IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 4090 of 2011 . Decided on: July 19, 2011. Lal Singh. Vrs. State of H.P. & ors. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: For the respondents: Ms. Ranjana Parmar, Advocate. Mr. R,.K.Bawa, AG, with Mr. Ankush Dass Sood, Addl. AG & Mr. J.K.Verma, Dy. AG for respondents No. 1 to 4. Mr. Naresh Kaul, Advocate, for respondent No. 5. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. (Oral) Offer of appointment versus order of appointment and the impact on the seniority of the appointee is the issue arising for consideration in this case. Probably, such a strange procedure would arise only in a few situations, in view of the requirements attached to a particular service. We are concerned with the appointment to the post of Constable (Radio Technician) in the Wireless Wing of the police department. The process of recruitment was held between 20th July, 1980 to 23rd July, 1980 and the selection committee met thereafter and prepared a merit list. The minutes of the selection committee is attached as Annexure P-10 dated 30.1.1981. The minutes concludes as follows:- “The details of marks obtained by these candidates is at Annexure ‘A’ and the merit list of candidates is at Annexure ‘B’. 2. That Annexure B, merit list of the selected candidates is produced by the private respondent as Annexure R-5/2. The private respondent is at No. 1 in the merit list and the writ petitioner is at No. 29. The minutes also made the following observation:- “Names of those candidates who do not satisfy the minimum standards of height and chest are underlined in red ink.” 3. Based on the merit list, thus prepared by the selection committee the writ petitioner was initially given a communication dated 12th February, 1981, which is produced along with sur-rejoinder as PR-I (available at pages 213 & 214 2 of the paper book). The subject of that communication (memorandum) is Enlistment of Constable Radio Technicians. Since the memorandum dated 12th February, 1981 has a significant bearing on the outcome of the case, the same is reproduced as such: “To Sh. Lal Singh, s/o Sh. Inder Singh, r/o Darwar, PO Chunahan, Distt. Mandi, H.P. Subject: Enlistment of Constable Radio Technicians. Memorandum: With reference to your test and interview held at Simla from 20.7.1980 to 23.7.1980 for the post of Constable Radio Technicians, you are hereby offered the temporary post of Constable Radio Technician in the pay scale of Rs. 400-10-450/15- 600/20/660 (with initial start of Rs. 420/- p.m.) plus Rs. 30/- p.m. as special pay with usual allowances attached to the post on the following terms and conditions. In case these conditions are acceptable to you, you should report in the office of the undersigned immediately but not later than 25th February, 1981 failing which the offer will be withdrawn and cancelled. TERMS AND CONDITIONS: 1. You will be enlisted under section 2 of the Police Act (No. V of 1861) and your services will be governed by the Himachal Pradesh Police Rules from time to time. 2. You will have to undergo 12 week’s R.T.C. immediately after your enlistment and thereafter you will be required to undergo 6 week’s practical training in Radio Workshop of this organization in suitable batches according to the administrative convenience and inter-se seniority of the recruits drawn and after which you will be required to qualify the suitability test to determine your retention in the service. If you fail to secure 50% marks in the suitability test, you will be given one more chance to qualify in the said test after a period of six months failing which you will be liable to be discharged. 3. You will be required to qualify the test prescribed for the admissibility of Special Pay after you have gained practical experience in the repairs and maintenance of the Wireless Equipment for a period of 6 months independently from the date of qualifying the retention test. 4. Your promotion to the higher ranks in this organization will be regulated under the departmental promotion rules and subject to 3 your qualifying the gradation test which may be prescribed for each rank from time to time. 5. Your services as Constable Radio Technician will be terminable at the discretion of the undersigned as provided for in the Himachal Pradesh Police Rules. 6. You will be required to serve anywhere in the Himachal Pradesh Territory. 7. You shall have to produce a medical fitness certificate of the Chief Medical Officer of Simla District before joining duty in this department. 8. No TA/DA will be admissible to you for joining this post. 9. The post is purely temporary for the present but likely to be made permanent. 10. You will have to furnish certificate to the effect that you have one wife living, if married.” 4. According to the petitioner, based on the offer of appointment, he produced the medical certificate and satisfied the other requirements and hence he was given appointment. That appointment order is dated 12.3.1981 produced as Annexure P-2 (at running page 27 of the paper book). The appointment order, reads as follows: “No. 12-12/Wireless/81- Office of the Superintendent of Police, Wireless, H.P., Hotel Hill View, Sanjauli, Simla-171006. Dated Simla-6, the th March, 1981. “APPOINTMENT ORDER” After having been declared medically fit by the Chief Medical Officer Simla district Simla, Sh. Lal Singh, s/o Sh. Inder Singh, r/o Darwar, PO Chunahan, District Mandi (Himachal Pradesh), is enlisted as temporary Constable Radio Technician against one of the existing vacancies in H.P. Police Wireless Organisation in the Scale of Rs. 400-10-450/15-600/20-660 (with initial start of Rs. 420/-) P.M. with usual allowances attached to the post w.e.f. 24.2.1981 (F.N.) on the terms and conditions already conveyed to him through letter of offer issued vide this office letter No. 12-12/Wireless/81-1713, dated 12.2.81 and accepted by him. Superintendent of Police, Wireless, H.P. Hotel Hill View, Sanjauli, Simla-171006.” 4 5. In the case of the private respondent, it is the contention of the petitioner that he did not have the eligibility for appointment and hence he was not appointed alongwith the petitioner. Reference is invited to Annexure R-5/14 (at page 123 of paper book). It appears, the specific date as such is not seen on the offer of appointment but the same is issued in February, 1981. There also the subject is enlistment of Constables (Radio Technicians) and it is not in dispute that the same is an offer of appointment to the private respondent, as extracted above. The terms and conditions are the same with the only difference that he had to express his willingness to accept the job before 5th March, 1981. It is seen that in his case also the order of appointment is dated 12.3.1981 as can be seen from Annexure R-5/15 (at page 134 of the paper book). It is also seen that the petitioner had been issued letter dated 12.2.1981, which is produced as Annexure P-11 in the paper book. The order read as follows: “No.12-12-/Wireless/81- From The Superintendent of Police, Wireless, HP Hotel Hill View, Sanjauli, Simla-171006. To Sh. Sita Ram S/o Sh. Mangat Ram, R/o Nohal, P.O. Biar, Teh. Barsar, Distt. Hamirpur (H.P.) Dated Simla-6, the 12th Feb, 1981. Subject: Recruitment. Memo: Reference your Test and interview for the post of Constable (Radio Technician) held at Simla from 20.7.80 to 23.7.80. From the perusal of your result, you seem to be suitable for appointment as Constable Radio Technician in this organization, but you do not fulfil the physical standard prescribed for enlistment in the police department. You are, therefore, advised to report in this office for physical measurement again on 25.2.81 positively, failing which your candidature for the above said post will be cancelled. In case your physical standard on measurement is found upto the merit, you will be given letter of appointment on the spot. No T.A./D.A. will be admissible. Superintendent of Police, 5 Wireless, H.P. Hotel Hill View, Sanjauli, Simla-171006.” 6. It is the contention of the petitioner, based on Annexure P-11 read with offer of appointment and appointment order that though the petitioner and the private respondent were included in the same merit list, the petitioner was selected first since he satisfied the requirements for the appointment and the private respondent was selected only after the petitioner was selected, appointed and joined duty. In such circumstances, it is contended that the petitioner is entitled to seniority over the private respondent though the private respondent is fairing as No. 1 in the merit list which according to the petitioner is only a ‘nominal list’. We are afraid, that expression of ‘nominal list’ is nowhere found in the proceedings since the Selection Committee has used the only one expression, ‘merit list’. We have also seen the original records wherein also it is seen that the Committee has prepared only one merit list in which the private respondent fairs at Sr. No. 1 and the writ petitioner fairs at Sr. No. 29. 7. The Writ Petition is filed mainly with the following prayer: “i) that seniority lists dated 16.3.2011 and 17.3.2011 and 18.3.11 may kindly be quashed an set aside and the respondents may kindly be directed to prepare the seniority of Constables strictly in accordance with the judgment rendered by this Hon’ble Court in LPA No. 53 of 2009.” 8. The issue in principle was decided by this Court in a Writ Petition filed by the private respondent, culminating in appeal, LPA No. 53 of 2009 decided on 8.12.2010. True, the writ petitioner herein is not a party but similarly situated persons are parties, but he had also filed a third party review. The judgment is Annexure P-8 (at page 39 of the paper-book). Paragraphs 5 and 6 of the judgment read as follows: “5. The post of Constable/Radio Technician pertains to the lower subordinate staff category. As far as the fixation of seniority of lower subordinate staff is concerned, the Rule provides that the same will be reckoned from the date of appointment. Rule 12.24 has nothing to do with the dispute herein since the same pertains to the fixation of seniority in the matter of Ex-Servicemen/Ex-Police Officers etc. 6 6. Once it is prescribed in the rules that the seniority in a cadre will be reckoned or fixed from the date of appointment, that does not mean that the same be reckoned or fixed from the date of joining duty. The appointment is made from a select list prepared on the basis of merit. All appointments are made on the same date. If the date of joining duty is taken as the norm, the person nearest to the Headquarters will always get the advantage of joining first in the station. That will be unjust and unreasonable. Therefore, the Rule making authority has consciously provided the norms that the seniority will be fixed on the basis of the date of appointment. Once the date of appointment is taken as a norm among candidates appointed on the same day, their inter se seniority has to be fixed on the basis of merit in the select list. That shall not depend upon the fact as to whose appointment order has been first signed or first dispatched, or who has joined duty first from the list. Therefore, the seniority in the case of lower subordinate staff in the category of constable/Radio Technician shall be fixed on the basis of the date of appointment. In the case of all those who are appointed on a particular date, their inter se seniority shall be fixed on the basis of their merit in the select list.” 9. The writ petitioner herein, sought for a third party review of the judgment. The same was dismissed by order dated 18.3.2011, as per Annexure R- 5/7, (at page 107 of the paper-book). He is the second petitioner in the review petition. The text of the order, reads as follows: “This is a review petition at the instance of the third party. The review petitioners seek review/modification of the judgment dated 8.12.2010 in LPA No.53 of 2009. In the said judgment, this Court has only laid down a principle as to how the seniority has to be settled in the case of all those who are covered by the same order and the same date of appointment. It was noticed by this Court that seniority was erroneously fixed on the basis of date of joining. This Court held that in the case of seniority, all those persons covered by the same order of appointment and the same date of appointment, the seniority can be fixed only on the basis of merit as fixed in the select list and in the case of the persons where there is no such order by merit, the elder will rank above the younger in age indicated. That is a well settled principle in service jurisprudence. We do not find any ground for reviewing the judgment. The review petition is dismissed. 7 2. Learned counsel for the petitioners submits that the review petitioners have been enjoying the benefit of seniority and consequential benefit of promotion for long time and on account of the implementation of the judgment, they would be reverted. Still further it is submitted that they are on the verge of retirement. These grievances, the petitioners may bring to the notice of the Government so that the Government will get an opportunity to explore the possibility to balance the equity. 3. Learned counsel for the petitioners further submits that the Government may be directed to create supernumerary posts till the retirement of the petitioners. This aspect, the Government may have to consider in accordance with law when they approach the Government. 4. With these observations, the review petition is dismissed, so also the pending applications, if any.” 10. The prayer of the writ petitioner is to implement the judgment in letter and spirit. A bare reading of the judgment and the order in the review petition filed by the petitioner alongwith another makes it very clear that the seniority has to be based on the merit list, in case the date of appointment is the same. Though the writ petitioner has made a strenuous effort to establish that the offer of appointment dated 12.2.1981 is the appointment order, the naked fact is that there is an appointment order as such dated 12.3.1981 in the case of the constables including the petitioner and the private respondent. In other words, though the offers of appointment are on different dates, the actual date of appointment is on the same date, namely 12.3.1981. No doubt, in the appointment order of the writ petitioner, he has been given the benefit of enlistment w.e.f. 24.2.1981 whereas in the case of the private respondent the enlistment is only w.e.f. 3.3.1981. The enlistment is granted in terms of Section 2 of the Police Act, 1861. Section 2 of the Act reads as follows: “2. Constitution of the force.- The entire police establishment under a State Government shall, for the purposes of this Act, be deemed to be one police force, and shall be formally enrolled, and shall consist of such number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government. 8 Subject to the provisions of this Act, the pay and all other conditions of service of members of the subordinate ranks of any police force shall be such as may be determined by the State Government.” 11. The chronology of events and the procedure for selection and appointment, as we have referred to above, give a clear indication that the candidates who are selected by the Selection Committee and included in a merit list are initially given an offer of appointment so as to ascertain their willingness to join the Force. The moment they give their willingness, they are assigned roll numbers. That has nothing to do with the appointment. It is only a list of willing candidates and for the purpose of administrative convenience, they are given roll numbers. They are appointed in service only by the formal order of appointment i.e. 12.3.1981 in the case of the Constables including the petitioner and the private respondent. That is discernable also from the service-books of the petitioner and the private respondent as well, which we have verified from the records produced before us. 12. Learned counsel for the petitioner inviting reference to the Handbook on Personnel Matters, Vol. I (Second Edition), dealing with appointment and probation, Chapter 11, has stated that the appointment order of every direct recruit must state the nature of appointment as to whether it is against a permanent post or a temporary one or whether it is adhoc and if so for what period. Paragraph 11.3, reads as follows: “11.3 Terms and conditions in the appointment orders of direct recruits. The appointment order of every direct recruit must state the nature of the appointment as to whether it is against a permanent post or a temporary one or whether it is adhoc and if so for what period. The appointment order must state that:- (i) the selected candidate should submit the following documents before joining the post:- (a) Attested copies of certificates for educational/ professional qualifications; proof as to date of birth; of belonging to the particular reserved category against which selection has been made etc. etc.; (b) Certificates of having only one living spouse or being unmarried; (c) Oath owning allegiance to the Constitution of India and maintaining secrecy on the prescribed forms; 9 (d) Medical fitness certificate form the Chief Medical Officer for non-gazetted posts and by the Board to be constituted by the Chief Medical officer for gazetted posts; (e) Letter accepting the terms and conditions of appointment order. (ii) the appointment is subject to:- (a) A probation period as per prescribed Rules with provision for extension; and that during or at the end of such probation or such extension thereof the services can be dispensed with in the public interest without assigning any reason. (b) All Recruitment and conditions of service rules as applicable or framed by the Govt. from time to time; (c) Termination of service on one month’s notice or pay and allowances in lieu thereof by the Government. (d) Passing of any test/examination e.g. typing test in case of Clerks and shorthand and type test for Stenotypists and Stenographers etc. within the prescribed period (consequences of failure to pass the same within the prescribed period should be specified). (e) Passing of Departmental Examination if any within the prescribed period (consequence of failure to pass the same within the prescribed period should be specified).” 13. It is significant to note that paragraph 11.3, deals also with a condition regarding letter accepting the terms and conditions of appointment order. The appointment par se is dealt with at paragraph 11.6 with the title‘ Order of Appointment’. 11.6 to the extent relevant, reads as follows: “11.6 Order of appointment All appointments whether in direct recruitment or by promotion are to be made strictly in order of the combined select list, unless the name of some one has to be dropped because of being medically unfit or character and antecedents being not satisfactory in the case of the direct recruitment. In the case of promotions too, the order of the select list is to be followed unless the promotion is to be held up because of subsequent events which warrant the adoption of the sealed cover procedure as given in para 7 of Govt. of India, Ministry of Personnel, Public Grievances and Pensions O.M. No. 22011/4/91- Stha (ka) dated 14.9.1992, circulated with H.P. Govt. Deptt. of Personnel O.M. No. Per (AP- II) A 3-1/79-II dated 3.12.1992 (Annexure 16.33 in Chapter 16).” 14. Order of appointment, whether in direct recruitment or by promotion are to be made strictly in the order in the select list unless the name of someone has been dropped because of being medically un-fit or character 10 antecedents being unsatisfactory, in the case of direct recruits. Therefore, even the Handbook on Personnel Matters in the matter of procedure for appointment contemplates an initial offer for appointment and the subsequent order of appointment. The offer of appointment when accepted, in the case of police personnel, they are given a roll number whereas their seniority will count only from the date of appointment. It is a well accepted principle in service jurisprudence as well that when the date of appointment is the same, seniority will be decided as per the merit in the select list. That alone has been done in the instant case. There is no basis or merit in the contention of the petitioner that there are two separate selections, the initial selection of the writ petitioner of eligible candidates and subsequent selection of ineligible candidates. There is no challenge to the appointment of the private respondent. There is also no challenge to the chance given to the private respondent to satisfy the requirement in terms of the eligibility prescribed at Rule 12.5 of the Punjab Police Rules regarding the physical measurement. The private respondent and similarly situated persons having satisfied the requirements under the Rules were given the appointment on 12.3.1981 alongwith the writ petitioner and if that be so, their inter se seniority has to be decided as held by this Court in the judgment, as extracted above, only in terms of their merit as reflected in the merit list prepared by the Selection Committee (Annexure PB). 15. In the above circumstances, we do not find any merit in the Writ Petition and the same is accordingly dismissed. Interim order dated 7.6.2011 stands vacated with the direction to the respondents to settle the seniority in terms of the judgment dated 8.12.2010, if not already settled and take further action in the matter of appointments and postings, within two weeks. (Justice Kurian Joseph), Chief Justice. July 19, 2011. ( Justice V.K. Ahuja), (karan/vs) Judge.