. 9712 of 2007 Petitioners in this case were also appointed by direct recruitment on the basis of the competitive examination conducted by the Commission under proviso to Rule 5 of the rules as applicable to the State of Haryana. They joined their service on 16.5.1994. Respondents no.2 to 10 also participated in the selection pursuant to advertisement issued in June, 1992 but could not be appointed against the advertised vacancies. Respondent no.2 filed CWP No. 6057 of 1994 seeking appointment against the vacancies becoming available up to the date of interview. The said writ petition was dismissed by the High Court, however, the Hon'ble Supreme Court set aside the judgement of the High Court and issued directions for appointment of the candidates against the vacancies accruing up to the date of interview in the reported judgement of the Hon'ble Supreme Court in case of Virender Singh Hooda Vs. State of Haryana reported as 1999 (3) SCC 696. Similarly, respondents no.3 and 5 also filed CWP no. 17792 of 1991 and CWP No. 5037 of 2000 claiming the same relief. These two writ petitions were also decided vide common judgement dated 8.9.2000 by a CWP. No. 3549 of 2007 -7- Division Bench of this Court and the writ petitions were allowed in terms of the judgement of Hon'ble Supreme Court in Virender Singh Hooda's case (supra). Similar writ petitions came to be filed by respondents no.7, 9 and 10. These writ petitions were also decided vide judgement dated 30.1.2001 granting similar relief. Respondent no.8 also filed CWP No. 2157 of 2000 which was also decided in terms of the judgement in Virender Singh Hooda's case. As a consequence of various directions issued in various writ petitions the private respondents no.2 to 10 were appointed between 10.12.1999 to 3.1.2005. Attempt of the respondent-State to challenge the judgements passed by the High Court in various writ petitions, referred to above after Virender Singh Hooda's judgement before the Hon'ble Supreme Court, however, failed. In one of the case filed by one Sandeep Singh on the basis of the judgement in Virender Singh Hooda's case the Hon'ble Supreme Court, however, finally put a stop on further claims on the basis of the selection of 1993 and while granting relief to the writ petitioners in the said case gave benefit of appointments prospectively. This judgement is reported as 2002 (10) SCC 549. In view of the various judgements referred to above, the State of Haryana enacted Haryana Civil Services (Executive Branch) and Allied Services and other services Common/Combined Examination Act, 2002. Making provisions that no appointment can be made to any post or service covered by the said Act beyond the number of advertised posts. The vires of this Act were challenged, however, the Hon'ble Supreme Court vide its judgement reported as Judgements Today 2004 (9) SC 293 upheld the vires of the Act except Section 4(3), whereunder the services of the persons appointed pursuant to the court directions were sought to be dispensed with. CWP. No. 3549 of 2007 -8- The State of Haryana issued the tentative seniority list of the members of the service on 12.8.2005 under Rule 20 and invited objections from the concerned. The petitioners filed their objections dated 6.3.2006 in respect to the seniority position of respondents no.2 to 10, who were placed in the seniority list over and above the petitioners on the basis of the same directions issued in Virender Singh Hooda's case. The petitioners also approached the Hon'ble Supreme Court seeking clarification of the judgement in Virender Singh Hooda's case. The said clarification application was, however, disposed of vide order dated 1.5.2006 with the following observations:- “ No clarification of our judgement is called for. In case, the applicants are aggrieved by the seniority list, it will be for them to challenge in accordance with law, which aspect will be decided on its own merits. The application is disposed of accordingly.” Objections filed by the petitioners to the tentative seniority list have been rejected vide the impugned order dated 12/13.12.2006 (Annexure P-1) and respondents no. 2 to 10 have been placed over and above the petitioners. The petitioners are aggrieved of the aforesaid order rejecting the objections of the petitioners in respect to the seniority. Vide the impugned order the State has justified the placement of the private respondents over and above the petitioners in view of the observations of the Hon'ble Supreme Court in Virender Singh Hooda's case, wherein they were directed to be placed immediately below the candidates selected and appointed pursuant to the result declared by the Commission on 19.6.1999. It is, accordingly, stated that the petitioners were appointed in the year 1994 and private respondents were appointed, though, later in time but pursuant CWP. No. 3549 of 2007 -9- to the directions of the court and in view of the directions of Virender Singh Hooda's case, they are to be placed below the appointees of 1992 advertisement and above the petitioners, who were appointed in the year 1994. It is further mentioned that the private respondents were adjusted against the vacancies occurring prior to 1.10.1992. With a view to appreciate the respective contentions of the parties, it is deemed necessary to notice some of the relevant rules. Rule 5 relates to the appointment, rule 6 deals with the maintenance of the registers, rule 17 deals with the appointment from registers in rotation and rule 18 deals with the order of appointment of candidates from the registers, whereas rule 20 relates to seniority. Rules 5,6, 17 and 18 are reproduced hereunder. Rule 20 prior to amendment and after the amendment is also noticed hereunder:- “ Rule 5. Members to be appointed by the Governor of Haryana from among accepted candidates- Members of the service shall be appointed by the Governor of Haryana from time to time as required from among accepted candidates whose names have been duly entered in accordance with these rules in one or other of the registers of Accepted Candidates to be maintained under these rules: Provided that if in the opinion of the State Govt. the exigencies of the service so require, the State Govt. may make special recruitment to the service by such methods as it may be notification specify, after consultation with the Public Service Commission.” xxx xxx xxx 6. Registers to be maintained-The following Registers of Accepted Candidates shall be maintained by the Chief Secretary, namely:- CWP. No. 3549 of 2007 -10- (a) Register A-I of District Revenue Officers, Tehsildars and Naib Tehsildars accepted as candidates; (b) Register A-II of members of Class III service accepted as candidates; (c) Register-B of persons accepted as candidates on the result of a competitive examination; and (d) Register C of Block Development and Panchayat Officers.” xxx xxx xxx 17. Appointment of registered candidates to service- The Governor of Haryana shall ordinarily make appointments to the service in pursuance of rule 5 from amongst candidates whose names are entered in the various registers in rotation as follows:- From Register B two candidates From Register A-I one candidates From Register B two candidates From Register A-II one candidate From Register B three candidates From Register A-I one candidate From Register B two candidates From Register A-II one candidate From Register C one candidate From Register B three candidates From Register A-I one candidate From Register B two candidates From Register A-II one candidate From Register B two candidates From Register A-I one candidate From Register B three candidates From Register C one candidate and thereafter in the same rotation beginning again from Register-B.” xxx xxx xxx CWP. No. 3549 of 2007 -11- 18. Order of appointment of candidates- Candidates on the different registers shall ordinarily be appointed to the service in the order in the which they are selected and there names entered in the respective registers.” xxx xxx xxx 20. Seniority of members of service (prior to 01.10.1992) (1) The seniority of members appointed to the service shall be determined in accordance with the rotation prescribed in Rule-17, irrespective of the fact whether or not this rotation is actually followed while making appointments; Provided that the order of merit determined by the Selection Committee or Public Service Commission as the case may be in respect of persons appointed from various registers shall not be distrubed: Provided further that in the case of an ex-emergency commissioned officer, an ex-short service commissioned officer, or an ex- serviceman appointed to the service, benefit of seniority on account of military service, may be given with due regard to the provisions of the Punjab Govt. National Emergency (Concessions) Rules, 1965: Provided further that (a) If the name of any candidate is removed from the register of accepted candidates or the list of special recruits or the order of his appointment is cancelled under the provisions of rule 19, and such candidate is subsequently appointed to the service, his seniority shall be fixed keeping, in view the date of his actual appointment; (b) In the case of members appointed to the service through special recruitment under the proviso to rule 5, the seniority shall be fixed by the CWP. No. 3549 of 2007 -12- State Govt. in the order of merit determined by the Selection Committee or the Public Service Commission, as the case may be and they shall be placed below the members appointed through regular registers against vacancies n respect of the same year in which the special recruitment is made. The seniority inter se of persons appointed through special recruitment from various sources shall be fixed in blocks arranged according to descending order of pay scales of the posts from which recruitment is made, in which at least one person from each source shall be included, but if the member of persons appointed from a source is four or more, two persons from that source shall be included in the block. The second and subsequent blocks shall, if necessary, be repeated to include all available persons from various sources. If the pay scales of two or more posts from which recruitment is made are the same then the seniority of such members shall be determined by the length of their service in such posts and if the length of their service is also the same the elder member shall be senior to the younger. (2) If there are any cases which are left uncovered by the principles enunciated above they would be decided by the Govt. on just and equitable grounds.” xxx xxx xxx 20. Seniority of members of service (after amendment mad on 01.10.1992):- (1) The seniority of members appointed to the service shall be determined from the date of their appointment; Provided that the order of merit determined by the Public Service Commission or the Selection Committee as the case may be, in respect of persons appointed from registers prescribed in rule 6 or through special recruitment under the proviso to rule 5 shall not be disturbed. CWP. No. 3549 of 2007 -13- (2) If the name of a candidate is removed from the register of accepted candidates or the list of special recruits or the order of appointment is cancelled under the provisions of rule 19, and such candidate is subsequently appointed to the service, his seniority shall be determined from the date of such subsequent appointment.” I have heard learned counsel for the parties at length and perused the record. Impugned orders in these writ petitions are sought to be defended on two counts. (1) The vacancies against which the private respondents were appointed relate to the period 1985 from the concerned registers and thus they are to be appointed against the slot meant for the concerned register in accordance with Rule 17. The submission is that the respondents on their appointment will be deemed to have been appointed on the dates the vacancies accrued. It is contended on behalf of the respondents particularly in CWP No. 3549 of 2007 that though the process was initiated in the year 1985, however, on account of the interim stay selection/appointment from Register A-1 has not been made and on disposal of the writ petition when the selection has been made, these respondents are to be granted the benefit of deemed date of appointment from the date of accrual of the vacancies. (2) The process of appointment was initiated prior to amendment of the seniority Rule 20 i.e. 1.10.1992, unamended Rule 20 will determine the seniority and not the amended Rule 20. It is contended on behalf of the respondents that unamended Rule 20 provides for determination of seniority of the members in accordance with the rotation prescribed under Rule 17. Sub Rule 1 of Rule 20 prescribes the fixation of seniority in accordance with rotation prescribed under Rule 17 CWP. No. 3549 of 2007 -14- irrespective of the fact whether or not this rotation is actually followed while making these appointments. Laying emphasis on the expression “irrespective of the fact whether or not this rotation is actually followed while making appointments”, it is vehemently argued that the rule clearly requires the seniority to be determined on the basis of the slots available for particular source at a given time, even, if, no appointment was actually made at the relevant time. The contention is that the rule of Rota will apply for determination of the seniority in view of the quota prescribed under Rule 17 for different registers/sources. The only restriction is the adherence to inter se merit as determined by the Commission from various registers. Mr. Dhindsa, learned counsel appearing on behalf of respondents has relied upon a judgement of the Hon'ble Apex Court in case of Arvinder Singh Bains Vs. State of Punjab and others reported as J.T. 2006 (11) SC 553. In this case the recruitment was made to Punjab Civil Services (Executive Branch) vide advertisement issued in the year 1980 for direct recruitment. The vacancies for direct recruitment in fact occurred between 1978 to 1982. The vacancies were filled up in the year 1986. The direct recruits claimed seniority on the basis of the roster points prescribed under Rule 18 of the 1976 Rules. Under Rule 18 a roster for 100 vacancies was prescribed for filling up of such vacancies from various registers. Every 3rd vacancy was to be filled up from Register-B i.e by direct recruitment. Hon'ble Supreme Court considering the issue and the mandate of Rule 18 directed the fixation of seniority of the candidates in accordance with the rotation of vacancies prescribed under Rule 18. This judgement has also been relied upon by the respondent- State while fixing the seniority of the private respondents over and above CWP. No. 3549 of 2007 -15- the petitioners. From the perusal of Rule 18 reproduced in the aforesaid judgement, it is evident that rule is mandatory in nature. The relevant extract of the rule reads as under:- “ 18. Appointment of accepted candidates to the service. The Govt. shall make appointments to the service in pursuance of Rule 7 from amongst the candidates entered on the various Registers in a slab of 100 vacancies as follows.” Considering the mandate of the rule, the seniority was directed to be fixed by applying the Rota. The 2nd contention of the respondents that the unamended Rule 20 has to be applied to determine the seniority. Unamended Rule 20 has been reproduced herein above. Under this rule, the seniority is to be determined on the basis of the rotation of the vacancies prescribed in Rule 17 meaning thereby the rule prescribes Rota in view of the quota provided under Rule 17. It is the case of the respondents that since the vacancies pertain to period prior to amendment of Rule