IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1248 of 2001 Reserved on: 16.12.2009 Date of decision: 05.01.2010 Iqbal Singh Verma …. Petitioner Versus Union of India & Ors. ………. Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Jeevesh Sharma and Mr. Inderjit Narwal, Advocates. For the respondents: Mr. M.A. Khan, Central Government Counsel, for respondents No. 1 & 2. Per V.K. Ahuja, J.: This judgment shall dispose of a civil writ petition filed by the petitioner under Articles 226/227 of the Constitution of India, for setting aside the order passed by the learned Central Administrative Tribunal dated 18.5.2001. Briefly stated, the facts of the case as alleged by the petitioner are that he joined his services as a Postal Clerk with the Postal Department in the year 1968. Thereafter, the petitioner appeared and was declared successful in the Postal Services Group ‘B’ Examination held in the year 1991. He was thereafter appointed as Senior Post Master in General Post Office, Shimla. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 The petitioner alleged that thereafter he was assigned the seniority and was placed at Sr. No. 493 of the Group ‘B’ Services. He remained posted at Shimla with effect from 1.6.1992 to 26.5.1998 and thereafter, was posted at Dharamshala. He alleged that in the month of July, 1998, he learnt vide Memorandum dated 23.7.1998 that respondents No. 3 to 19 who were much junior to the petitioner were given promotion in the Indian Postal Services Group ‘A’, whereas the petitioner was denied the promotion. On inquiry, he learnt that the Directorate had changed the seniority list vide letter dated 28.9.1995 and the petitioner had been placed at Sr. No. 561 from Sr. No. 493. It was further alleged that no prior notice was issued to the petitioner by the respondent department before changing the seniority list and he was not granted any opportunity of being heard. He made representation to respondent No.2 which was rejected vide letter dated 21.9.1998. He further alleged that the respondent department unlawfully promoted respondents No. 3 to 19 vide order dated 23.7.1998 and he challenged the seniority list before the Central Administrative Tribunal alleging that there are the post of Group ‘B’ which are required to be filled in by promotion from two categories, that is, 94% of the posts from the category of Inspectors of Post Offices, whereas the remaining 6% posts were to be filled in from the category of General Line Officials. Thereafter, the rules were changed and the promotions were made from three categories - 75% from amongst the Inspector Posts Offices, 19% on the basis of departmental competitive examination and 6% on the basis of departmental examination from amongst the clerical line officials. 3 It was further alleged that suitable provisions in the R & P Rules were required to be made for fixing the seniority and it was no where clarified that the seniority is to be assigned simply in the order of selection of the incumbents and accordingly, the corrections were made in the seniority list dated 28.9.1995, which are arbitrary, unjust and contrary to the rules. The learned Central Administrative Tribunal considered the application filed by the petitioner, but the same was dismissed. Being aggrieved, the petitioner has filed the present writ petition. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioner were that no criteria was fixed for reckoning the seniority from the different category of persons selected for Group ‘A’ posts and it was alleged that when the seniority list was changed, the petitioner was never informed and as such, he has cause of action from the date of knowledge and accordingly, the seniority list issued by the Department is liable to be quashed. To substantiate his submissions, the learned counsel for the petitioner had relied upon the following decisions:- Reliance was placed upon the decision in Mangal Das K. Desai Vs. Shashikant R. Desai & Ors., 2000(4) S.L.R. 368. In that case, the High Court directed re-arrangement of seniority as per date of entry in the cadre of Sub Inspector. It was held that seniority of appellant as per seniority list, therefore, could not be disturbed under the impugned order of the High court which was modified accordingly. 4 The reliance was placed upon the decision in K.C. Sharma Vs. Union of India, 1997(3) SCT 641, in which Apex Court had held that the appellants had claimed the same relief on the basis of Full Bench judgment of the Tribunal. The application was dismissed on the ground of delay and Tribunal refused to condone the delay. It was held that the delay was liable to be condoned and the appellants were held entitled to the benefit of Full Bench judgment and same relief given to the other persons. The reliance was also placed upon the decision in S.K. Ghosh and another Vs. Union of India and others, AIR 1968 Supreme Court 1385, wherein appointments to the grade of Directors of Postal Services were made on selection from amongst the senior time scale officers. It was held that once an officer in the time scale is selected for promotion to the grade of a Director and given seniority over another officer selected later, the seniority so determined by selection cannot be made dependent on the seniority in the time scale. All these decisions are based upon peculiar facts of those cases and do not lay down any law helpful to the petitioner. Reliance was also upon the decision in Prem Kumar Verma and another Vs. Union of India and others, AIR 1998 Supreme Court 2854. The observations made in Paras 4 and 5 are relevant and are being reproduced below:- “Where the posts of Depot Store keeper Grade III in Rail Coach Factory fell vacant prior to July 1989 and the process of selection was completed and the Recruitment Board selected the candidates on 11-7-1989 the amendment that was introduced on 5-5-90 and the further amendment of 1993 will have 5 no application and it is the unamended R. 303(a) as it stood on 11th July 1989 would govern the case of inter se seniority. The analysis of the provisions of Para 303 indicates that where candidates are required to undergo some training after being selected through Railway Service Commission or any other Recruiting Authority, their seniority is determined on the basis of their respective merit at the examination held at the end of the training period and where candidates do not have to undergo any training then the seniority is determined on the basis of the merit assigned by the Railway Service Commission or other Recruiting Authority. Therefore when the candidates had to undergo training and in fact they had undergone training in batches, determination of their seniority by the Railway Authority on the basis of their respective merit obtained at the examination held at the end of the training period is proper. The Tribunal committed error by altering the said seniority on the basis of a Rule which was not in existence on the date the vacancy arose and on the date when the selection was completed.“ Coming to the facts of the case, it is not disputed that for promotion to Group ‘B’ in Postal Services, there were two modes, one through the departmental examination open to clerical line and second departmental competitive examination open to Inspectors line. For the first category, 6% of the posts were reserved, while for the second category 94% were to be filled up by promotion on seniority-cum-fitness basis from amongst Inspectors’ line. The seniority of officials selected through two aforesaid modes was being fixed on the basis of principle of their proportion of their quota, for a particular year. Suitable provision 6 has to be made in the rules for fixing the seniority out of two feeder categories. However, it was pointed out that no amendment has been made in the recruitment rules so far as to how selection is to be made from the different categories. Accordingly, the learned Central Administrative Tribunal considered the question and observed that there were no specific rules. The date of selection to the Group ‘A’ post was considered as the criteria for fixing the seniority and accordingly, the learned Central Administrative Tribunal observed that the seniority fixed by the respondent department on the basis of clarification issued by the department of Personnel & Training is perfectly in accordance with the rules. Our attention has also been drawn to Rule 32-D in regard to the seniority list issued for the postal employees. The relevant rules reads as under: “32-D. Heads of offices will arrange to have all gradation lists received by them circulated among the staff in their offices concerned as soon as received, so as to enable the latter to see at once how they stand in the list. If there be any mistake in a gradation list, the official or officials affected should point them out to the authority concerned for rectification within one year of the date of issue of the gradation list, or else his petition will be treated as time-barred. If after the issue of a gradation list the seniority of an official is altered to his disadvantage, the authority ordering the alteration will communicate the fact to him. No appeal against such alternative will lie to a higher authority unless it is submitted within the usual time-limit of six months from the date of communication of the order appealed against. No such intimation of alteration of seniority will, however, be issued in the cases in which the seniority is altered in pursuance of a general 7 order of the Director-General regulating the fixation ……………….......... .“ It is, therefore, clear that once the seniority list was finalized, it was sent to all the Heads of Department for circulation, to the concerned officials. The seniority list was finalized in the year 1995 i.e. on 31.8.1995 vide letter dated 31.8.1995. Respondents No. 3 to 19 were promoted in the year 1991 and his representation was rejected in the year 1998. The petition was filed before the Central Administrative Tribunal by the petitioner on 9.5.1999. It follows from the above discussion that the cause of action had arisen to the petitioner on 28.9.1995 when the seniority list was circulated. It also arose to the petitioner when the respondents were promoted in the year 1991 and he had not filed the petition earlier but filed the same on 9.5.1999 before the learned Central Administrative Tribunal. This fact was also considered by the learned Central Administrative Tribunal that the cause of action had arisen to the applicant/petitioner in September, 1995, but he chose to remain silent for almost 4 years and accordingly, it was held that there is no merit in the petition. The seniority was fixed on the basis of date of selection to the Group ‘A’ posts, which criteria was not found to be wrong by learned Central Administrative Tribunal. No infirmity has been pointed out in the said order passed by the learned Tribunal and as such, there is no merit in the writ petition filed by the petitioner, which is dismissed accordingly with no order as to costs. ( Deepak Gupta ), Judge ( V.K. Ahuja ), January 05, 2010 Judge (BSS) 8