IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 295 of 2001. Judgment reserved on: 8.12.2009 Date of decision: 6.1.2010 Shri Karan Singh and ors. ….. Petitioners Versus State of H.P & anr. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting ? Yes For the petitioners: Shri Ajay Mohan Goel, Advocate. For the respondents: Shri Rajesh Mandhotra, Deputy Advocate General, for respondents No.1 and 2. Ms.Salochna Kaundal, Advocate, vice Mr.O.P.Thakur, counsel, for respondent No.4. _________________________________________________ Deepak Gupta, J. This writ petition is directed against the order of the erstwhile H.P State Administrative Tribunal dated September 26, 2000 passed in O.A 2 No.881 of 1991 whereby the Original Application filed by the petitioners has been rejected. Briefly stated the facts of the case are that most of the petitioners were appointed as Patwaris in the Settlement Department in the year 1983. Admittedly none of the petitioners had cleared the Patwar examination prior to their appointment. A seniority list was issued on July 6, 1988 depicting the seniority of Patwaris in the Settlement Department as on 30.11.1987. In this seniority list, the petitioners were given seniority on the basis of the date of appointment. According to the petitioners, they had no complaint against the position given to them in the said seniority list. On 5.11.1990 the seniority list was finalized and in this final seniority list, the petitioners were shown junior to a number of other persons. According to the petitioners, the State followed three different criteria in determining the seniority list of the Patwaris. In the case of Patwaris recruited upto 1981, the seniority was determined on the basis of the date of appointment and for Patwaris recruited after the said date, the seniority has been 3 determined on the basis of the date of qualifying the departmental examination, i.e., Patwar Examination. Again in respect of Patwaris from Serial No.414 onwards of the final seniority list, the seniority has been fixed according to the date of joining and not according to the date of appointment or passing of the Patwar Examination. The petitioners prayed that the final seniority list be quashed and their seniority be determined on the basis of date of appointment and notification dated May 9, 1991 awarding senior scale to 50% Patwaris ignoring the claim of the petitioners be set aside. Though it has been argued before us that the State did not followed three different criteria but the fact is that in the reply filed before the learned Tribunal as well as in the reply filed before this Court, the State has categorically admitted that prior to 30.11.1987, the criteria for determining the seniority of Patwaris was the date of appointment. However, on 6th July, 1988 the Settlement Officer, Kangra issued a letter directing that the name of the Patwaris who have not finally qualified the Patwar Examination will not be included in the seniority list. Their seniority 4 would be prepared separately on the basis of date of appointment. When they qualify the Patwar Examination, their names would be included in the seniority list below the Patwaris who had already qualified the Patwar Examination. It is on the basis of this letter that the final seniority list was prepared. The learned Tribunal held that the seniority was fixed in accordance with the letter dated 6th July, 1988 and according to the Tribunal, if two Patwaris had been appointed on the same date, the one who passed the Patwar Examination should be treated as senior and rejected the Original Application. Hence the present writ petition. We have heard Shri Ajay Mohan Goel, learned counsel for the petitioners, Sh.Rajesh Mandhotra, learned Deputy Advocate General on behalf of the State and Ms.Salochana Kaundal, Advocate appearing vice Mr.O.P.Thakur, learned counsel for the private respondent No.4. At the outset, we may mention that while claiming seniority over and above other persons, the petitioners did not implead the affected persons as respondents in the Original Application. However, 5 some persons who were likely to be affected applied for being made parties and were arrayed as respondents. To understand the controversy between the parties, it would be pertinent to refer to certain provisions of the Himachal Pradesh Patwar Service Rules, 1949 which are contained in the Land Records Manual. Rule 3 of the said Rules provides that a register of Patwaris candidates should be prepared in the order in which the applications of the candidates are accepted. Rule 3(b) provides that the Patwari candidates can be appointed in the Settlement Office or in the office of Deputy Commissioner. Rule 5 reads as follows: (5) In a district under settlement an applicant who has shown a special aptitude for patwari’s work in the course of the settlement may be selected by the Settlement Officer as a patwari candidate, irrespective of the conditions of residence in the district provided he is otherwise qualified.” Rule 7 deals with the appointment of Patwaris by the Collector. It provides that the candidates who have not passed the Patwari Examination must not be appointed. Appendix-E 6 relates to employment of Patwaris in the Settlement Office. Clause 1 of this Appendix provides that no person should be appointed as a Settlement Patwari unless his name has been entered in the register of candidates for patwarship of some district in Himachal Pradesh. Normally a candidate should be appointed in the district to which he is registered. Clause 3 of the said Appendix provides that settlement patwaris who have not passed the patwari examination should be required to do so within one year and in case they do not pass the examination, they should not be granted increments and paid higher pay. Recruitment and Promotion Rules for the post of Patwari in the Settlement Wing provide that 100% posts are to be filled in by direct recruitment from qualified patwar candidates. Clause 18 gives power to the State Government to relax the Rules. A bare perusal of the aforesaid Rules shows that in fact it is only persons who have passed the Patwar Examination who are entitled to be inducted as Patwaris whether by the Collector or in the Settlement Department. The Rules do not in 7 fact envisage the appointment of any person who has not qualified the examination in question. However, Rule 3 of Appendix E clearly indicates that the State was aware that some persons may be appointed as Patwaris who have not passed the patwar examination and in their cases, they were not to get higher scale of pay till they qualified the Patwar examination. When the tentative seniority list was issued in December, 1987. a number of representations were received by the State Government. The State took a decision not to entertain any representation against the seniority list upto 30.6.1981 which had become final. It also decided that the seniority list would be prepared on the basis of the date of appointment. However, Clause 5 of the decision of the Land Settlement Officer, Kangra dated 6th July, 1988 reads as follows:- “5. The Patwaris who have not finally qualified the Patwar examination, their names will not be included in the seniority list. Their seniority list will be prepared separately on the basis of the date of appointments. As and when they will finally qualified the Patwar Examination, their names will be included in the seniority 8 list below the Patwaris who have already qualified the Patwar examination.” It is argued by Shri Ajay Mohan Goel, learned counsel for the petitioners that this clause is totally against the Rules and there is nothing in the Rules which enables the State Government to take such a decision that passing of the patwar examination is a prerequisite to be placed in the seniority list. We have gone through the entire record as well as the Rules. We find that in the year 1980, the State Government took a decision that in relaxation of the Rules, the experienced casual employees working in the Settlement Department could be appointed as Patwaris subject to the condition that they would not be given annual increment till they pass the patwar examination. The position which emerges is that some candidates who had already passed the patwar circle examination were appointed as Patwaris in the Settlement Department. Some persons who had not qualified the patwar circle examination were also appointed as Patwaris in the Settlement 9 Department but with the stipulation that they would not be given increments until they pass the patwar circle examination. Out of these persons, some later passed the patwar circle examination at an earlier date and some later. The respondents have now fixed seniority of these persons on the basis of the date of passing the patwar circle examination. After hearing learned counsel for the parties, we are of the considered view that when two candidates, one who is duly qualified and one who is not qualified but appointed by giving relaxation are appointed on the same date then if the rules are silent, the person who is duly qualified must rank senior to the person who is not qualified but appointed after giving relaxation on the same date. It is well settled law that unless the rules provide something to the contrary the date of appointment is the material data for fixing the seniority of employees. In case of appointments being made on different dates then the persons who are appointed on a prior date must rank senior to the persons appointed on a later date irrespective of the fact as to whether they had passed the patwar 10 circle examination or not. A duly qualified person who is appointed on a later date cannot be given seniority over and above a person appointed earlier to him even though that person may have been appointed in relaxation of the Rules. The action of the respondents in not at all taking into consideration the date of appointment but only taking into consideration the date of passing of the patwar examination while fixing the seniority is not legal. Another objection raised by the State is that the petition should be rejected on the ground that the persons who were to be affected have not been made parties to the petition. From a perusal of the record, we find that no such objection appears to be taken before the learned Tribunal. The Original Application was filed in the year 1991 and if such an objection had been taken, the petitioners may have impleaded the affected persons as respondents. Almost two decades after the litigation was started it would be totally unjust to reject the petition on this ground alone. In this case, we find that the very principles of determining inter se seniority adopted 11 by the State were illegal and not in accordance with the law. In view of the law laid down by the Apex Court in V.P.Shrivastava and others Vs. State of M.P. and others, 1996(7) SCC 759, the petition cannot be rejected on this ground. The Apex Court in this judgment observed as follows:- “14. The conclusion of the Tribunal that non-inclusion of the affected parties is fatal to the appellants’ case is also unsustainable in law. It is to be stated that the appellants do not challenge the so-called ad hoc appointments of the promotee respondents but they do challenge the position of the said ad hoc promotee respondents over the appellants in the seniority list. In other words the very principle of “determination of seniority” made by the State Government is under challenge and for such a case State is the necessary party who has been impleaded.” No Rule has been pointed out to us other than the letter dated 6th July, 1988. Nothing else has been shown to us in the Rules which would indicate that seniority is to be fixed as per the date of passing of the patwar circle examination. Reliance placed by the respondents on Rule 7(3) of the Patwar Service Rules is totally misplaced. This Rule only 12 provides that priority of entry in the register or of date of passing the patwari examination should be taken into account while appointing the patwaris but even this rule gives power to the Collector to appoint a more suitable candidate. There is no specific rule which lays down that seniority is to be governed by the date of passing of the examination. All that is laid down is that persons who do not qualify the patwar examination will not earn annual increments. This however, does not mean that they will lose their seniority. Seniority as normally understood in service law has to be reckoned on the basis of the date of appointment especially when the candidates are legally appointed even if they are appointed in relaxation of the Rules. In view of the above discussion, we allow the writ petition and set aside the order of the learned Tribunal. The final seniority list dated 5.11.1990 is quashed and the State is directed to recast the same in the following terms:- 1. In case of persons appointed on the same date, the persons who had already qualified the patwar circle examination will rank en bloc 13 ‘senior’ to the candidates who had not qualified the patwar circle examination but were appointed in relaxation of the Rules. 2. Even in case of those candidates who had not qualified the patwar circle examination, the seniority shall be determined on the basis of merit prepared by the Committee which made the appointment and in case no merit was prepared then the elder in age will be treated as senior. Date of passing of the patwar examination will have no relevance to fixation of the seniority. 3. In case of Patwaris appointed on different dates, the Patwaris even if not qualified who were appointed on a prior date will be granted seniority from the date of appointment and they shall not be placed junior to duly qualified Patwaris appointed later but who may have qualified the patwar examination on an earlier date. Once this seniority list is recast, the question of grant of senior scale obviously has to be decided afresh. After the seniority list is recast, the 14 petitioners shall be given all consequential benefits including monetary benefits, if any, on or before 31st May, 2010. The writ petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ) Judge January 6, 2010 (V.K.Ahuja) (m) Judge