Punjab-Haryana High Court
Karamjit Singh vs State Of Punjab And Another on 20 March, 2024
CWP-23544-2019 Neutral Citation 2No:=2024:PHHC:040582
024:PHHC:040582
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
2 31
WP-23544-2019 (O&M)
C
Date of Decision: 20.03.2024
Karamjit Singh .....Petitioner
Versus
State of Punjab and another .....Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY resent: Mr. Kapil Kakkar, Advocate for the petitioner. P Mr. Charanpreet Singh, AAG, Punjab. **** AMAN CHAUDHARY, J.(ORAL) 1. ThepresentCivilWritPetitionhasbeenfiledunderArticles226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the order dated 15.05.2019. 2. Learned counsel would submit that the petitioner had applied for a Class-IV post, pursuant to the advertisement dated 24.06.1997, but for reasons best known, only 45 candidates were selected against the 70 posts.Accordingly, CWP-14680-1999waspreferredbyhim,whichwasdisposedofon02.12.2002,on the statement, as per which he was appointed on 01.01.2003, he being higher in merit under the general category. In compliance ofdirectiondated24.05.2018in CWP-9955-2006 filed challenging rejection of his request seeking deemed seniority from 18.08.1998, the department, vide order 20.07.2018, in terms of Rule 9 of Punjab State (Class-IV) Service Rules, 1963, assigned himthecorrect seniority position, as per select list, which has been wrongly canceled, though 1 of 6 ::: Downloaded on - 06-04-2024 03:48:33 ::: CWP-23544-2019 Neutral Citation 2No:=2024:PHHC:040582 024:PHHC:040582 -2- provisionally promoted as a Clerk on 10.09.2019, having qualified both english and punjabi typing tests. 3. Contrarily,learnedStatecounselcontendsthatasperRule9ibid,the earlier selection (merit list)isnottobedisturbedona'subsequentselection'and that those appointed prior to the petitioner would be adversely affected. The impugned order having been rightly passed, the writ petition warrants dismissal. 4. Heard learned counsel on either side. 5. It is beyond any cavil that despite the petitioner being in merit and posts vacant relating to the advertisement of the year 1997, he was not given appointment; a writ having been filed for the vindication of his grievances, he came to be appointedin2003underthegeneralcategory,marksobtainedbyhim found to be higher than that of the last candidate appointed therein, though his application was for consideration in the category of freedom fighters. However, his non-placement in seniority from the date of appointment of those lower in selectlist,madehimyetagainagitatebeforethisCourt,onthedisposalthereofto treat the petition as his representation, that the authorities by an order dated 20.07.2018, tentativelyassignedhimthecorrectposition,whichwasupsetbythe impugned order. Hence before this Court. 6. Moving forward, a reference is apposite to be made to Rule 9 ibid, regarding determination of seniority, which reads thus: " 9. The seniority inter se of members of the Service holding thepostsinthesamegrade,shallbedeterminedwithreference to the date of their appointment to such posts : Providedthatafterjoiningtheyhavecontinuouslyservedon such posts ; and Providedfurtherthatiftwoormoremembersareappointed in the same grade on the same date, their seniority shall be determined as follows -- (a) a member recruited by direct appointment shall be senior to a member recruited otherwise ; (b)amemberrecruitedbypromotionshallbeseniortoa 2 of 6 ::: Downloaded on - 06-04-2024 03:48:33 ::: CWP-23544-2019 Neutral Citation 2No:=2024:PHHC:040582 024:PHHC:040582 -3- p erson recruited by transfer ; (c) in the case of members who are recruited by promotion seniority shall be determined according to their seniority in the appointments from which they are promoted ; (d)inthecaseofmembersrecruitedbytransferfromthe same office, seniority shall be determined according to seniority in the appointments previously held in that cadre ; (e)inthecaseofmemberswhoarerecruitedbytransfer fromdifferentdepartmentsorofficesoftheGovernment, seniority shall be determined according to - pay preferencebeinggiventoamemberwhowasdrawinga higherrateofpayinhispreviousappointmentandifthe rateofpaydrawnbethesame,anoldermembershallbe senior to a younger member ; and (f) in the case of members recruited by direct appointment seniority shall be determined by their age, an older member being senior to a younger member: rovided that in the case of members recruited by direct P appointmenttheorderofmerit,ifany,drawnupatthetimeof the selection shall not be disbursed and personsrecruitedasa result of an earlier selectionshallbeseniortothoseappointed as a result of a subsequent selection : Provided further that in the case of members whoseperiodof probationisextendedunderrule7,thedateofappointmentfor thepurposesofthisruleshallbedeemedtohavebeendeferred to the extent the period of probation is extended." (emphasis supplied.) 7. The argument sought to be canvassed by the learned State counsel, cannotbecountenanced,as,presentisacaseofabelatedappointment,stemming from the same selection process. The issue involved is nolongerresintergra,in view of a catena of judgments. In Sanjay Dhar v. J&K Public Service Commission,(2000)8SCC182,Hon'bletheSupremeCourtheldthatcertificate filed by the appellant before the J&KPSCsatisfiedtherequirementofRule9of the J&K Civil Service (Judicial) Recruitment Rules, 1967, thus rejection of his applicationholdinghimineligiblewasnotjustified.He,havingparticipatedunder interimordersoftheHighCourtandsecuredthirdposition,washeldfullyentitled to the relief of appointment w.e.f. the same date onwhichothercandidateswere 3 of 6 ::: Downloaded on - 06-04-2024 03:48:33 ::: CWP-23544-2019 Neutral Citation 2No:=2024:PHHC:040582 024:PHHC:040582 -4- appointedfromtheselectlistof1992-93anddeservingtobeassignednotionallya place in seniority consistently with the order of meritassignedbytheJ&KPSC. Followingit,inC.Jayachandranv.StateofKerala,(2020)5SCC230,wherein, the appellant who was wrongfully excluded from the process of appointment on account of an illegal and arbitrary grant of moderation of marks but later appointed was granted notional seniority fromthedatetheothercandidateswere appointedinpursuanceofthesameselectlistpreparedonthebasisofthecommon appointmentprocess.Itwasobservedthatdelayindecidingtheseniorityclaimor evensomeoftheofficershavingbeengivenselectiongradewillalsonotdebarthe appellant to claim the notional benefit. 8. Thequestionsofmigrationofcategoryandante-datingsenioritywere also addressed in Sadhana Singh Dangi & Others vs. Pinki Asati & Others, (2022) 12 SCC 401, wherein quite clearly, anomaly hadarisenasaresultoflate appointments of candidates who though placed at a higher position in the select listwereunfortunatelynotgivenappointmentsalongwiththoseatlowerlevel,for whichitwasobservedthattheycouldnotbeheldresponsible.Itwasdirectedthat in order to do complete justice, they shall be deemed to havebeenappointedon the earliest of the dates when their juniors or candidates at lower levels were appointed and their seniority shall be reckoned from such deemed date of appointment and not from their actual date of appointments. A gainfulreference can also be made to Sunil & Ors. vs. High Court of Delhi & Ors. Etc, 2023 SCC OnLine SC 516, a case holding that the candidates whose marks get increased on re-evaluation, cannot be deprived of their position intheselectlist, there being no fault on their part and were required to be given the benefit of notional seniority i.e., inter se seniority on the basis of merit. 4 of 6 ::: Downloaded on - 06-04-2024 03:48:33 ::: CWP-23544-2019 Neutral Citation 2No:=2024:PHHC:040582 024:PHHC:040582 -5- 9. Evidently, realization having dawned upon the respondents, that for nofaultofhis,thepetitionerwaskeptout,hewassubsequentlyappointedandasa corollary thereto, placed attheappropriatesenioritypositionviz.thoseappointed priorintime,thoughlowerinmerit,theRulealsoenvisagingthatthemeritdrawn atthetimeoftheselectionisnottobedisturbed.Thereisthusfoundtobenoerror insuchadecision,itbeingfortifiedbythelucidenunciationoflaw.Inthewakeof which, the impugned order was passed by giving a short shriftandsolelyonthe premise of impact on those lower in merit, who hadevenbeenputtonoticeand objections received. 10. Having held so, the next question that arises is the placement in seniority of those younger in age but secured the same marks. In D.P. Das vs. Union of India, (2011) 8 SCC 115, while emphasizing that determination of seniority must emanate from some principles, which are just and fair, it was observed that, the law is clearthatseniorityisanincidenceofserviceandwhere therulesprescribethemethodofitscomputation,itissquarelygovernedbysuch rules. 11. In the case at hand, the rule position being crystal clear leads to a cogentconclusionthatindeedthepetitionerwasdeservingofbeingplacedhigher in seniority, on account of being older in age. The order dated 20.07.2018, thus was perfectly in consonance thereof. But for the lopsided approach of the respondents, this third bout of litigation could well have easily been avoided. 12. Insum,onanoverallcircumspection,theimpugnedorderisliableto be and hereby setaside.Thepetitionerbegrantednotionalseniority,payfixation and consequential benefits arising therefrom, by placing him above the ones' lowerinmeritalbeitappointedpriortohim,asalsothoseyoungerinagewithina 5 of 6 ::: Downloaded on - 06-04-2024 03:48:33 ::: CWP-23544-2019 Neutral Citation 2No:=2024:PHHC:040582 024:PHHC:040582 -6- period of two months.However,noactualmonetarybenefitswouldenuretohim for the said period. 13. Disposed of. (AMAN CHAUDHARY) 20.03.2024 JUDGE Rajeev (rvs) Whether speaking/reasoned: Yes/No Whether reportable: Yes/No 6 of 6 ::: Downloaded on - 06-04-2024 03:48:33 :::