LPA No.1080 of 2009 (O&M) 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. LPA No.1080 of 2009 in in CWP No.1960 of 2008 Date of decision: 26.10.2009 Baldev Singh and others ..Appellants. vs. Pritpal Singh and others ..Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR. --- Present: Mr.Deepak Sibal, Advocate, for the appellants. Mr.Rajive Atma Ram Senior Advocate, with Ms.Simran Chahal, Advocate, for respondent No.3 . -- J.S.KHEHAR,J. (Oral) It is necessary to notice a few facts before dealing with the sole contention advanced by the learned counsel for the appellants. We are accordingly noticing these facts in the following paragraphs. All the appellants and respondent No.3 were inducted into the Punjab Works Department (Irrigation Branch) as Sub Divisional Engineers from 1978 to 1982. They came to be promoted further as Executive Engineers by way of reservation in 1992, and thereafter to the higher rank of Superintending Engineer in 2001, again by way of reservation. As against the aforesaid, respondent No.1 was inducted into service as a Sub Divisional Engineer on 1.6.1976. Being a general category candidate, he came to be promoted as Executive Engineer on 30.12.1996 i.e., after the appellants and respondent No.3. But then he caught up in 1996 before the appellants and respondent No.3 were further promoted as LPA No.1080 of 2009 (O&M) 2 Superintending Engineers. Pritpal Singh, respondent No.1, was eventually promoted to the rank of Superintending Engineer, against a general category post, on 29.12.2005. The State government through various orders determined the seniority of the appellants and respondent No.3, above Pritpal Singh respondent No.1. Pritpal Singh impugned the aforesaid orders by approaching this Court by filing CWP No.1960 of 2008, assailing the action of the authorities in placing him below the appellants and respondent No.3. The aforesaid writ petition was allowed on 9.9.2009, inasmuch as, Pritpal Singh was held to be senior to all the appellants and respondent No.3. The order passed by the learned Single Judge dated 9.9.2009 disposing of CWP No.1960 of 2008, is subject matter of challenge through the instant Letters Patent Appeal. The solitary contention of the learned counsel for the appellants before this Court in the present Letters Patent Appeal, is based on the policy instruction dated 15.12.2005. The aforesaid policy instruction, which was available on the record of the writ petition as Annexure P3, is being extracted hereunder:- “ I am directed to refer to the subject noted above and to say that the Constitution (Eighty Fifth) Amendment Act, 2001 has amended Article 16(4A) of the Constitution of India to inter alia allow “Consequential Seniority” in matters of promotion of Scheduled Caste and Scheduled Tribe employees to any class or classes of posts. 2. After careful consideration of the matter and also keeping in view the interim orders of the Hon'ble Supreme Court and the present status of the case pending in the Apex LPA No.1080 of 2009 (O&M) 3 Court, it has been decided that Scheduled Caste employees promoted to any class or classes of posts under the reservation policy, will be prospectively entitled to “Consequential Seniority” on the post to which they are promoted. 3. These instructions shall come into force w.e.f.17th November 2005 and shall be applicable to the posts falling vacant in future in all cadres. They are also subject to the final decision of the Hon'ble Court in IA No.2 in Writ Petition (Civil) No.61/2002-M Nagraj and others Versus Union of India and others and writ petition (Civil) No.234/2002-All India Equality Forum and others Versus Union of India and others and other allied cases”. Before we deal with the claim of the appellants based on the policy instruction dated 15.12.2005, it is relevant to notice, that learned counsel for the appellants acknowledges, that in the absence of the policy instruction dated 15.12.2005, the seniority position between respondent No.1 on the one hand, and appellants and respondent No.3 on the other hand correctly, must be accepted as correctly determined by the learned Single Judge. It is therefore, that we take upon ourselves the task of examining the solitary contention of the learned counsel for the appellants, whether the policy instruction dated 15.12.2005 (extracted above) would have the effect of reversing the seniority position of the parties. We have been taken through the policy instruction dated 15.12.2005 repeatedly. We have also collectively and harmoniously considered the import thereof by reading paragraphs 2 and 3. In our considered view, the policy instruction dated 15.12.2005 “... shall be applicable to the posts falling vacant in future in all cadres...”.Thus viewed, there cannot be any serious dispute about the fact that, the submission of the learned counsel for the appellants will have to be determined on the LPA No.1080 of 2009 (O&M) 4 basis of the date of arising of the vacancies against which the appellants and respondent No.3 on the one hand and respondent No.1 on the other hand, were promoted from time to time. Since the claim to seniority by the appellants and respondent No.3 is based on their promotion to the higher cadres of Executive Engineer and Superintending Engineer, the date of their promotion can be a relevant basis for determining the applicability of the policy instruction relied upon (although there can hardly be any dispute that the said posts must have become available, well before, their actual promotion). The factual position in this behalf has been depicted in the opening paragraph of this order. It is apparent therefrom, that all the vacancies against which the appellants, as also respondent No.3, were promoted, arose before 17.11.2005/15.12.2005. As such, we are satisfied, that the policy instruction dated 15.12.2005 would not be relevant for determining the the issue of seniority between appellants and respondent No.3 on the one hand, and respondent No.1 on the other hand. Since we have concluded, hereinabove, that the policy instruction dated 15.12.2005 are inapplicable to determine the claim of the appellants, we are of the view, that it is wholly unnecessary for us to examine the effect thereof, had the same been applicable. For the reasons recorded hereinabove, we find no merit in this appeal, and the same is accordingly dismissed. ( J.S.Khehar) Judge ( Mehinder Singh Sullar) Judge October 26, 2009 rk LPA No.1080 of 2009 (O&M) 5