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2016 DIGILAW 3536 (PNJ)

Hari Singh v. State of Punjab

2016-12-17

P.B.BAJANTHRI

body2016
JUDGMENT : P.B. BAJANTHRI, J. 1. In the instant appeal, the appellant has questioned the orders of the trial and appellate court dated 16.05.2009 and 18.12.2013 respectively. 2. The appellant and private respondents were in the cadre of Steno-Typist in the Punjab Civil Secretariat. Before the appellant entering into the cadre of Steno-Typist he was initially appointed as a Clerk on 12.03.1992. Thereafter, he was a candidate for the selection to the post of Steno-Typist and he was appointed to the post of Steno-Typist on 27.07.1992. He had further earned promotion to the cadre of Junior scale and Senior scale in the year 1995 and 1999 respectively. In the meanwhile on 31.12.1993 official respondents published seniority list of Steno-Typist in which the appellant's name appeared at Serial No. 39 whereas the private respondents have been placed below the appellant. The private respondents approached the official respondents to rectify the seniority list and ranking assigned to the appellant and the private respondents in the year 2004. Thus, the official respondents proceeded to alter the ranking assigned to the appellant and the private respondents while placing private respondents over and above the appellant. 3. Feeling aggrieved by such assignment of ranking in the seniority list of Steno-Typist, appellant filed suit before the trial court. The trial Court rejected the suit so also the appellate court. Thus, the present appeal has been presented. 4. Learned counsel for the appellant submitted that he was appointed on 12.03.1992 as a Clerk. Even though he was not eligible for applying to the post of Steno-Typist for the reasons that he did not fulfil the qualification of experience in the cadre of Clerk to the extent of one year. However, the official respondents entertained the appellant's application and others who were similarly situated Clerks. Appellant was permitted to participate in the process of competitive test and thus, he was appointed on 27.07.1992 and further with reference to the date of entry into the cadre of Steno-Typist he was assigned ranking in the seniority list on 31.12.1993. In this background, he was further promoted to the post of Junior scale and Senior scale in the year 1995 and 1999 respectively with reference to the seniority list dated 31.12.1993. In this background, he was further promoted to the post of Junior scale and Senior scale in the year 1995 and 1999 respectively with reference to the seniority list dated 31.12.1993. It was submitted by learned counsel for the appellant that alteration or tinkering of seniority list of Steno-Typist by the official respondents is at the behest of one Sarabjit Kaur 2nd respondent, Personal Assistant to the then Joint Secretary, namely Sh. S.S. Khara who was the competent authority to prepare and publish seniority list. Thus, the 2nd respondent and 19th respondent in collusion, altered the seniority list in the year 2004 issued on 31.12.1993. The said contention was taken before the trial court as well as appellate court. Both the courts have not appreciated and considered. It was further submitted that seniority list cannot be altered after it was given effect for the purpose of promotions like Junior and Senior scale. In the present case, the seniority list is dated 31.12.1993 which has been given effect for the purpose of promotion to the cadre of Junior scale or Senior scale in the year 1995 and 1999. Therefore, alternation of seniority list dated 31.12.1993 by the official respondents is highly arbitrary and illegal. Thus, trial and appellate court have erred in not appreciating the fact of delay as well as with the mala-fide intention of 19th respondent-Joint Secretary in order to help 2nd respondent ranking in the seniority list has been altered. Hence, the orders of trial and appellate court are liable to be set aside. Consequently, alteration of seniority list is to be set aside. 5. On the other hand, learned counsel for the private respondents vehemently submitted that the appellant is not entitled to be appointed as a Steno-Typist on 27.07.1992 for the reasons that he did not fulfil one of the qualification namely one year of service as a regular Clerk in the Punjab Civil Secretariat having regard to the date of entry into service by the appellant viz. he being appointed as Clerk on 12.03.1992. Therefore, official respondents have rectified the error committed by them insofar as assigning rank in the seniority list of Steno-Typist. The trial and appellate court have appreciated the rule position therefore, rightly, they have not interfered with the alteration of ranking done by the official respondents in the year 2004. he being appointed as Clerk on 12.03.1992. Therefore, official respondents have rectified the error committed by them insofar as assigning rank in the seniority list of Steno-Typist. The trial and appellate court have appreciated the rule position therefore, rightly, they have not interfered with the alteration of ranking done by the official respondents in the year 2004. The learned counsel further submitted that in identical matter this court in CWP No. 1633 of 2011 disposed of on 21.09.2015 refused to interfere with modification of rank assigned to the petitioner therein. Hence the present case is also identical, thus appellant has not made out case to interfere with alteration of ranking in the seniority list of Steno-Typist so also to interfere with the orders of the trial court and the appellate court. 6. Learned counsel for the State adopted the arguments advanced by learned counsel for the private respondents to contend that as on the date of appellant's appointment the appellant did not fulfil the qualification prescribed for the post of Steno-Typist. Therefore, no interference is called for. 7. Heard learned counsel for the parties. 8. Question for consideration in the present litigation is whether the official respondents can alter the ranking in the seniority list which was notified on 31.12.1993 in the year 2004 or not. Further without cancelling appointment of the appellant to the post of Steno-Typist dated 27.07.1992 and further promotion to the cadre of Junior and Senior scale in the year 1995 and 1999 seniority can be altered. No doubt the appellant did not have the qualification of one year experience as per the rules to be appointed as a Steno-Typist. The official respondents permitted the appellant amongst others to participate in the process of recruitment to the post of Steno- Typist. Thus the appellant was appointed on 12.07.1992 and his name was reflected in the seniority list dated 31.12.1993. The said seniority list has been given effect by promoting the appellant to the cadre of Junior scale and Senior scale in the year 1995 and 1999. The private respondents did not open their eyes in the year 1993, 1995 and 1999 when the appellant was appointed to the post of Steno-Typist, promoted to the post of Junior scale and so also when he was promoted to the post of Senior scale in the year 1999. The private respondents did not open their eyes in the year 1993, 1995 and 1999 when the appellant was appointed to the post of Steno-Typist, promoted to the post of Junior scale and so also when he was promoted to the post of Senior scale in the year 1999. As long as appointment to the post of Steno-Typist, promotion in the year 1995 and 1999 are not challenged or questioned by the private respondents question of tinkering or altering the seniority list dated 31.12.1993 of the appellant is impermissible. Therefore, the official respondents have erred in rectifying the seniority list dated 31.12.1993 in the absence of cancellation of appointment of the appellant to the post of Steno-Typist and further promotions to Junior and Senior scale, when the official respondents have not withdrawn, cancelled or modified the date of appointment of the appellant to the post of Steno-Typist issued on 27.07.1992 which is basis for assignment of ranking in a seniority list. When the appellant's entry into the cadre of Steno-Typist is not disturbed then the question of altering the seniority is impermissible. That apart, there is an enormous delay in altering ranking of the appellant that is the alteration of seniority list dated 31.12.1993 in the year 2004. The Supreme Court in the case of P.S. Sadasivaswamy vs. The State of Tamil Nadu, reported in 1975 SCR (2) 356 held that if an employee is aggrieved by the promotion and seniority he should approach within a reasonable period. The Supreme Court in the case of B.S. Bajwa and Another vs. State of Punjab and Others, reported in AIR 1999 SC 1510 held that it is well settled that in service matters, the question of seniority should not be reopened in such a situation after the lapse of reasonable period because that results in disturbing the settled position what is not justifiable. There was an inordinate delay in the present case for making such a grievance. This reason was sufficient to decline interference under Article 226 and to reject the writ petition. Similarly, in the case of Dayaram Asanand Gursahani vs. State of Maharashtra, reported in 1984 (3) SCC 36 held that in the absence of satisfactory explanation for inordinate delay of 8-9 years in questioning seniority under Article 226 of the Constitution of India, the period of seniority and promotion assigned to other employee could not be entertained. Similarly, in the case of Dayaram Asanand Gursahani vs. State of Maharashtra, reported in 1984 (3) SCC 36 held that in the absence of satisfactory explanation for inordinate delay of 8-9 years in questioning seniority under Article 226 of the Constitution of India, the period of seniority and promotion assigned to other employee could not be entertained. In the case of H.S. Vankani and Others vs. State of Gujarat and Others, reported in (2010) 4 SCC 301 held as under:- “38. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and government, driving the parties to acute penury. It is well known that salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further it also consumes lot of judicial time from the lowest court to the highest resulting in constant bitterness among parties at the cost of sound administration affecting public interest. 39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India and Another vs. S.K. Goel, T.R. Kapoor vs. State of Haryana, Bimlesh Tanwar vs. State of Haryana. Legal principles have been reiterated by this Court in Union of India and Another vs. S.K. Goel, T.R. Kapoor vs. State of Haryana, Bimlesh Tanwar vs. State of Haryana. In view of the settled law the decisions cited by the appellants in G.P. Doval's case, Prabhakar case, G. Deendayalan and R.S. Ajara are not applicable to the facts of the case. 9. Therefore, official respondents' altering ranking is without authority of law. It is to be noted that assigning rank in a seniority list is under the provisions of Punjab Civil Secretariat (State Services-III) Rules, 1976. The competent authority is exercising statutory provisions. Therefore, he cannot re-draw unless statutory rules provides or judicial order. In the present case based on representation of 2nd respondent, 19th respondent proceeded to alter seniority. Even on the ground of delay the action of the official respondents is liable to be set aside. Further insofar as contention of the appellant that the alteration of seniority list is at the behest of 2nd respondent in collusion with the 19th respondent-Joint Secretary has not been examined by the trial court as well as appellate court. There is every possibility that alteration at the behest of the 2nd respondent and the 19th respondent for the reasons that seniority list published in 1993 has been altered only in the year 2004, the 19th respondent joint Secretary being arrayed by name he should have been represented on his own or through his own counsel. Since mala-fide has been urged against 19th respondent while altering the ranking of the seniority list even before this court 19th respondent is served and unrepresented. Reliance on the earlier decision i.e. CWP No. 1633 of 2011 is concerned facts are entirely different like in not noticing the fact that appointment to the post of Steno-Typist has not been challenged and the same is not disturbed. Further in the absence of challenge to promotion to the cadre of Junior and Senior scale alteration of seniority list is impermissible. Thus, it is distinguishable. In the case of Amarjeet Singh and Others vs. Devi Ratan and Others, reported in (2010) 1 SCC 417 , Supreme Court held as under: “28. In the instant case, promotions had been made by two different DPC's held on 19.12.1998 and 22.1.1999. Thus, it is distinguishable. In the case of Amarjeet Singh and Others vs. Devi Ratan and Others, reported in (2010) 1 SCC 417 , Supreme Court held as under: “28. In the instant case, promotions had been made by two different DPC's held on 19.12.1998 and 22.1.1999. Both the DPC's had made promotions under different Rules on different criterion and their promotions had been made with retrospective effect with different dates notionally. In the writ petition before the High Court, the promotion of the appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions. Challenging the consequential order without challenging the basic order is not permissible. (vide P. Chithranja Menon vs. A. Balakrishnan). 29. In Roshan Lal vs. International Airport Authority of India the petitions were primarily confined to the seniority list and this Court held that challenge to appointment orders could not be entertained because of inordinate delay and in absence of the same, validity of consequential, seniority could not be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined. 30. In H.V. Pardasani vs. Union of India, this Court observed that: (SCC p.473, para 9) 9.... If the petitioners are not able to establish that the determination of their seniority is wrong and they have been prejudiced by such adverse determination, their ultimate claim to promotion would, indeed, not succeed." A similar view had been reiterated by this Court in Govt. of Maharashtra vs. Deokar's Distillery. 31. These appeals are squarely covered by the aforesaid judgments. We are of the considered opinion that in absence of challenge to the promotion of the appellants, relief of quashing the consequential seniority list could not have been granted.” 10. In view of these facts and circumstances, the impugned action of the official respondents in altering the ranking of the appellant at this distance of time is impermissible so also when the private respondents have failed to challenge the appointment of the appellant, and his promotion to the cadre of Junior scale and Senior scale. So also official respondents have not withdrawn or cancelled or modified the appellant's appointment to the post of Steno-Typist. So also official respondents have not withdrawn or cancelled or modified the appellant's appointment to the post of Steno-Typist. In the absence of rectifying the foundation i.e. appointment to the cadre of Steno-Typist, seniority cannot be altered. For the reason date of appointment or entry into a cadre is the basis for fixing seniority in a cadre. Thus, trial court and appellate court have erred in appreciating these factual aspects. Hence, the decision of the official respondents in altering the ranking of the appellant and private respondents, orders of the trial court and appellate court are set aside. 11. Appeal stands allowed.