4 4 r 228 2r 2r INTHE HIGH COURT OF PUNJABAND HARYANA AT CHANDIGARH CVP No 4960CAT of 2003 1 Date of Decisionl February2S 2011 SIC Bhandari and another Petitioners Versus Union of India and others Respondents r CORAM HONBLE MRJSTICE NCUMAR 0 0 HONBLE MSJSTICE RITU BAHRI t5 Present Ms Bindu Goel Advocate for the petitioners I Mr 1CK Gupta Advocate 1 Z for respondentNos 2 and 3 t Mr VipinMahajanAdvocate 1 f for respondentNo 4 I 1 To be referred to the Reportersor not7 1 l Z 2 Whetherthe judgmentshould be reportedin the Digest7 m RITU BAHRI 1 r le2 Z 1 This petitionfiled under Article 226 of the Constitution order dated 2 2002 51 passed by the Central 1 AdministrativeTribunal ChandigarhBench Chandigarh or brevity 1 the Tribunal1dismissingOA No 2341CH196filed by the applicante 1 J petitionerswherein they have challengedthe vires of Rule 90f the PunjabExcise Subordinate Service Rules 1943 brevity the 1 RuleslA21 and also sought a declaration that seniorityin the cadre of Taxation Inspectorin the respondentdepartmenthas to be determined on the basis of date of They 1 el 1 1 JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document J 229 NP No 4960CAT of 2003 2 further sought the relief of seniority over and above Sh Sher No 2 The undisputed facts of the present petitionare that the Sarvshri SK Bhandari and Sukhdev Sharma were workingas Stenotypistand Clerk respectivelyin the office of the Deputy Commissioner Chanidgarh On 931984 they were appointedas Taxation inspectors on purelytemporary basis in the 1 office of the District Excise and Taxation Officer Union Territory r44 0 ChandigarhAe11 Their appointments were subjectto the condition C0 that they would be on probationfor a periodof one year and if I C0 duringthe periodof probationtheir work or conduct in the opinion I of the appointingauthorityis not found satisfactory they would be Z revertedto their former posts They were also requiredto pass the Examination prescribedby the Excise and Taxation Commissioner UT Chandigarhwithin a periodof three years from I the date of their appointmentfailing which they were to face Z reversioll to their former posts The C0 completedthe period of probationsuccessfullyon 8 1985 and W2 Z qualifiedthe departmentalexamination on 1261986 within the stipulatedperiodof three years 3 Shri Sher No 4 who was working as a in the ChandigarhAdministration Secretariat was also appointedas Taxation Inspector by way of transfer vide order dated 251985 subjectto the same stipulationsas were imposed in the case of the He joined as such on 2911985 He passed the departmentalexamination on 71986 earlier to the applicantapetitioners On 461986 the Excise and Taxation CommissionerespondentNo 3 passed an order of JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 230 WP No 4960CAT of 2003 3 confirmation of respondentNo 4 against a permanentpost of r 1 Taxation Inspectorwef 261986 6441 4 On 26111987 the applicantpetitioners made a 1 against the order dated 46986 pointingoutthat theywere appointed as Taxation Inspectorspriorin time and senior to Shri Sher SinglerespondentNol and only because he had passedthe departmentalexamination earlier he could not have been confirmed againsta permanent post and made their senior The thus claimed that the seniority of 0 0 respondentNo 4 be reckoned vf 291985 when he joinedas I C5 Taxation Inspector Therefore they sought their confirmation as I Taxation Inspectorpriorto Shri Sher No 4 451 Z On 581988 the Excise and Taxation Commissionerespondent No 3 after examining the representationof the applicante l petitioners and notici ng the factual positionsent the matter to the I Finance Secretary lf Chandigarhwith the recommendation that Z the case of confirmation of Shri Sher No 4 may Ol be reviewed and rectified by the DepartmentalPromotion 7 Z Committee 6461 The relevant portionof the communication dated 581988 reads thusl Il In the instant case the seniors the representationistlhave not been considered when a junior has been confirmed passing of departmental examination prior to the seniors no where gives a junior a right for confirmation when under the rules of Inspectorsare requiredto pass the Deptt Examination within a period of 3 years In this case senior have not been given any notice nor they were considered while JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document J 231 WP No 4960CAT of 2003 J 1 4 d6 confirmingSh Sher Singh As per case Iaw reportedin AlR Allahabad 276Z01551691Lucknow Bench in the case of KB Sharma slo Ram Sarpur Vs Transport commissioner UP Lucknow it has been held that orders determinationof seniorityand confirmation are notional and are revisable No time Iimit can be fixed for the revlsion of orders each case dependson its own facts Keeping in view the facts of the instant case as r discussed above and decision of the Allahabad High 0 0 Court referred to earlier it is recommended that the I C5 case of confirmation of Sh Sher SinghTl may kindlybe I reviewed and rectified by the DepartmentalPromotion Z Committee Il 5e On 1321989 the applicantoetitionersent a reminder C for taking a decision on their representationand to fix their I seniority 71 Instead of deciding their representation on Z 2671989 Shri Sher No 4 was giventhe power m of AssessingAuthorityby virtue of his confirmation prior to the 3 Z Seekingquashingoforders dated 41986 0m and 261989 and direction to the official respondentsto assign dutiesof AssessingAuthorityin preferenceto respondentNo 4 the filed OA No 7751CH189before the Tribunal The stand taken by the official respondentswas that in the cadre of Taxation Inspector there were only 7 posts against which the incumbentscould be confirmed It was further asserted that since respondentNo had passedthe departmentalexamination prior to the applicantoetitionerstherefore his case for confirmation was considered earlier The respondentsalso raised the objectionthat JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 232 WP No 4960CAT of 2003 p1 5 the original applicationwas barred by the period of Iimitation because the order of confirmation of respondentNo was passed Ill June1986 whereas the OA was filed in July 1989 6e On 10101995 Ae81 the Tribunal dismissed the aforementioned Original Application filed by the applicantv petitioners It was found by the Tribunal that the parties are governedby the PunjabExcise Subordinate Service Rules 1943 m brevity the Rulesl and RuIe 8 concerning confirmation provides that no member of the service could be confirmed in any post until 0 0 he has served on that post on probationfor a specifiedperiod but C9 no member on the completionof his period of probationbe I confirmed otherwise than against a permanentvacancy On Z completionof period of probation the appointingauthoritymay appointsuch members subsequentlyeven with retrospectiveeffect 0 if a vacancy exist Thus as per the said Rule the first condition for I beingsubstantivelyappointedto a substantive post is completion Z of probation The second condition Iaid down under Rule 8 is C0 passingof departmentalexamination The Tribunal further found 7 Z that the seniority of members of the service is governedby Rule 9 of the Rules which stipulatesthat the service shall be determined by the date of their substantive appointment to a post In the opinion of the Tribunal the seniority IS directly related to the substantive appointment i by way of confirmation while determiningthe inter se sen iority Ru Ie 9 fu rther providesthat if two or more members are confirmed on the same date their seniority would be determined by the Excise and Taxation Commissioner The reasoning adopted by the Tribunal in dismissingthe OA No 775CH189is discernible in para 80f the order JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 233 WP No 4960CAT of 2003 6 l1 dated 1101995 081which reads thusl 8 Readingof Rules 869 shows that completion of probationsuccessfullyand passingof departmental examination make a person eligiblefor confirmation to the substantive post as and when such a post became availableinfirst week ofJanuary 1986 Thisfactisalso not disputedthat in January 1986 onlyrespondentno4 1 had passedthat departmentalexamination and none of the applicantscould pass the same exam even though 0 0 they had appearedwith respondentno 4 for the same I C5 ApplicantsNo 162 having been appointedItl March I 1984 had appearedfor similar examination earlier also Z thoughthe dates of the same were not mentioned before US I ll January 1986 Only one personfrom amongst the r parties to this a pplication was eligible As discussed I Co above a person can be considered for confirmation to a Z substantive post fallingvacant if he is eligibleon the said m falling of the vacancy after having successfully 7 Z completedthe probationperioda nd having passed the Qm departmentalexam Since respondentNo 4 was the only eligibleperson on the said date we do not find that the respondentscommitted any illegalityin considering his confirmation and thus confirming against the only available vacancy It may some times happen that many personsmay have both the qualificationsof probation and passing of the exam but a vacancy may not be available and they would not be confirmed Similarly a situ ation m ay anse that 0 ut of persons more than one JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 234 1 WP No 4960CAT of 2003 41 7 1 only person may have become eligibleby fulfillingthe r said 2 conditions and others may not pass the departmentalexamination for quite sometime Inthe Iatter situation it would be inequitable to deny confirmation to the person who is otherwise eligiblefor the same merelyon the ground that some persons whO had joinedthe post earlier to him are Iikelyto pass the m C exam sometime in the future The Rules being silent on this aspect this appears to be the just and equitable 0 0 interpretationin the present ll case I C5 7 On the issue of delay I tl filing the OA the Tribunal I returned the finding that the applicanoetitioners filed a Z in November 1987 and the same was forwarded by the Excrse and Taxation Commissioner on 581988 which shows that the departmentwas consideringtheir plea even in August I L3 1988 Accordinglythe Tribunal condoned the delay if any Z 8 Feelingaggrievedthe assailed the m order dated 10101995 81 before Honble the SupremeCourt by 7 Z filingS1P Civill No 24503195 which was dismissed as withdrawn on 51996 91 However without expressing any opinion regardingVlres of Rule 90f the RuIes that issue was ieft open The order dated 51996 is reproducedas underl Il Heard Iearned counsel for the parties The Special Leave Petition IS dismissed as withdrawn However we make it clear that we are not expressingany opinionso far the vires of Rule 90f the Punjab Excise Subordinate Service Rules 1943 IS concerned That is Ieft open Il JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 235 1WP No 4960CAT of 2003 le 8 e 9 Thereafter the applicanoetitionersagainstapproached the Tribunal by filing OA No 2341CH11996challengingRule 90f the Rules ultra vires of Articles 14 and 16 of the Constitution Theyalso sought a declaratio n that sen iority in the cadre of Taxation Inspectorhas to be determined on the basis of date of The applicantoetitionersalso soughtthe relief that they are to be placedsenior over and above respondent 1 No 4 by takinginto account their date of appointmentas Taxation Inspectorirrespectiveof the date of confirmation 0 0 10 In the written statement filed before the Tribunal on I C5 behalf of the respondentsthe stand taken was that the OA was I barred by the principleof resjudicataand the applicanoetitioners Z are estoppedby their OW ll act and conduct to reagitate the matter time and again Earlier OA No 775Ch11989 was dismissed on r 10101995 and no fresh cause of action had occurred to them I They have already taken all the pleas in OA No 775ch11989 Z which have been taken in the second originalapplication The Ql benefit already approvedand conferred by the statutory ruies in e7 Z the past cannot be taken away by challengingvires of RuIe 9 ofthe Rules Rule 8 envisagespreerequisite of qualifyingthe departmental examination for an official to be a member of the service of the Excise Department Recruitment to the post of Inspectoris made by direct appointment or by promotion As per Rule 8 there is a condition for passingof departmentalexamination within a period of three years before becominga member of the service and also for his substantive appointment These Rules are applicablein this manner for all the members of the service for the Iast so many years The applicantoetitionershaving failed to qualify the JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 236 WP No 4960CAT of 2003 9 4e depattmentalexamination priorto respondentNo 4 could not havc assailed Rule 90f the Rules Seniorityas per Rule 8 is subjectto passingof departmentalexamination it was further pleaded that after qualifying the departmental examination an Inspector becomes member of the service of the Excise Department For substantive appointment In the department qualifying departmentalexamination is mandatoryas per Rules 8 and 90f the 1 Rules Pe2 6 Pe31 r 11 The Tribunal first of all considered the issue whether the 0 0 principleof res judicata would apply in the present case and find I C5 that the questionof Vires of the seniority rule was not decided in I the earlier OA and Honble the SupremeCourt Ieft the question Z openwithout expressingany opinionabout the validityor otherwise of the said rule therefore the OA could not be dismissed on the tr groundthat it is barred by the principleof res judicata The other I t questionwhich was formulated by the Tribunai was whether the Z rule which reckons the seniority from the date of the substantive m appointmentis to be held as bad in Iaw After referring vanous J Z judgments of Honble the SupremeCourt the Tribunal upheldVires r1 of Rule 90f the Rules and dismissed the OA by holdingthat the interese seniorityhas to be determined with reference to the date of 11 substantive appointmenton the fulfillment of two conditions ie the successful completionof probationand passing of departmental examination The observations of the Tribunal made in para 14 of the judgmentreads thusl 14 In the conspectus of the above decisions we do not find any force in the contention of the Iearned counsel for the applicants that the seniority rule IS JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 237 WP No 4960CAT of 2003 10 V vitiated on account of the introduction of the date of 1 W confirmation for determination of seniority Rule 90f the Rules of 1943 as it stands cannot be said to be ultra Vires of the Constitution Passing of the testldepartmental examination is one of the essential ingred ients for a person to be the member of the services and to secure substantive appointmentagainst m an available permanent post He who passes the test first will pushdown the one who has failed to do so The 0 0 interse seniority of the applicantsand the respondent I C5 No 4 has to be determined with reference to the date of substantive appointment on the fulfillment of the twin Z conditionsmentioned above In view of the posltiverule 2 the seniorityhas to be regulatedwith reference to the tZ substantive appointmentwhich comes into being on the I successful completionof the probationand passingof Z the departmentalexamination The rule has been in r existence for the Iast most than five decades and has w Z been workingwell We do not therefore propose to 0m meddle with the service and to disturb the settled roosition In our opinion the existing seniority rule 9 is not hit by any constitutional mandate Il 12 Ms Bindu Goel has vehemently argued that the Ianguageof Rules 8 and 9 of the Rules do not prescribethat passingof the departmentalexamination is mandatory for the purposesof inter se seniorityamongst the Taxation Inspectors Referringto the explanationunder sublle 11 of RuIe 8 Iearned counsel states that confirmation of a member of the service would JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 238 1WP No 4960eCAT of 2003 6 11 G be against a permanent vacancy Learned counsel further emphasisedthat RuIe 831 Iays down that after successful completionof period of probationthe appointingauthoritymay appointsuch employeesubstantivelywith retrospectiveeHect if the vacancyexists and if he has passedthe departmentalexamination prescribedfrom time to time by the Excise 6 Taxation Commissioner Rule 8iiil Iays down a cond ition that without 1 passingdepartmentalexamination within a periodof three years a direct appointee IS not Iiable to be retained If appointmentis by 0 0 transfer he IS Iiable to be reverted Confirmation of Taxation I C5 Inspector IS directlyIinked with the availabilityof a permanent I vacancyRetention in service whether by direct or by transfer is Z based on successful completionof probation and passing of examination If both these conditions have been r fuIfiIled th en the Taxati on 1nspector is Iiable to be confirmed on I availabilityof a permanentvacancy Z 13 Learned counsel then drawn our attention to RuIe 90f S QO the Rules which deals with seniorityof members of service and W2 Z stipulatesthat seniority of members of the service shall be determinedby the date of their substantive appointmentto a post in that class In other words it has been Iinked to date of J v confirmation on the post Ms GoeI argued that Iinkingthe date of substantive to a post for seniority IS againstthe settled principlesof Iaw In that regard reliance has been placed on the judgmentsof Honble the Supreme Court rendered in the cases of SB Patwardhan v State of Maharashtra 1977 21 SLR 235 Direct Recruit Class41 Enqineerinq Officers Association v State of Maharashtra19901 2 SCC 715 OP Garg v JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 239 WP No 4960CAT of 2003 11 12 ae State of l JT 1991 21 SC 359 Keshav Chandra Ioshi v Union of d AlR 1991 SC 284 Reference has also been made by Ms Goel to another judgmentof Honble the SupremeCourt in the case of MH Patil v State of Maharashtra 19991l SCC 249 In the said case their Lordships of Honble the SupremeCourt examined a disputeconcerningseniorityIist of Sub4nspectorsof Prohibition and Excise framed by the Government of Maharashtra There also the tm r seniorityIinked with date of passinga departmentalexamination Rule 3 governingthat service providedthat seniorityamongst the 0 0 Prohibition and Excise Officers and Clerks for the I C5 purposeof confirmation would be decided accordingto the dates of I their passingthe departmentalexamination held after completion Z of one years continuous service in the Prohibition and Excise DepartmentIn para 30f the judgmentHonble the SupremeCourt has observed as underl 3 The appellantcontended that in view of this Z RuIe the seniorityfor the purpose of promotionshould be Cll determined on the basis of the date of passing the 7 Z examination The High Court has negatived this tl contention relyingupon the wordingof Rule 3 which says that the senioritydetermined on the basis of the date of passingthe departmentalexamination is for the purpose of confirmaon only and not for any other purpose The HighCourt has also pointedout the advantageswhich a candidate will derive by early confirmation if he passes the departmentalexamination earlier than his seniors The HighCourt after consideringthe advantageswhich mayflow from early confirmation under Rule 3 has held JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 240 WP No 4960CAT of 2003 13 that Rule 3 will not affect the seniorityon the basis of continuous officiation for the purposes of promotion provided the persons concerned have passed the departmentalexamination Il 14 Learned counsel further arguedthat a combined reading of Rules 8 and 90f the Rules would Iead to a conclusion that after clearing the period of probationand passing the departmental 1C2 examination a member of service could be appointedsubstantively with retrospectiveeffect if a vacancy exists Once the Rule making 0 0 authoritywas conscious that confirmation of a member of senlice I C5 could be made with retrospectiveeffect if a vacancy exists it was I conscious that confirmation was relatable to existence of a Z permanentvacancyassing of departmentalexamination and probationwere two conditions to be fulfilled before confirmation A plain reading of Rule 90f the seniority was to be determined by t date of substa ntive appointmento a post in that class The Rule Z rnakingauthority has Iinked confirmation as the basis for 01 determiningseniority Once the appointmenthas been made in W2 Z accordance with Rules seniorityhas to be counted from the date of Qm such appointmentand not from the date of confirmatiorNhere the initial appointment is not made by followingthe procedureIaid down by the RuIes the benefit of that service is not to be counted towards seniority eg if appointmentsare made on ad hoc basis Where the initial appointment has been made by followingthe processas per Rules then Iinking the seniority with the date of confirmation is against the settled principleof Iaw Iaid down by Honble the SupremeCourt 15 Learned counselforthe respondentson the oth er hand JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 241 WP No 4960CAT of 2003 1 14 sought to ralse similar arguments which were raised before the Tribunal and alreadynoticed in precedingpara 10 16 We have heard Iearned counsel for the partiesat Iength and gone through the paper book with thei r able assistance It would be profitableto first read Rule 8 and 90f the Rules which are as followsl PARTll CONDITIONS OF SERVICE 1 r PROBATION OF MEMBERS OF THE SERVICE 0 811 No member of the servtce shall be confirmed in any C3 post specified in Appendix A Except in the post of I C5 Excise Sub inspector timescalel until he has served in that post on probationfor a periodof two years in the Z case of members recruited by direct appointmentor of 2 rt one year in the case of members otherwise e Expianationl Continuous of8ciating serviceshall be I t reckoned as period spent on probationbut no member Z be confirmed otherwise than against a permanent m vacancy W2 Z 21 Ifthe work or conduct of any member during his tl period of probationis in the opinion of appointing authority not satisfactorythe appointing authoritymay d ispense with his service if he has been recruited by direct recruitment or may revert him of hisformer post if he has been recruited otherwise than by direct appointment 31 On the completionof the period of probationof any member the appointing authority may appoint such rnember substantively with retrospective effect if a JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 242 WP No 4960eCAT of 2003 15 r vacancy exists or if his work or conduct has in the 1 4 opinion of the appointing authority not been satisfactorythe appointingauthoritymay dispensewith his services if he has been recruited by direct a ppo intment or revert him to his former post if he has been recruited otherwise than by direct appointment or may extend the periodof probationand thereafter pass 1 such order as it could have passedon the expiryof the first period of probation 0 0 il provided that the tota l period of probatio n I includingextensions if any shall not exceed three years I in the case of persons recruited by direct appointment Z and two years in the case of persons recruited otherwise 2 iil providedfurther that without the sanction of the 0 Excise and Taxation Commissioner to be given only for C1 special reasons no person shall be appointed Z substantive Sub Inspector time scale or Ieave reserve 0 unless he has passed the departmentalexamination 7 Z prescribedfrom time to time by the Excise and Taxation Commissioner iiil providedfurther that no person directly appointed to the service shall be retained in the service unless he passesthe departmental examination for Excise Sub Inspectorswithin three years of continuous officiatingor substantive service from the date of his appointment Il SENIORIlY OF MEMBERS OF SERVICE 9 The seniority of members of the service shall in so JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 243