Civil Writ Petition No.2986 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2986 of 2010 Date of decision:-30.8.2011 Krishan Dass ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. K.L. Arora, Advocate for the petitioner. Mr. Praveen Chander Goyal, Addl.A.G. Punjab. Mr. M.K. Garg, Advocate for respondent No.4. RITU BAHRI J. This writ petition under Article 226 of the Constitution of India for issuance of a writ of mandamus directing the respondents to give him all consequential benefits of pay and seniority on being absorbed in the Revenue Department after Consolidation Department wound up on 31.12.2002. The undisputed facts are that on 31.12.2002 the Consolidation Department, Punjab was wound up and consequently the petitioner has joined the Revenue Department in pursuance to the letter dated 28.12.2002 (Annexure P-1). He was relieved on 31.12.2002 and joined on 1.1.2003 pursuant to order dated 28.12.2002 (Annexure P-1). The petitioner was working as Senior Assistant in the Consolidation Department. Subsequently, vide order dated 15.4.2004 (Annexure P-2) seniority list was drawn and petitioner was given seniority w.e.f. 1.1.2003 in the cadre of Senior Assistant. Grievance of the petitioner is that while granting seniority to the Civil Writ Petition No.2986 of 2010 -2- petitioner his entire service rendered in Consolidation Department has been washed out. As per Rule 11 of Punjab District Service (Class-III) Rules, 1976 inter se seniority is to be determined from the length of continuing service on a post. Rule 11 of the 1976 Rules is reproduced below :- “11. The inter se seniority of members of the Service in each cadre of the Service shall be maintained district-wise and determined from the length of continuous service on a post in that cadre of the service : Provided that in the case of members appointed by direct appointment the order of merit determined by the recruiting authority shall not be disturbed in fixing the seniority and persons appointed as a result of the earlier selection shall be senior to those appointed as a result of subsequent selection. Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows :- (a) a member appointed by direct appointment shall be senior to member appointed otherwise; (b) a member appointed by promotion shall be senior to a person appointed by transfer; and (c) In the case of members appointed by promotion or transfer, seniority shall be determined according to the seniority of such members in the cadre from which they were promoted or transferred; and (d) In the case of members appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a member who was drawing a higher rate of pay in his previous appointment and if the rates of pay drawn are also the same then by their length of service in those appointments; and if the length of such service is also the same, an older member shall be Civil Writ Petition No.2986 of 2010 -3- senior to a younger member.” As per Rule 8 of the Punjab Civil Services (General & Common Conditions of Service) Rules, 1994 the inter se seniority of the persons appointed in each cadre of service shall be determined on length of service on any post. Rule 8 of the Rules, 1994 is reproduced below :- “8. Seniority:- The Seniority, inter se of persons appointed to posts in each cadre of a Service shall be determined by the length of continuous service on any post in the Service : Provided that in the case of persons recruited by direct appointment who join within the period specified in the order of appointment or within such period as may be extended from time to time by the appointing authority subject to a maximum of four months from the date of order of appointment, the order of merit determined by the Commission or the Board, as the case may be shall not be disturbed; Provided further than in case a person is permitted to join the post after the expiry of the said period of four months in consultation with the Commission or the Board, as the case may be, his seniority shall be determined from the date he joins the post; Provided further that in case any person of the next selection has joined a post in the cadre of the concerned service before the person referred to in the preceding proviso joins, the person so referred shall be placed below all the persons of the next selection who join within the time specified in the first proviso: Provided further in the case of two or more persons appointed on the same date their seniority shall be determined as follows :- (a) a person appointed by direct appointment shall be senior to a person appointed otherwise; (b) a person appointed by promotion shall be senior to a person appointed by transfer; Civil Writ Petition No.2986 of 2010 -4- (c) in the case of persons appointed by promotion or by transfer, seniority shall be determined according to the seniority of such person in the appointments from which they were promoted or transferred; and (d) in the case of persons appointed by transfer from different cadres, their seniority shall be determined according to pay, preference being given to person, who has drawing a higher rate of pay in his previous appointment and if the rates of pay drawn are also the same, then by the length of their Service in the appointments and if the length of such service is also the same, the elder person shall be senior to the younger member. Note:-Seniority of persons appointed on purely provisional basis or on adhoc basis shall be determined as and when they are regularly appointed keeping in view the dates of such regular appointment.” The petitioner is seeking the benefit of instructions dated 21.7.1978 (Annexure P-3) and made a representation against the tentative seniority list (Annexure P-2). Representations dated 13.5.2004 and 13.7.2004 are (Annexures P-4 and P-5). Petitioner's name has been recommended for promotion to Superintendent Grade-II vide letter dated 3.8.2004 (Annexure P-6). Vide letter dated 12.4.2005 (Annexure P-7) the Deputy Commissioner recommended the case of the petitioner for promotion. The petitioner was promoted as Senior Assistant on 1.5.1999 while working in Consolidation Department after being absorbed in the Revenue Department he has longest experience as Senior Assistant. He recommended that his representation against provisional seniority be disposed of and to give him promotion to the post of Superintendent Grade-II. Vide order dated 2.2.2010 (Annexure P-8) respondent No.4 has been promoted as Superintendent Grade-II. Mr. K.L. Arora, Advocate counsel for the petitioner has vehemently argued that respondent No.4 was Civil Writ Petition No.2986 of 2010 -5- appointed as Senior Assistant on 26.7.2001 whereas petitioner has been working as Senior Assistant in the Consolidation Department since 1.5.1999 for all intents and purposes he should be given benefit of seniority as he was working in the Consolidation Department before having been absorbed in the Revenue Department. Petitioner joined the Revenue Department on 1.1.2003 and he is entitled for the benefit of service rendered in the Consolidation Department towards fixation of seniority. He has referred to Annexure P-3 instructions dated 21.7.1978 and as per condition No.3(i), which is reproduced below :- “3(i) The official who originally belonged to the Revenue Department were taken by the Consolidation Department, on their reversion/re-absorption in the Revenue Department, should be placed at their original seniority, as if the service rendered by them in the Consolidation Department, was their service in the Revenue Department.” the ministerial staff on absorption in the Revenue Department may be assigned seniority on the basis of length of service. Mr. Arora has referred to the Full Bench judgment in Kartar Singh versus State of Punjab 1989(4) SLR 430 where the circular dated 21.7.1978 has been interpreted and held that the circular did not suffer from any legal or constitutional infirmity. This judgment has been followed in State of Punjab versus Shiv Karan 1995(3) S.C.T. 690 and Gurnam Singh versus Financial Commissioner, Revenue, Punjab 1996(2) S.C.T. 763. In State of Punjab versus Shiv Karan (supra) benefit of service rendered in Consolidation Department was extended after observation in the Department of Printing and Stationery. The benefits of continuing length of service on absorption as per instructions dated 21.7.2008 were extended beyond the Revenue Department by this Court. Mr. Praveen Chander Goyal, Addl.A.G. Punjab on the other hand has argued that once the petitioner has declared surplus on 31.12.2002 they were adjusted in pursuance to the Government order dated 26.12.2002 Civil Writ Petition No.2986 of 2010 -6- (Annexure R-1). In this order there was a specific condition that after the adjustment of the surplus employee they will be placed junior to all other employees. In other words, their seniority was not protected and this was a condition for absorption in the Revenue Department. Once the petitioners have accepted the conditions vide order dated 26.12.2002 and joined on 1.1.2003 in the Revenue Department, they are estopped to seek the benefit which they have given up while accepting this offer. These instructions have not been challenged by the petitioner till date taking a plea that they are not aware of the instructions and joined the Department on 1.3.2003. The petitioner after accepting the condition of service of adjustment is estopped from challenging the same after a gap of eight years. Once the petitioners have accepted these conditions they cannot derive any benefit from Rule 8 of the Civil Services (General & Common Conditions of Service) Rules, 1994 as he is being treated as fresh entrant and has agreed to junior to be all the employees already working in the same cadre. Mr. M.K. Garg, counsel for respondent No.4 has argued that the petitioner was absorbed/adjusted in the Revenue Department as per the conditions laid down in Annexure R-1 dated 26.2.2002 and for all intents and purposes treated as re-employed and they cannot claim the benefit of service rendered in Consolidation Department, where he has served as Senior Assistant w.e.f. 1.5.1999. He has referred to the judgment of the Supreme Court in Avas Vikas Sansthan and another versus Avas Vikas Sansthan Engineers Assn. & others 2006(2) S.C.T. 595 to contend that even the benefit of pay protection is not available to an employee once he is declared surplus and is adjusted in the Government service. I have heard learned counsel for the parties and have gone through the case file. Civil Writ Petition No.2986 of 2010 -7- A short point for consideration in this case is whether the instructions dated 27.7.1978 will govern the rule of seniority or the decision of the State Government dated 26.2.2002 by which the petitioners have been absorbed in the Revenue Department. It is not out of place to mention that the instructions of 1978 were issued when initially Consolidation Department was wound up in the year 1969. The employees had raised the issue of benefit of seniority and were granted after interpreting these instructions by the Full Bench in Kartar Singh versus State of Punjab (supra). Subsequently also these instructions were followed in a number of cases decided by this Court. However, in the present case when the Consolidation Department was wound up in the year 2002, the Government of Punjab vide order dated 26.12.2002 (Annexure R-1) after abolishing the Consolidation Department has decided to declare its staff as surplus. It was decided to adjust the surplus staff on the basis of seniority, significance and necessity of work and record on vacant post in the Revenue Department as per their option in addition to the abovesaid qualifications. After taking the options the petitioners have been adjusted. The argument of the petitioner is that he was not aware of the conditions of absorption or that any option was taken from him before observing him in the Revenue Department. Once he has joined the Revenue Department on 1.1.2003 he must have exercise the option and without that the order dated 26.2.2002 could not have been passed. Since the adjustment of the surplus employees was on vacant posts in the Revenue Department, seniority had been followed. If the petitioner had not given his option a person junior to him could have been adjusted. The argument of the petitioner that conditions of absorption was not in his knowledge, is rejected. The petitioner is not entitled to the benefit of instructions dated 21.7.1978 (Annexure P-3) o the ground that these instructions were applicable to the instructions issued by the State of Punjab dated 3.4.1961. Civil Writ Petition No.2986 of 2010 -8- These instructions fixing the seniority of the staff of the Consolidation Department on absorption in the Revenue Department and other Departments of the State were issued vide order dated 3.4.1961. The benefit has been extended by this Court in various judgments where the employees had been rendered surplus after wounding up of the Consolidation Department in the year 1969 and thereafter their seniority had to be fixed. The benefit of these instructions cannot be extended to the employees who have been rendered surplus and subsequently absorbed vide resolution of the Government dated 26.2.2002 (Annexure R-1). The State Government has laid down the following conditions/instructions and the guidelines for absorption which are as under :- “1) After their adjustment these employees posted in the offices or districts, shall be junior to all those employees already working in the same cadre who have joined till date or in whose names appointment letters have been issued. 2) If more than one employee of the same cadre are adjusted in the same office or the same district in the same cadre, then their inter se seniority shall be determined in accordance with their seniority in the consolidation wing. 3) Those employees who were employed at a higher post in the Directorate of Consolidation, but due to non- availability of an equal post, have been adjusted against vacancy on a lower post as per their option, their pay shall be protected, if need be, up to the highest scale of pay of the present post on which they have been adjusted. 4) They will be 'competent authority' as per their cadre service rules of all those employees, who have been allocated to their offices/districts. 5) The salary of these employees be drawn in their offices against the relevant budget head of the post on which these employees have been adjusted w.e.f. Civil Writ Petition No.2986 of 2010 -9- 1.1.2003. 6) Those vacant posts, which have been filled up by adjustment of the surplus staff in the Revenue Department, have been taken out of the purview of instructions regarding abolition of posts in letters issued by the Chief Secretary to the Government of Punjab.” As per instructions the petitioner was placed junior most to the employees working in the same cadre. In case of one or more employees of the same cadre to be adjusted in the same office, seniority will be determined in accordance with their seniority in the Consolidation Wing. The judgments referred by Mr. K.L. Arora, Advocate are therefore no help to the petitioner as per the conditions (Annexure R-1). The adjustment/re-employment is to be governed by the conditions laid down in Annexure R-1. The Supreme Court in Avas Vikas Sansthan & another versus Avas Vikas Sansthan Engineers Assn. & others (supra) has observed as under :- “It is settled law that the power to abolish any civil post is inherent in every sovereign government and such abolition will not entail any right on the person holding the abolished post the right to re-employment or to hold same post. In the present case, the State Government was benevolent enough to float a scheme to absorb such employees whose posts were abolished. Therefore, in our opinion, the arguments advanced by counsel for the respondents with regard to unfairness meted out to the employees of Avas Vikas Sansthan hold no water.” The State Government has no constitutional and legal obligation to offer alternate employment to the employees who have been declared surplus by abolition of the post. The Government has framed a scheme in other Government Departments by relaxing the rules, terms and conditions without financial compulsion of the State. The natural consequence of abolition of posts Civil Writ Petition No.2986 of 2010 -10- in any organization is the termination of services of the employees engaged in such organization. It was further urged that the employees whose services have been terminated as a consequence of abolition of posts have no right to seek re- employment or absorption in other departments. In M. Ramanathan Pillai versus State of Kerala (1973) 2 SCC 650 view has been taken that the discharge of the civil servant on account of abolition of post held by him is not an action which is proposed to be taken as a personal penalty but it is an action concerning the policy of the State whether a permanent post should continue or not. The power to abolish any civil post is inherent in every sovereign government. Similar view has been taken in K. Rajendran versus State of Tamil Nadu (1982) 2 SCC 273 where the Supreme Court has held that a Government servant according to law should be rehabilitated by giving an alternative employment, is a matter of policy of the Government in which the Court has no voice. The petitioner after wounding up the Consolidation Department has joined the Revenue Department on 1.1.2003 and has availed the benefit extended by the State Government. At that time, he did not claim that terms of the settlement were not fair. The Supreme Court in State of Uttaranchal versus Jagpal Singh Tyagi (2005) 8 SCC 49 observed as under :- “the employees did not, at any point of time, claim that the terms of settlement were not fair, therefore after obtaining some benefit, it was not open to the employees to later turn away without justifiable cause and contend that the settlement was not fair.” No other point has been argued. The writ petition is dismissed. 30.8.2011 ( RITU BAHRI ) Vijay Asija JUDGE