Punjab-Haryana High Court
Jagir Singh vs State Of Haryana And Others on 30 April, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:059065
CWP-2850-2019 & CWP-29582-2018 2024:PHHC:059065 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(223-A) CWP-2850-2019
Date of Decision : April 30, 2024
Jagir Singh .. Petitioner
Versus
State of Haryana and others .. Respondents
(223) CWP-29582-2018
Suresh Kumar and another .. Petitioners
Versus
State of Haryana and others .. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Rajesh Garg, Senior Advocate, with
Ms. Neha Matharoo, Advocate, and
Mr. Mandeep Singh, Advocate, for the petitioner
in CWP-2850-2019.
Ms. Sushma Chopra, Advocate, for the petitioners
in CWP-29582-2018.
Ms. Vibha Tewari, Assistant Advocate General, Haryana.
Mr. Kanwal Goyal, Advocate, and
Ms. Sheena Dahiya, Advocate, for respondent No.3-HPSC
in both cases.
Mr. Sunil K. Nehra, Advocate, for respondents No. 4 to 7
in CWP-29582-2018.
HARSIMRAN SINGH SETHI J. (ORAL)
1. By this common order, two writ petitions, the details of which have been given in the heading, are being disposed of as both the petitions involve the same question of law on similar facts.
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2. The question raised in the present writ petitions is whether, the seniority which has been fixed by the respondents in the cadre of Class II post of the Agriculture and Farmers Welfare Department Haryana as framed on 01.06.2017 is in accordance with facts and circumstances of the present case coupled with the Rules governing the service.
3. Certain facts needs to be mentioned for the correct appreciation of the issue in hand. For the sake of convenience, the facts are being taken from CWP No.2850 of 2019.
4. The respondent-Commission issued an advertisement for appointment to the class II post in the Department of Agriculture. The petitioner as well as the private respondents competed for the said post and all i.e. the petitioner as well as the private respondents were appointed on the post in question vide order dated 17.06.2004 (Annexure P-1). The said order of appointment was addressed to all the selected candidates in a particular manner and even the appointment as recommended in paragraph 13 of the appointment order dated 17.06.2004 was in a particular order. As per the said appointment order, the petitioner was placed at Sr. No.13 and private respondents were placed at Sr. No. 17 to 20. All the selected candidates joined and continued working on their respective posts.
5. For the first time, after the appointment, on 07.07.2011, a tentative seniority list was prepared of the officers working in class II cadre which was circulated for the objections. In the said tentative seniority list, the name of the petitioner was shown at Sr. No.17 whereas, the private respondents were placed at Sr. No. 21 to 24.
6. Before the said seniority list could be finalized, the Department received a letter dated 08.05.2014 from the Commission wherein, for the first time, a joint merit of the candidates who were appointed vide 2 of 8 ::: Downloaded on - 07-05-2024 20:58:12 ::: Neutral Citation No:=2024:PHHC:059065 CWP-2850-2019 & CWP-29582-2018 2024:PHHC:059065 3 appointment order dated 17.06.2004 (Annexure P-1), was prepared and sent to the Administrative Department. In the said letter, the petitioner's name was mentioned at Sr. No.17 whereas, the private respondents were mentioned from Sr. No. 12 and 14 to 16.
7. Aggrieved against the said merit list being circulated for the first time after a period of approximately 10 years of appointment, the petitioner along with other aggrieved candidates approached this Court by filing CWP No.16514 of 2014 challenging the order dated 08.05.2014 (Annexure P-3) by which, the names were recommended in the order of merit. The said writ petition was not entertained being pre mature as no prejudice had been caused to the petitioner upto the said date.
8. Thereafter, the respondent-Commission in the year 2017, issued another tentative seniority list dated 01.06.2017 (Annexure P-5) wherein, the name of the petitioner was mentioned at Sr. No.18 and the private respondents were shown from Sr. No. 13 to 17.
9. Without finalizing the said tentative seniority list, the respondent-Commission held the DPC for further promotion and on the basis of said tentative seniority list, the promotions were ordered by the Department. Feeling aggrieved against the said action of the Department, the petitioner filed the present petition being CWP No.2850 of 2019 challenging the tentative seniority list as well as the proceedings of the departmental promotional committee which were based upon the said tentative seniority list.
10. Upon notice of motion, the respondents appeared and stated that the final seniority list in pursuance to the tentative seniority list dated 01.06.2017 (Annexure P-5), has already been finalized and in the final seniority list, the private respondents have been shown to be senior to the 3 of 8 ::: Downloaded on - 07-05-2024 20:58:12 ::: Neutral Citation No:=2024:PHHC:059065 CWP-2850-2019 & CWP-29582-2018 2024:PHHC:059065 4 petitioner hence, no grievance can be raised by the petitioner qua the inter se seniority between the parties. As per the respondents, the merit obtained by the candidate has been treated as a basis for issuing the joint merit list dated 08.05.2014 (Annexure P-3) hence, the claim of the petitioner that he should be treated senior to the private respondents, may kindly be rejected.
11. The first argument which has been raised by the learned senior counsel appearing on behalf of the petitioner is that after the appointment of the petitioner vide order dated17.06.2004 (Annexure P-1), all along, the petitioner has been treated senior to the private respondents including the tentative seniority list which was issued on 07.07.2011 (Annexure P-2) and it is only for the first time that the joint merit list issued by the Commission dated 08.05.2014 (Annexure P-3), the said recommendations were made on the basis of the merit where the petitioner has been shown junior to the private respondents and the settled seniority between the parties was sought to be disturbed, which cannot be allowed. The reliance is being placed upon the judgment of the Hon'ble Supreme Court of India in S.B Dogra vs. State of Himachal Pradesh and others (1992) 4 SCC 455 and State of Punjab and another vs. Balkaran Singh (2006) 12 SCC 709.
12. Learned counsel for the respondents, on the other hand, submits that as per the rules governing the service, the seniority of a direct recruit is based upon on the merit obtained by him/her in the competitive examination hence, as the private respondents have secured more marks and are higher in merit than the petitioner, the petitioner cannot claim seniority merely on the ground that for the period of 10 years, he was being treated senior to the private respondents.
13. I have heard learned counsel for the parties and have gone through the record with their able assistance.
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14. The question which needs to be adjudicated is as to who needs to be declared senior though, both the petitioner as well as the private respondents came into service by the same order of appointment dated 17.06.2004 in pursuance to the same selection process.
15. For the purpose of seniority, the rules governing the service are to be adhered to and the seniority needs to be fixed according to the services rules.
16. It may be noticed that the post in question is governed by the Haryana Agriculture (Group B) Services Rules, 1995. As per Rule 11 of 1995 Rules, the inter se seniority of the members of the service is to be determined on the basis of continuous length of service on the post but with regard to the direct recruitment, the merit obtained by the candidate, determined by the Commission while making the selection, is to be treated as a seniority inter se of the candidates selected in the same selection. The relevant Rule 11 of 1995 Rules is as under:-
" 11. Seniority- seniority interse of the members of the service shall be determined by the length of continuous service on any post in the service.
Provided that where there are different cadres is in the service, the seniority shall be determined separately for each cadre.
Provided further that in the case of a member appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority."
17. From the Rules governing the seniority, it is clear that for the direct recruited employees, the seniority/merit prepared by the Commission is to be treated as inter se seniority. By keeping the said Rule in mind, the issue raised in the present petition needs to be decided.
18. With regard to the argument which has been raised on behalf of 5 of 8 ::: Downloaded on - 07-05-2024 20:58:12 ::: Neutral Citation No:=2024:PHHC:059065 CWP-2850-2019 & CWP-29582-2018 2024:PHHC:059065 6 the petitioner that the settled seniority cannot be disturbed hence, the seniority list which has been finalized in the year 2018 by which, the private respondents have been shown senior to the petitioner, is liable to be set aside. It may be noticed that while appointing the petitioner vide order dated 17.06.2004 (Annexure P-1), it has not been mentioned that the candidates whose serial numbers have been mentioned, is based upon the merit obtained by them. The only averment in the appointment order is that "following candidates have been appointed by the Governor of Haryana." The serial numbers have been given in which, the serial number of the petitioner is at Sr. No.13 whereas, the private respondents starts from Sr. No. 17 to 20. In the tentative seniority list dated 07.07.2011 which was issued, the petitioner was shown senior to the private respondents but it is a conceded position that the said tentative seniority list dated 07.07.2011 (Annexure P-2) never came to be finalized at any given point of time before the recommendation of the Commission dated 08.05.2014 (Annexure P-3) received by the Department. For the first time, the merit of the candidate was declared by the Commission and informed to the Department so as to frame the seniority inter se keeping in view the rules governing the service. Once, no final seniority list was ever prepared by the Department and all the seniority lists were tentative, it cannot be said that the right of the petitioner crystallized in any manner so as to gain seniority over and above the private respondents. In the absence of any crystallized right, the judgments which are being cited by the learned counsel for the petitioner, will have no applicability to press the argument that a settled seniority between the parties need not to be changed in case the same has not been objected to by any side.
19. Further, though the petitioner was being treated senior keeping 6 of 8 ::: Downloaded on - 07-05-2024 20:58:12 ::: Neutral Citation No:=2024:PHHC:059065 CWP-2850-2019 & CWP-29582-2018 2024:PHHC:059065 7 in view the issuance of the tentative seniority list in the year 2011 but any benefit being granted contrary to the Rules, cannot be allowed to continue. Even if, a person has been granted seniority contrary to the Rules inadvertently, the same can be rectified but in the present case, it has already come on record that the Commission for the very first time gave the merit list on 08.05.2014 to the Department. That being so, the right accrued in favour of the private respondents to gain the seniority as per the said merit list only on 08.05.2014. Prior to that, the ambiguity qua the inter se merit in the selection process existed and the seriatum in which, the names were mentioned in the appointment order, was being treated as a seniority point, which fact came to be noticed as incorrect ultimately. Hence, the presumption of the petitioner being senior for a period of 10 years, will not give him any right to claim that the said presumption should be allowed to continue till both i.e. petitioner and the private respondents are in service and that too by ignoring the facts and rules governing the service. Once there is a merit list of the candidates prepared by the Commission and as per the seniority rule, the seniority inter se has to be based upon the said merit and it is a conceded position that the petitioner is having lesser merit as compared to the private respondents, grant of seniority to the private respondents over and above the petitioner needs no interference at the hands of this Court.
20. Now the question arise as to whether, the seniority which has been framed by the Department, is in accordance with law or not. As per the seniority Rule, which has been reproduced hereinbefore, the seniority of the direct recruits is to be determined on the basis of the merit inter se. It is not disputed that as per the merit inter se, which has been depicted in the recommendation dated 08.05.2014 (Annexure P-3), the petitioner is below 7 of 8 ::: Downloaded on - 07-05-2024 20:58:12 ::: Neutral Citation No:=2024:PHHC:059065 CWP-2850-2019 & CWP-29582-2018 2024:PHHC:059065 8 the private respondents. Once the petitioner is below the private respondents as per the merit obtained in the selection process, the petitioner cannot be granted seniority over and above the private respondents keeping in view the rule relating to the grant of seniority. The merit obtained by a candidate before the Commission is to be treated inter se seniority hence, as the petitioner and private respondents were selected in the same selection process and the private respondents were placed at higher in merit having obtained more marks than the petitioner, no grievance can be raised by the petitioner being shown junior to the private respondents.
21. No other argument was raised.
22. Keeping in view the above, no ground is made out for any interference by this Court in the present case.
23. The claim of the petitioners in CWP No.29582 of 2018 qua the private respondents is akin to the petitioner in CWP No.2850 of 2019 and therefore, on the same grounds, the claim of the petitioners in CWP No.29582 of 2018 is also declined as no differentiating fact has been pointed out during the hearing.
24. Both the writ petitions are dismissed.
25. A photocopy of this order be placed on the file of other connected case.
April 30, 2024 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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