KARAM CHAND

HARYANA STATE ELECTRICITY BOARD & ORS.

OCTOSER 31, 1988

[M.P_. THAKKAR AND B.C. RAY, JJ.]

Punjab P. W.D. (Electricity Branch) Provincial Service Class III (Subordinate Posts) Rules, 1952. Rule 9-Seniority-Fixation of- Normally 'in accordance to the date of appointment' -Exception-Case of temporary promotion.

The appellant, who belongs to the Scheduled Castes community, joined service as a clerk on February 20, 1954 in the Electricity Branch of the Punjab Public Works Department. In February 1959, the Punjab State Electricity Board was constituted and the employees of the Electricity Branch were transferred to the said Board. The conditions of service of the employees were governed by the existing terms and conditions, as well as the existing service rules.

In 1967, the Haryana State Electricity Board was constituted and the appellant was allocated to the said Board. The Electricity Board by its resolution dated March 16, 1976 adopted the circular letter dated December is, 1972 providing for reservation of 22% of Vacancies both for initiai recruitment as well as for promotion to the Scheduled Castes and Scheduled Tribes as well as to members of the backward classes.

The appellant was promoted on September 25, 1973 as Deputy SuperinrenlieiiL The respondent No. 2 was also promoted by the same order as Deputy Supel"inteildeitt. However, In the said order, it was made cleat by :a note appended thereto that the earlier promotion of the offieials wiii no\ confer on theill aity right to claim seniority over others.

On April 27, i'91i, .a circular was issued by the Chief Secretary, Government of Haryana to all the Departments regarding the criteria for reservation for members of Scheduled Castes and Scheduled Tribes G in the service and fixation of their seniority. As the seniority of the

appeilalit was not determined from the date of his appointment to the post of Deputy Superintendent, he made a representation to the Board requesting for its determination. This representation was, however, rejected on the ground that seniority in the promoted rank would be accorded 'only With reference to the inter se seniority in the previous H post; and •on January 20, 1977, the appellant was finally informed that

~· his seniority will not be computed from the date of his promotioll to the A post of Deputy Superintendent, On January 12, 1977 respondents 2 and 3 who were junior to the appellant as Deputy Superintendent were promoted as Superintendent superseding the claim of the appellant.

Aggrieved by the aforesaid action of the first respondent in promoting respondents 2 and 3, the appellant filed a writ petition in the B High Court for a mandamus directing respondent l to consider his case for promotion for the post of Superintendent on the basis of his being the senior-most Deputy Superintendent. The writ petition was contested on behalf of the respondent l who stated in its counter-affidavit that the petitioner could not claim seniority above the respondents 2 and 3 in the rank of Deputy Superintendent on the ground that his seniority had c already been fixed in accordance with the exception below rule 9 of the I( 1952 Service Rules.

A Single Judge of the High Court dismissed the writ petition on the ground that the instructions governing the matter of promotion in favour of Scheduled Castes candidate had nothing to do with the D determination of the seniority of these candidates and that the letter promoting the petitioner had specifically mentioned that the earlier promotion would not confer on him any right of claim to seniority over and a!iove those who are otherwise senior to him in the cadre from which he was promoted and that in the light of the exception to rule 9 of the I 952 Service Rules, the petitioner being promoted temporarily, his E seniority cannot .be counted from the date of his appointment in the higher post and that respondents 2 and 3, who could be treated senior to him in the rank of Deputy Superintendent as they were sellior to the petitioner in the grade of assistants.

The Letters Patent Appeal filed by the appellant having been F dismissed summarily, the appellant appealed to this Court by special leave.

Allowing the Appeal,

HELD. l. On a plaiii reading of Rule 9 it appears that the seniority of the members of the service serving in an officiating capacity ti

shall be determined prior to confirmation 'in the order of the dates of - their appointment' and after confirmation by their respective dates of confirnlation. The exception to this Rule is that if a member \lf the Service is promoted temporarily to a post earlier than his senior for reasons other than inefficiency •of the senior person they will take rank H

A inter se according to their relative seniority In the class from which they

were promoted and the junior person so promoted shall not be confirmed from a date earlier than the dote of confirmation of the senior. [70!1F G J

In the Instant case, the appellant has been promoted to the post of B Deputy Superintendent which was reserved under the block system for members of the Scheduled Castes. The appointment to the snld reserved post on promotion ls a regular one. The appointment letter does not articulate that the promotion of the appellant to the poat of Deputy Superintendent was purely temporary. This being the poeltlon the exception to Rule 11(11) cannot be applied to determine the seniority of the appellant In the post of Deputy Superintendent, and his seniority C cannot be bused In accordance with the Inter se seniority of re1pondent

Nos. l and 3 In the cadre of AHlstants from which the appellant and respondent No8. 2 and 3 were promoted to the po8t of Deputy Superintendent. l710ADl

D 2, The oppellant Is thus senior to re8pondent No1. 2 and 3 In the rnnk of Deputy Superintendent OB he WAI proll\otod to the aald po8t earller than the respondents No8, 2 and 3 and as 8Uch his claim for promotion to the post of Superintendent on the dates when tbe respondent Nos, l end 3 were promoted to such post Is leuol end vulld. [710EI

.I, Reapondenl No. I la directed to trellt the appelh1nt promoted to the post of Superintendent from the dote Respondent Nos. 2 and J were promoted to the sold post ond to pay him the emoluments olloched to the aold post of Superintendent mlnu8 the emoluments pold as Deputy

Superintendent from lhol dole till Moy 29, 1981 dote of uetuol nppolnl• p menl os Superintendent. l7llADJ

CIVIL APP!l:LLAT!l: JURISDICTION: Civil Appeal No. 4454 of 191!5,

From the Judgment and Order dilled 15.2. 1984 of the Punjob o and Hllryona High Court In L.P .A, No, 224 of 1984. ·

V.M. Tarkunde, MIH Meenok8hl Arora, R.N. Karanjawaln nd

Mrs. Manlk Karnnjawala for the Appellant.· ....

K.K Jain, A.O. Sanger, Ajay K. Jain, Pramod Dayal, B.R.

H Agarwal, P.O. Ookhale, Janendra Lal and Miss Yashmin Tarapore for the Respondents.

KARAM CHAND v. H.S.E.B. [RAY/J'l '' 705

The Judgment of the Court was delivered by

RAY, J, The only question that arises for decision in this appeal is whether an employee promoted to a post reserved for Scheduled Castes and Scheduled Tribes is entitled to have his seniority determined from the date of his appointment to the post or his seniority inter se will be reckoned as it was in the class or grade from which B he was promoted to a post in a higher rank.

The appellant, who is a Scheduled Caste joined service as a Clerk in the Electricity Branch of the Punjab Public Works Department on February 20, 1954. The terms and conditions of his service were governed by the Punjab P.W.D. (Electricity Branch) Provincial Service Class-III (Subordinate posts) Rules, 1952. In February, 1959 and Punjab State Electricity Board was constituted under Section 3 of the Electricity (Supply) Act, 1948 and the employees of the Electricity ' Branch were transferred to the Board . .The coR<litions of service of the employees were governed by their existing terms and'conditions as well as existing service Rules. In 1967 the Haryana State Electricity Board was constituted and the appellant was allocated to the Haryana State Electricity Board with existing terms and conditions of service.

The Board being a statutory corporation was requested by letter <:iated December 13, 1972 by the Government to provide for reservation of 22 % of vacancies-initial recruitment and promotion posts for being filled up by members of the Scheduled Castes and Scheduled Tribes as well as by members of backward classes. The Haryana State Electricity Board adopted the above circular by its Resolution dated March 10,

1976 providing for reservation of posts both for initial recruitment as well as for promotion. The appellant was promoted on September 25, 1973 as Deputy Superintendent. The respondent No. 2, Rajinder Singh Marya was also promoted by the same order as Deputy Superintendent. In the said order of appointment the following note was appended:

"The earlier promotion of the above officials as Deputy Superintendent, will not confer upon them any right lo claim seniority over those who may otherwise be senior to ·(J them due to any reason whatsoever."

On April 27, 1972 a circular was issued by the Chief Secretary, Government of Haryana to all its departments regarding reservation for members of Scheduled Castes and Scheduled Tribes in service and fixation of seniority, Paragraphs 2 and 4 of the said circular which are H relevant are quoted hereinbeIOw:

"2. It has to be pointed out that this was irregular and imer se seniority of all the candidates taken together (i.e. whether appointed against reserved vacancies or against open ones) must be fixed according to the combined merit list and not otherwise. Vacancies assigned to Scheduled Castes/Backward Classes under block system are so assigned for the purposes of reservation only and are not intended for fixing inter se seniority of the candidates contrary to their order in the combined merit list prepared by the Public Service Commission/Subordinate Service Selection Board.

4. The above instructions, regarding determination of inter se seniority will however, apply only in those cases where the deparimental service rules do not provide for seniority being determined from the date of joining or from the date of confirmation or by a method otherwise than the merit determined by the Public Service Commission/S.s.s: Board. In other words, in all cases where the service rules have .not yet been framed, or where the service rules pro- . vide for seniority being determined according to the merit laid down by the Commission/S.S.S. Board, the seniority of the officials shall be determined in the manner stated above. In other cases, where the service rules specifically provide for seniority being determined from the date of joining or from the date of confirmation by the recruiting authority the seniority shall be determined by such diffP.- rent methods."

As the seniority -Of the appellant was. not determined from the date of his appointment to the post of Deputy Superintendent he made a representation to the Board requesting for determination of his seniority from the date of his appointment to the promoted post and also for considering his case for promotion to the post of Superinten- 0 deni. This representation of the appellant was rejected on the ground that:

"The officials belonging to the scheduled castes/tribes and backward classes who are promoted against the posts reserved for them under the block system and for reasons other than inefficiency .of their seniors will not be assigned

KARAM CHAND. v. H.S.E.B. IRAY,, J.] 707

seniority from the date of their joining in the promoted A rank. They shall be assigned seniority in the promoted rank with reference to their inter .se seniority of their previous posts.··

Thereafter, on January 20, 1977 the appellant was finally informed that his seniority will not be computed from the date of his promotion to the post of Deputy Superintendent. On January 12, 1977 the respondent Nos. 2 and 3 i.e. Rajinder Singh Marya and Jagdish Lal Lamba who were junior to the appellant as Deputy Superintendents, were promoted as Superintendents superseding the claim of the appellant.

Aggrieved by this, the appellant instituted an application under Article 226 of the Constitution of India in the High Court of Punjab and Haryana praying for a writ of mandamus directing the respondent No. 1 to consider his case for promotion to the oost of Superintendent

011 the basis of his being seniormost Deputy Superintendent according to the continuous length of service on that post and to promote him to the post of Superintendent with effect from the date his juniors have been promoted and for other consequential reliefs.

An affidavit was filed on behalf of Respondent No. 1 verified by Shri R. Prakash, Secretary, Haryana State Electricity Board wherein in para 3 it has been submitted that:

" ..... the seniority of the petitioner has been determined in the post of Deputy Superintendent in accordance with the exception below Rule 9 of the 1952 Rules."

In Para 5 it has been admitted that the appellant was promoted as Depury Superintendent on 25th September, 1973 and since then he is continuing on the said post. It has further been submitted that the . promotion of the appellant was in an officiating capacity and he still continues to officiate as. Deputy Superintendent. The appellant was promoted to the post of Deputy Superintendent against a post which was reserved for the Scheduled Castes, thoueh 11e was far junior in the cadre of Assistants. In para 7 it has been stated that:

" ..... The petitioner cannot claim seniority above those two officials in the rank of Deputy Superintendent. In view of the exception to Rule 9, if a member of service is promoted temporarily to a post earlier than his s_enior, for

reasons other than the inefficiency of the senior person, they will take rank inter se according to their relative seniority in the class from which they were promoted and junior persons'thl!s promoted shall not be Cf>nfirmed from a date earlier than the date of confirmation of his senior except on the score of inefficiency of the latter. In the present case, the petitioner was promoted temporarily. to the post of Deputy Superintendent earlier to the other two officials on the ground that the petitioner belonged to the scheduled castes.· The other two officials were not superseded on the ground ofinefficiency ...... "

On February 4, 1984 the learned single Judge of the High Court dismissed the writ petition holding inter alia that the instructions governing th~ matter of promotion in favour of the Scheduled Caste candidates had nothing to do with the determination of the seniority of these candidates. Moreover, in the letter promoting the petitioner it was specifically mentioned that the earlier promotion would not confer D on him any right or claim to seniority over and above those who were otherwise senior to him in the cadre .from which he had been promoted. It was further held that in the light of exception to Rule 9, the petitioner being promoted temporarily, his seniority cannot be counted from the date of his appointment in the higher post and the

respondent Nos. 2 and 3 would be tfeated senior to him in the rank of Deputy Superintendent as they were senior to the petitioner in the grade of Assistants. It was, therefore, found that respondent Nos. 2 and 3 were entitled to be promoted as Superintendents earlier to the petitioner.

Against this judgment and order Letters Patent Appeal being LPA No. 224 of 1984 was filed. The said appeal was however, dismi&- sed summarily as being without any merit.

The appellant, thereafter, filed the instant appeal assailing the said judgment. Before proceeding to consider the question whether the appellant's seniority was properly determined under Rule 9 of the Punjab P.W.D. (Electricity Branch) Provincial Service Class III (Subordinate posts) Rules, 1952 (in short to be referred heein as the said Rules) it is necessary to set out herein the relevant provfaion of Rule 9:

"9. $.eniority of the members of the Service-The seniority of the.members of the Service for the time being serving in each class of appointment shown in Appendix 'A' shall be determined as folfows:

. (i) Prior to confirmation (i.e. in the case of persons serving A on probation or in an officiating capacity) in the order of the dates of th

0eir appointment or if such date be the same in respect of twu or more persons, in the order of their ages, the older being placed above the younger.

(ii) After confirmation by their respective dates of confirmation, provided that where two or more membrs are confirmed w .e.f. the same date they will retain the order to confirmation.

Exception: If a member of the servke is promoted temporarily to a post earlier than his senior, for reasons other than the inefficiency of the senior person they will take rank inter-se according to their relative seniority in the class from which they were promoted and the junior person thus promoted shall not be confirmed from a date earlier than the date ofconfirmation of his senior except on the score of inefficien, cy of the latter.

Provided further that if a member is appointed to a higher class later than a person who was junior to him in the lower class for reasons which the appointing authority may certify in writing to be connected with the Public interesf the person so appointed shall be given the same seniority in the higher class vis-a-vis such junior as he held in the lower class."

Thus, on a plain .reading of the Rule it appears that the seniority of the members of the Service seng in an officiatinj! capacity shall be determined prior to confirmation 'in the order of the dates of their appointment' and after confirmation by their respective dates of confirmation. There is an exception to this Rule to the effect that if a member of the Service is promoted temporarily to a post earlier than his senior for reasons other than ineffiCiency of the senior person they will take rank inter-se according to their relative seniority in the class from which they were promoted and the junior person so promoted . shall not be confirmed from a date earlier than the date of confirmation of the senior. The provision contained in the exception to Rule 9 is applicable only in the case of temporary promotion of a member of . the service to a post earlier than his senior for the purposes other than inefficiency, of the senior persons.

ID the instant case admittedly the appellant has been promoted . . A to the post of Deputy Superintendent which was rese!Ved under the block system for members of the Scheduled Castes. The appointment to the said reserved post on promotion is a regular one and this has been admitted in paragraph 5 of the counter-affidavit referred to hereinbefore. The appointment letter does not articulate that the B promotion of the appellant to the post of Deputy Superintendent was purely temporary. The promotion has been .made on a regular basis to the post of Deputy Superintendent reserved on the basis of quota of vacancies for being filled up 'by promotion of members belonging to the Scheduled Castes. The appointment of the appellant to the saia promotional post of Deputy Superintendent, in our considered_ C opinion cannot be designated to be purely a temporary promotion.

This being the position the excel'tion to Rule 9(ii). of the said rules . .:annot be applied to determine the seniority of the appellant in the post of Deputy Superintendent and his seniority cannot be based in accordance with the inter-se seniority of the respondent Nos. 2 and 3 in the cadre of Assistants from whlch the appellant and respondent Nos . . D 2 and 3 werepromoted to the post of Deputy Superintendent. Rule 9(i) of the said Rules is applicable in this case and the seniority of the appellant JS to be reckoned from the date of his appointnlent m the post of JJepucy Superintendent. The appellant is thus seniono respondent Nos. 2 and 3 in the rank of Deputy Superintendent as he wa~ promoted to the said post earlier than the respondents Nos. 2 and 3 and as such E his claim for promotion to the post of Superintendent on the dates when the respondent Nos. 2 and 3 were promoted to such post is legal and valid. It may be mentioned that during the pendency of the writ. petition, tne appellant had been promoted to the post of Superintendent on 29.5.1981 and as such he pleaded in para 6 of the special leave petition that. hls seniority in the cadre of Deputy Superintendent F should not be affected on the basis of the judgments rendered by the High Court.

On a consideration of the facts and circumstances stated . hereinbefore, the finding of the High Court that __ the appellant was promoted temporarily and so exception to Rule 9(ii) applies for de' G termination of seniority of the appellant as Deputy Superintendent, in our considered opinion, cannot be sustained as we have already held that the promotion of the appellant in a reserved vacancy,.is a regular one and it does not smack of.purely temporary cnaracter. The seniority of the appellant is to be reckoned from the date of his appointment to the said post according to the provisions of Rule 9(i) of the said Rules.

H The judgments of the High Court in Letters l:'atent Appeal No. 224 of

/ •. 1984 as well as in the writ petition No. 773 of 1977 are set aside and the A appeal is allowed. The respondent No. 1 is directed to treat the appel- lant promoted to the post of Superintendent from the date the respondent Nos. 2 and 3 were promoted to the said post and to pay him the emoluments attached to the said post of Superintendent minus. the , emoluments paid as Deputy Superintendent from that date till the date /B of his actual appointment as Superintendent, i.e. May 29, 1981. The / 1

appeal is thus allowed with costs.

N.V.K.

Appeal allowed.