IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.663 of 2009 (O&M) Date of decision: 27.7.2009 Food Corporation of India. -----Appellant Vs. Krishan Lal and others. -----Respondents AND L.P.A. No.664 of 2009 (O&M) Surinder Kumar & others. -----Appellants Vs. Krishan Lal and others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Hari Pal Verma, Advocate in LPA No.663/09 Mr. R.K. Chopra, Sr. Advocate with Mr. Amit Chopra, Advocate in LPA No.664/09. for the appellants. Mr. R.S. Ahluwalia, Advocate for caveator/private respondents ----- ADARSH KUMAR GOEL, J. 1. This order will dispose of LPA No.663 of 2009 and LPA No.664 of 2009, which arise from common judgment of the learned Single Judge. LPA No.663 & 664 of 2009 2. At the admission stage itself, on suggestion of learned counsel for the parties, we proceed to finally dispose of the appeals. 3. The writ petitioners were directly appointed as Assistant Grade-III (Accounts) in January, 1984 and they joined their respective posts in February/March, 1984. The original private respondents who are appellants in LPA No.664 of 2009 were already working as Assistant Grade-III (Accounts) in the Accounts Section prior to joining of the writ petitioners. On 17.1.1984, formation of a separate Accounts Cadre was circulated vide Circular Annexure P-3, asking the employees who were already working there, to give their options to join the Accounts Cadre. The private respondents gave their respective options and joined the said cadre. It is undisputed that in the seniority list circulated on 30.11.1986, the writ petitioners were placed below the appellants/private respondents. The writ petitioners represented on the ground that they having joined prior to the private respondents, seniority of the private respondents should commence from the date of their joining in the new cadre and not by counting their earlier service on the same posts in the Accounts Section. They relied upon letter dated 20.2.1985, Annexure P-4, whereby options were accepted with a condition that the appellants will be treated junior to the persons ‘already working’ in the Accounts Cadre and their inter se seniority will be fixed accordingly. They also filed CWP No.816 2 LPA No.663 & 664 of 2009 of 1987, as their representation was not decided. By an interim order dated 25.2.2004, this Court directed that their representation be decided in the first instance. Accordingly, vide order dated 3.6.2004, the representation of the writ petitioners was decided against them. The operative part of the said order is as under:- “ The contention No.2 of the petitioners are not correct; the Respondent No.4 to 316 were transferred to the Accounts Cadre in the year 1984 after inviting options on 17.1.1984 and extended upto March, 1984. The officials who were asked to give their options were already working for number of years with the respondent Corporation and since these officials had exercised their options upto March, 1984, they should be ranked senior to the writ petitioners as their date of selections was 24.1.1984 and the acceptance of the offer was delayed because of the delay on the part of Respondent Corporation in finalization of the options. Hqrs. vide d.o. letter No.EP/1-15/75-EP. Vol.VII dt.18.12.86 thus considered equitable to give such officials seniority over the persons who had been directly recruited after 17.1.1984. It is on this count Respondent No.4 to 316 have been shown seniors to the Petitioners. The contention No.3 of the petitioners is not correct. Before formation of the Accounts Cadre, officials appointed in different cadres were working in the Accounts Section and discharging their duties in that section. Therefore, these officials were entitled to be considered and retained in the Accounts Section after formation of the Accounts Cadre and given benefit of their past services. The first circular 3 LPA No.663 & 664 of 2009 regarding formation of Accounts Cadre from the level of AG.III onwards in the Food Corporation of India inviting options was issued on 2.2.1977, para-4 which clearly stipulates that the employees on their transfer to the Accounts Cadre on the post of their option would be allowed to count their past service in the grades concerned for seniority in terms of Regulation 16(7) of the FCI (Staff) Regulations, 1971. In other words, as their transfer from the General Admn. Cadre to the Accounts Cadre would be treated in the interest of the Corporation, seniority of the transferee will be fixed in the Accounts Cadre after giving them full weightage to their past service for counting seniority in the particular category in the General/Admn. Cadre, Sub-Regulation 17(7) also clarifies that if such transfer is in the interest of the Corporation, seniority of the transferee will be fixed in the new unit after giving full weightage to the service counting for seniority in the particular category in the old unit.” 4. Learned Single Judge allowed the writ petition by relying on Regulation 16.7 of the FCI (Staff) Regulations, 1971, which is as under:- “(7) Relative seniority of any employee transferred from one unit to another: An employee transferred from one unit of seniority to another will be ranked as the junior-most in the particular category on the date he joins the new unit. If, however, such transfer is in the opinion of the competent authority in the interest of the Corporation, seniority of the transferee will be fixed in the new unit after giving full weightage to the 4 LPA No.663 & 664 of 2009 service counting for seniority in the particular category in the old unit.” Reference was also made to judgment of the Hon’ble Supreme Court in K.P. Sudhakaran and another v. State of Kerala and others (2006) 5 SCC 386, to the following effect:- “11. In service jurisprudence, the general rule is that if a Government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a Government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the junior-most employee in the category in the new cadre or department. This is because a Government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account. This is also because a person appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects. The matter is, however, governed by the relevant Service Rules.” 5 LPA No.663 & 664 of 2009 5. We have heard learned counsel for the parties and perused the record. 6. It remains undisputed that on the date of joining of the writ petitioners as Assistant Grade-III, the private respondents/appellants were already working as Assistant Grade-III in the Accounts Section. It is also not disputed that they never sought transfer on their personal considerations. It is also not disputed that on the date the options were sought or given, the writ petitioners had not joined the service. It is also not disputed that private respondents/appellants were always treated as senior to the writ petitioners in the last 25 years. 7. In view of above, the question is whether Regulation 16.7 could be applied to deprive the private respondents of their seniority on the posts on which they had been working much prior to the joining of the writ petitioners. Further question is whether letter dated 20.2.1985 could be read as allowing seniority to the writ petitioners over and above the appellants or depriving appellants of their past service when the said letter was never interpreted by the employer in that manner. 8. The order rejecting the representation of the respondents, clearly mentions that in the circumstances, Regulation 16.7 could not apply. It applies when transfer is sought by an employee on the grounds personal to him and not when option is sought. Moreover, the fact that the private respondents were already working on the same posts prior to the 6 LPA No.663 & 664 of 2009 joining of the writ petitioners, shows that only technically a separate cadre was formed. If they were to be deprived of their seniority for the service they have already rendered, it would be unjust and arbitrary. Thus, letter dated 20.2.1985 could not be read as meaning that the private respondents will be placed lower to the writ petitioners who were not already working when options were sought. Even the employer never read the said letter in that manner and treated them senior to the writ petitioners. 9. We are of the view that the learned Single Judge erred in holding that the writ petitioners were entitled seniority over the private respondents and thereby unsettling the seniority after 25 years. The judgment relied upon in K.P. Sudhakaran (supra), instead of helping the writ petitioners, helps the appellants. It has been clearly mentioned therein that transfer will not wipe out the length of service unless a person is transferred for personal considerations. Regulation 16.7 could not apply to such a situation. 10. For the above reasons, we allow this appeal, set aside the order of the learned Single Judge and dismiss the writ petition. (ADARSH KUMAR GOEL) JUDGE July 27, 2009 ( DAYA CHAUDHARY ) ashwani JUDGE 7