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2009 DIGILAW 1599 (PNJ)

Prithpal Singh v. State Of Punjab

2009-09-09

PERMOD KOHLI

body2009
Judgment Permod Kohli, J. 1. The dispute in the present petition relates to inter se seniority between the members of the service particularly those belonging to the General and reserved category of Scheduled Caste, both at the time of final recruitment and in promotions. 2. The petitioner and private respondent are members of the Gazetted Engineering Service of the State of Punjab. Petitioner was recruited as Sub Divisional Engineer by direct recruitment on 1.6.1976. He was promoted as Executive Engineer on 30.12.1996 and as Superintending Engineer on 29.12.2005. The private respondent No. 2 was appointed as Sub Divisional in the year 1978, respondent Nos. 3, 5 and 6 were appointed in the year 1982 and respondent No. 4 was appointed in the year 1983. The petitioner belongs to General Category, whereas all the private respondents are from reserved category of Scheduled Caste. On the basis of the year of recruitment, petitioner was ranked senior than respondent Nos. 2 to 6 having been recruited in the year 1978 as against the appointment of respondent Nos. 2 to 6. Even though the petitioner ranked senior as Sub Divisional Engineer, respondent Nos. 2 to 6 got accelerated promotions on the basis of roster points meant for the member of the Scheduled Caste. The private respondents were promoted as Executive Engineer in the year 1982 and as Superintending Engineer in the year 2001, whereas the petitioner was promoted as Executive Engineer in the year 1996 and superintending Engineer in the year 2005. In the year 2001 Articles 16(4-A) of the Constitution of India was amended by the 85th Constitution Amendment to enable the State to make provision for consequential seniority to any class or classes of the posts in the services in favour of Schedule Castes and Scheduled Tribes on the basis of the roster promotions. This amendment is under challenge before the Honble Supreme Court in case of M. Nagraj and another v. Union of India and others, During the pendency of the aforesaid writ petition before the Honble Supreme Court an inter-locutory order came ot be passed allowing the States to grant consequential seniority on roster promotion till the matter is finally decided by the Honble Apex Court. Based upon the interim order passed by the Honble Apex Court on 17.11.2005 the State of Punjab issued executive instruction dated 15.12.2005 (Annexure P-3). Based upon the interim order passed by the Honble Apex Court on 17.11.2005 the State of Punjab issued executive instruction dated 15.12.2005 (Annexure P-3). Under these executive instructions the consequential seniority on roster promotion was ordered prospectively w.e.f. 17.11.2005 in the following manner :- "2. After careful consideration of the matter and also keeping in view the interim orders of the Honble Supreme Court and the present status of the case pending in the Apex Court, it has been decided that Scheduled Caste employees promoted to any classes of posts under the reservation policy, will be prospectively entitled to "Consequential Seniority" on the post to which they are promoted. 3. These instruction shall come into force w.e.f. 17th November, 2005 and shall be applicable to the posts falling vacant in future in all cadres. They are also subject to the final decision of the Honble Apex Court in IA No. in writ petition (Civil) No. 61/2002-M. Nagraj & others v. Union of India and others and writ petition (Civil) No. 234/2002 - All India Equality Forum and others v. Union if India and others and other allied cases." 4. Based upon the aforesaid Govt. instructions a tentative seniority list of Superintending Engineers of Irrigation Department was issued as exists on 1.9.2006 vide circular dated 1.3.2007 (Annexure P-4). In this circular petitioner was placed at Sr. No. 27, whereas the private respondent were placed at Sr. No. 19 to 23 respectively. The State- respondent also invited objections to the tentative seniority list to be filed within 21 days. It is specifically stated that petitioner filed objections on 29.3.2007 and 8.5.2007 to the tentative seniority list. A copy of the objections has been placed on record as Annexure P-5. The State- respondent after considering the objections raised by the petitioner passed the order dated 8.1.2008, rejecting raised by the petitioner and finalized the seniority of the Superintending Engineers of Irrigation Department as on 1.9.2006 maintaining the seniority position of respondent Nos 2 to 6 at Sr. Nos. 19 to 23 and that of the petitioner at Sr. No. 27 respectively. 5. The petitioner has accordingly assailed the aforesaid seniority list (Annexure P-6), Govt. Nos. 19 to 23 and that of the petitioner at Sr. No. 27 respectively. 5. The petitioner has accordingly assailed the aforesaid seniority list (Annexure P-6), Govt. instructions dated 15.12.2005 (Annexure P-3) and subsequent order and the circular dated 4.5.1974 (Annexure P-9), whereby the State had earlier notified the reservation for Scheduled Castes and Backward Classes in promotions within Class-III and Class-IV posts at 16% of the post to be filed up by promotion and in respect to Class-I and Class-II Posts at 14% of Scheduled Castes and 2% for Backward Classes. 6. The State-respondent as also the private respondents have filed their separate disclaimers to the writ petition. The stand of respondent is that the tentative seniority list was notified and after considering the objections in respect to the proposed seniority list the tentative seniority list has been finalized. There is no violation of natural justice. It is further stand of the respondents that the seniority has been fixed consequent upon the Govt. instructions dated 15.12.2005. Other technical objections have been raised that the private respondents are promoted as Superintending Engineers; petitioner was not even a member of the service (i.e. Superintending Engineer) and thus he has no right to object seniority. 7. The respondents have also justified the consequential seniority and roster promotion in view of the decision of the Honble Apex Court in M. Nagraj and other v. Union of India and others. 8. The petitioners have also stated in the writ petition that out of the total eight number of Chief Engineers only two posts could be occupied by the member of the Scheduled Caste, whereas at present five posts of Chief Engineers are occupied by the members of the Scheduled Castes. 9. During the pendency of the aforesaid writ petition, petitioner filed C.M. No. 24970 of 2008 seeking stay of the operation of the impugned seniority list pending decision of the writ petition. Along with the aforesaid application, the petitioner placed on record copy of an order dated 4.9.2008, whereby additional charge of the posts of Chief Engineer was given to some of the Superintending Engineers in Water Reservoirs Development and Management Corporation and RSD Mechanical Division, Shahpurkandi as also to respondent No. 4. Similarly current duty charge was also given to respondent No. 2 vide letter dated 4.12.2008. Similarly current duty charge was also given to respondent No. 2 vide letter dated 4.12.2008. During the pendency of the writ petition when the matter was being heard, the State through the Deputy Advocate General requested the Court that the concerned department of the State may also allowed to examine the matter and take a common stand. On this statement being made, the State was given liberty to examine the matter and file an additional affidavit vide order dated 13.1.2009. It was also directed that if the matter is not argued on the next date, the current duty charge/took after charge shall stand terminated. Thereafter, on 29.1.2009 a statement was made on behalf of the State by Ms. Charu Tuli, Sr. D.A.G., Punjab that the petitioner is also being given current duty charge. The current duty charge infact has been given to the petitioner as well but the current seniority dispute remains intact inter se the parties. 10. I have heard learned counsel for the parties at length. The relevant rather the only point that arises for consideration is whether the private respondents who are admittedly the members of the Scheduled Castes are entitled to retain consequential seniority on their accelerated promotions as Executive Engineer, Superintending Engineer or may be as Chief Engineer. 11. It is admitted position amongst the parties that the petitioner was senior to the private respondents as Sub Divisional Engineer having been recruited as such in the year 1976, whereas the private respondents were appointed between the years 1978 to 1983. It is also equally established factual position that the private respondents were promoted as Executive Engineer and later as Superintending Engineers earlier in time on account of roster points meant/reserved for them than the petitioner, who was later promoted as Executive Engineer and Superintending Engineer. Presently, the petitioner and private respondents are holding the posts of Superintending Engineer on substantive basis. Though, some of the private respondents are holding current duty charge as Chief Engineer. 12. Presently, the petitioner and private respondents are holding the posts of Superintending Engineer on substantive basis. Though, some of the private respondents are holding current duty charge as Chief Engineer. 12. The Contention on behalf of the petitioner is that although respondents were entitled to accelerated promotions being members of the Scheduled Castes on the basis of the roster points meant for them, however on later promotion of the petitioner to the higher posts of Executive Engineer and Superintending Engineer respectively, he is entitled to regain his seniority over and above the private respondents being senior to them in the cadre of Sub Divisional Engineer. It is argued on behalf of the petitioner that the private respondents are not entitled to consequential benefit of seniority with effect from the date they were promoted against the reserved vacancies as members of the Scheduled Castes and as and when the petitioner, a member of the General Category is promoted to the higher post, he is entitled to regain his seniority in view of the catch-up rule on the basis of the mandate of judgment of Honble Supreme Court in case of Ajit Singh Janjua II and other v. State of Punjab and other, 1999(4) RSJ 211. To the contrary the stand of the respondents including the State. respondent is that in view of the Govt. instructions dated 15.12.2005 and the 85th Constitutional Amendment, the private respondents are entitled to the consequential seniority on roster promotions. 13. Seniority in the cadre of service is regulated by the statutory rules. The well known principle of length of service on substantive appointment determines the seniority at the time of initial appointment. Undisputedly, petitioner having recruited in the year 1976 had has more service as Sub Divisional Engineer and ranked senior to private respondents in the category of Sub Divisional Engineers. Seniority on the promotional post is to be determined in case of promotion on seniority-cum-merit basis on the basis of their relative seniority in the lower cadre. Thus, in the event of normal promotion on seniority the petitioner would have earned promotion earlier than the private respondents and would have ranked senior as Executive Engineer as also as Superintending Engineer. The private respondents, however, earned accelerate, out of turn promotions as members of the reserved categories (Scheduled Castes) both as Executive Engineer. Thus, in the event of normal promotion on seniority the petitioner would have earned promotion earlier than the private respondents and would have ranked senior as Executive Engineer as also as Superintending Engineer. The private respondents, however, earned accelerate, out of turn promotions as members of the reserved categories (Scheduled Castes) both as Executive Engineer. The private respondents claim the benefit of consequential seniority on such promotion only on the basis of the 85th Constitutional Amendment, whereby Section 16(4-A) was amended. The categorical stand of the respondents is that State Govt. had issued executive instructions dated 15.12.2005 in view of the Constitutional Amendment referred to above and the interim order passed in IA. No. 2 in Writ Petition (Civil) No. 61/2002 -M Nagraj & Other v. Union of India and others. The interim order was passed on 17.11.2005 and thus the Govt. instructions (Annexure P-3). Clearly indicate that the benefit of consequential seniority will be prospective in nature and the instructions will come into force w. e. f. 17.11.2005 and shall be applicable to the posts falling vacant in future in all cadres. Private respondents were promoted as Executive Engineers on all accelerated promotions in year 1992 when these instructions had no application. They earned further promotions to the posts of Superintending Engineers in the year 2001 and those Govt. instructions had not been issued nor are applicable in respect to the promotions made in the years 1992 and 2001 respectively. Thus, the grant of benefit of consequential seniority of the roster promotions on the basis of the aforesaid Govt. instructions is totally unwarranted. Apart from the above, the State of Punjab enacted an enactment known as Punjab Scheduled Castes and Backward Castes (Reservation in Service) Act, 2006. This Act was published in Govt. Gazette on 5.10.2006. In view of the enactment of the aforesaid Act, all Govt. instructions cease to exist. It has been argued on behalf of the respondents that the 85th Constitutional Amendment itself provides for consequential seniority. This Act was published in Govt. Gazette on 5.10.2006. In view of the enactment of the aforesaid Act, all Govt. instructions cease to exist. It has been argued on behalf of the respondents that the 85th Constitutional Amendment itself provides for consequential seniority. By virtue of the Constitutional Amendment Articles 16(4-A) was amended, which reads as under :- "16 (4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the service under the State in favour of the Scheduled Caste and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the Service under the State." 14 This Constitutional Amendment has been upheld by the Honble Supreme Court in case of M. Nagraj and another v. Union of India and others. The Honble Supreme Court delivered the final judgment in the aforesaid case on 19.10.2006. While upholding the Amendment, the Honble Supreme Court held as under :- "CONSLUSION : 120. The impugned constitutional amendment by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Articles 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Articles 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements namely, ceiling limit of 50% (quantitative exclusion), the sub-classification between OBC on one hand and SCs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal. 121. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely backwardness, inadequacy of representation all overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Articles 16 would collapse. 122. However in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. 122. However in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Articles 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely." 15. From the above, it is crystal clear that the 85th Constitutional Amendment and Section 16(4A) per so do not provide the benefit of the consequential seniority unless the concerned State on the basis of the relevant material/data makes a provision for consequential seniority. After the delivery of the aforesaid judgment of even the 85th Constitutional Amendment the State of Punjab has not made any provision for consequential seniority in the State of Punjab. The Reservation Act of 2006 does not contain any such provision. In absence of there being any provision the principle of catch-up rule laid down by the Honble Apex Court in case of Ajit Singh Janjua shall apply. A similar issue came up in consideration before this Court in CWP No. 17880 of 2008, wherein following observations were made:- "From reading of the aforesaid Act, it appears that there is no provision for consequential seniority on roster promotion. No other law or even government instruction has been brought to the notice of this Court that the State Government has made any provision for consequential seniority on the basis of roster promotion after 85th Constitution Amendment. No other law or even government instruction has been brought to the notice of this Court that the State Government has made any provision for consequential seniority on the basis of roster promotion after 85th Constitution Amendment. In the absence of any such provision or till the State Government makes any future provision on the basis of the observations of the Honble Supreme Court in the case of M. Nagraj & Others (supra), the ratio of the judgments of the Honble Supreme Court in case of Ajit Singh Janju-II (supra) as also in the case of R. K. Sabharwal (supra) shall apply and will hold the field. As noticed above, in the Constitution Bench, judgment passed in the case of Ajit Singh-II (supra) it has been held that the Roster appointment/promotion does not determine seniority. Even if a Reserved Category candidate is appointed at Level-I in the initial recruitment and he is placed on Roster Point, it will not determine the seniority in the cadre of service and the seniority will remain on the basis of the inter-se merit of the appointees in the selection. Even on promotion from Level I to Level II, the reserved category candidates may be promoted prior to General Category candidates senior to him, on account of excelerated roster promotion. On promotion of the General Category Candidates at any late date, he will catch up his seniority and will rank senior to the reserved category candidates, notwithstanding, length of service of reserved category promote on the promotional post. 16. In view of the dictum of the aforesaid judgments, the position which prevails in the State of Punjab is that (1) roster point appointment/promotion will not determine the seniority; and that (2) seniority will remain on the basis of merit in the case of direct recruitment and on the basis of length of service on substantive basis in the feeding channel, on the promotional post." 17. In view of the legal position referred to herein above the impugned seniority list (Annexure P-6) is unsustainable in law and is liable to be quashed. The Govt. instructions (Annexure P-3) as also the Govt. instructions (Annexure P-9) also do not survive in view of the observations made herein above. The inter se seniority amongst the general category candidate and the reserved category candidates continue to be determined in view of the Ajit Singh Janjuas judgment. The Govt. instructions (Annexure P-3) as also the Govt. instructions (Annexure P-9) also do not survive in view of the observations made herein above. The inter se seniority amongst the general category candidate and the reserved category candidates continue to be determined in view of the Ajit Singh Janjuas judgment. The petitioner was senior to the private respondents as Sub Divisional Engineer and even on promotional post as Executing and Superintending Engineer, will continue to be senior to them on his promotion to the higher posts on account of the application of the catch-up rule. The same position has to continue for further promotion as Chief Engineer. It was argued during the course of the arguments that as many as 15 posts of Chief Engineers are available comprising of cadre and ex-cadre posts. As against 15 posts 5 posts are occupied by the Scheduled Castes candidates. The roster point under the 1974 instruction with 14% reservation in promotion are 1.7 and 15 that means only 3 scheduled category candidates can be promoted against reserved vacancies. Rest of the vacancies are to occupied by the general category candidates subject to their eligibility and suitability in accordance with law. Presently, most of the promotees are Chief Engineers and are holding the current duty charge. Respondents are directed to make promotions to the posts of Chief Engineer on Substantive basis within a period of two months by according consideration to all the eligible Superintending Engineers in accordance with law and the current duty charge shall stand determined on expiry of two months or when the regular promotees occupy the promotional post, whichever, be earlier. Disposed of as such.