Civil Writ Petition No. 8869 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 8869 of 1989 Date of decision: 4.11.2009 Baljit and others ...petitioners Versus The State of Haryana and others ...respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Sumeet Sheokand, Advocate for Mr. R.S. Tacoria, Advocate for the petitioners. Mr. Harish Rathee, Sr.DAG, Haryana for the State. Mr. Babbar Bhan, Advocate for respondent No.3. RANJIT SINGH J. 8 petitioners were appointed as Clerks on adhoc basis in the office of Director Panchayats Haryana, Chandigarh on different dates between June, 1979 to April, 1980. Their services were subsequently regularised as Clerks w.e.f. 15.9.1982. There were two separate cadres of Group-C employees of the Panchayat Department. One cadre was known as Head Office and the second one was a Field Office Cadre. Both the cadres were under Director Panchayats. Karnail Singh (petitioner No. 9) was transferred from the Field cadre to Head Office cadre as Clerk on 1.6.1984 and he was accordingly entitled to his seniority as Clerk in the Head Office from 1.6.1984. Jagbir Singh (petitioner No. 10) was initially Civil Writ Petition No. 8869 of 1989 2 appointed as Peon and was subsequently promoted as Clerk on 2.2.1985. Petitioners No. 1 to 6 were also promoted as Assistant in the grade of Rs. 1400-2600 on 15.7.1988. Petitioners No. 7 to 10, however, were subsequently promoted as Assistant on 3.10.1988. Subsequently, the posts of Assistants in the Head Office were abolished. Petitioners No. 3 to 10, therefore, were reverted as Clerks w.e.f. 1.3.1989. Rule governing the promotion in the Panchayat as well as Development Department, which are distinct and separate departments are almost same. The service in the Panchayat Department is governed by Haryana Panchayats Department State Service (Group C) Rules, 1979 (hereinafter referred to as 'Rules'). As per these rules, Clerks and Stenotypists are eligible for promotion as Assistant after 3 years of service. There are separate rules governing the service of Group-C employees in the Development Department. In this department also Clerks and Stenotypists are eligible for promotion as Assistants on completion of 3 years of service. It is stated in the petition that there was stagnation in the Development Department and the Clerks/Stenotypists could earn promotion on the basis of seniority-cum-fitness, only after completing 25 years of service. On the other hand, the promotion in the Panchayat Department as Assistant was much quicker. It is urged that because of this reason respondent No.3 was interested in seeking transfer from Development Department to the Panchayat Department, in which she ultimately succeeded. This is termed as being done in illegal and arbitrary manner. Respondent No. 3 was initially transferred to and was Civil Writ Petition No. 8869 of 1989 3 given seniority in the Department as Stenotypist from 26.6.1980. She was placed senior to all the petitioners. On that basis, she was further promoted to the post of Assistant on 3.10.1988. Feeling aggrieved against this absorption, the petitioners challenged the same by filing this writ petition. Perusal of the writ petition would show that respondent No. 3 was appointed as Stenotypist in the Development Department. She assumed her duties initially in the office of Block Development and Panchayat Officer, Jagadhri on 16.4.1980. 4 posts of Enquiry Officers (Vigilance) alongwith one post of Stenotypist and one post of a peon attached to each one of them were created in the Development Department. Four Block Development and Panchayat officers belonging to Development Department were appointed as Enquiry Officers (Vigilance). 3 of them were posted in Districts whereas one was posted at the Head Office, Chandigarh. Respondent No.3 being from Development Department was posted as Stenotypist with Enquiry Officer (Vigilance), Head Office, Chandigarh. She joined duties on 26.6.1980. It is accordingly stated that she had wrongly assumed to be working in the Panchayats Department and had claimed seniority as Stenotypist in the Panchayat Department. Her prayer in this regard was rejected on 8.9.1983 on the ground that the post of Enquiry Officer (Vigilance) Head Office with which she was attached was from Development Department and thus she could not claim herself to be an employee of Panchayat Department. Respondent No. 3 did not file any appeal or representation against this order. Subsequently, the posts of Enquiry Officer (Vigilance) Civil Writ Petition No. 8869 of 1989 4 were abolished by the Development Department. Directions were further issued for absorbing/adjusting the staff appointed on these posts. 4 stenotypists and all 4 peons attached with the Enquiry Officers were posted back to their respective posts in the Development Department. Respondent No.3 was posted as Stenotypist in the office of Block Development and Panchayat Officer, Barala. Later she made a request and thereafter she was wrongly posted in the Panchayat Development as Stenotypist on 30.6.1984 on one of the new post sanctioned w.e.f. 1.5.1984. Even this is termed as illegal. This was in connection with the general election of the Gram Panchayat. It is averred that her lien was to remain with the Development department and she was not to claim any seniority in the Panchayat Department. Respondent No. 3 did not contest this at all by filing any appeal or representation. She joined the duties w.e.f. 1.5.1984. The grievance of the petitioner is that her very appointment in the Panchayat Department was wrong when the vacancies were available in the Development Department. It is then stated that she had come to the Department by transfer on deputation and ought to have been sent back to the parent Department, which is the Development Department. She, however, managed to illegally continue statedly on extraneous consideration. Though her claim for adjusting her seniority had become final, she filed a fresh application on 9.8.1985, followed by another application dated 25.9.1985, praying for her absorption in the Panchayat Department. Despite the petitioner having raised written objections, the Financial Commissioner wrongly held respondent No.3 to be Civil Writ Petition No. 8869 of 1989 5 continuously working with the Panchayat Department since 26.6.1980 though she was never absorbed. She was thus given benefit of seniority as Stenotypist in the Panchayat Department from 26.6.1980. This order is passed on 6.9.1988 (Annexure P-6). The petitioners then may elaborate representation against this order but the same was rejected by passing one line non-speaking order. It is in this background that the present writ petition was filed for quashing order absorbing respondent No.3 (Annexure P-6) and order whereby representation of the petitioners was rejected (Annexure P-8). Written statement has been filed by respondent No.3 as well as by the State. Respondent No. 3 would plead that she was appointed as Stenotypist in the office of Block Development and Panchayat Officer, Jagadhri by the Deputy Commissioner on 8.4.1980 and she had accordingly assumed duty on 16.4.1980. She was attached in the Panchayat Directorate with Enquiry Officer (Vigilance), where she had joined duty on 26.6.1980. Respondent No.3 then would claim that she had been absorbed in the Panchayat Department on transfer, for which there was a provision and the same was within the competence of respondents No. 1 and 2. Even after abolition of post of Enquiry Officer, she was not given a benefit of service rendered in the Development Department but her seniority has been counted from the date she started working with the Panchayat Department. This is stated to be in terms of Rule 17 of the Rules. It is further claimed that the seniority of the answering respondent was wrongly shown by the Development Department though she was working in the Panchayat Department. She had no lien in the Development Department and accordingly would justify the Civil Writ Petition No. 8869 of 1989 6 impugned orders whereby she has been absorbed in the Panchayat Department and so also the order whereby the representation/appeal of the petitioners was rejected. In the background with the rival claim as made above, it is to be seen as to how the seniority of an employee is to be determined once he is transferred from different cadre to the Department of Panchayat. Rule 17 of the rules has no applicability and Rule 11 of the Rules would provide a clear answer in this regard. For determining seniority of members in service, the provision is made in this Rule, which is as under:- 11. Seniority of members of the Service.-- Seniority, inter-se of members of the Service shall be determined by the length of the continuous service on any post in the Service : Provided that where there are different cadres in the Service, the seniority shall be determined separately for each cadre : Provided further that in the case of members appointed by direct recruitment, the order of merit determined by the Board shall not be disturbed in fixing the seniority : 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 recruitment shall be senior to a member appointed by promotion or by transfer ; or Civil Writ Petition No. 8869 of 1989 7 (b) a member appointed by promotion shall be senior to a member appointed by transfer ; (c ) in the case of members appointed by promotion or by transfer, seniority shall be determined according to the seniority of such members in the appointment from which they were promoted or transferred ; (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 the length of their service in the appointments, and if the length of such service is also the same, the older member shall be senior to the younger member. Rule 11 proviso (d) would cover the situation at hand. It clearly provides that in the case of members transferred from different cadres, their seniority shall be determined according to pay, preference being given to the members who are drawing a higher rate of pay in his previous appointment. It is further stated that if the rates of pay drawn are also the same, then by the length of their service in the appointments where the length of service is also the same then the older member shall be senior to the younger member. There is no averment made in the petition or in the reply if the petitioners or the respondents were drawing any different pay. The Civil Writ Petition No. 8869 of 1989 8 parties are not aware of this rule position. Accordingly, the pleadings are lacking in regard to the appointment of the petitioners and that of the respondents. It would be appropriate to direct the respondent- Department to consider this aspect in the light of the rule position and see how the seniority is to be assigned to respondent No.3. I may also notice that there is no challenge to the order of absorption of respondent No.3 in the Panchayat Department. Even otherwise at this belated stage, such a challenge cannot now be open to be entertained. The writ petition is, accordingly, disposed of with the direction to the respondents to consider the claim of the petitioners and that of respondent No.3 for determining their inter se seniority in terms of Rule 11 of the Rules. Needless to mention that the respondents would afford opportunity of hearing to the petitioners as well as to respondent No.3 and would pass a fresh order in accordance with law. Any party aggrieved, would be at liberty to take appropriate remedy against the same. November 04, 2009 ( RANJIT SINGH ) rts JUDGE