Punjab-Haryana High Court
Dilbag Rai And Others vs State Of Punjab And Others on 22 April, 2024
Author: G. S. Sandhawalia
Bench: G. S. Sandhawalia
Neutral Citation No:=2024:PHHC:043923-DB
LPA-961-2023 (O&M) 2024:PHHC:043923-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA NO. 961 OF 2023 (O&M)
RESERVED ON : MARCH 19, 2024
DATE OF DECISION : APRIL 22, 2024
Dilbag Rai and others ...Appellants
Versus
State of Punjab and others ...Respondents
CORAM : HON'BLE MR. JUSTICE G. S. SANDHAWALIA,
ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE LAPITA BANERJI
Present : Mr. Ashok Kumar Nabhewala, Advocate,
For the appellants.
Mr. Saurav Khurana, Additional Advocate General, Punjab.
LAPITA BANERJI, J.
Consideration in the present appeal is of an order dated May 26,
2023 passed by an Hon'ble Single Judge in CWP No.12196 of 2014, whereby
the Hon'ble Single Judge declined the prayer of the appellants to quash the
office orders dated March 04, 2003, seniority list dated February 24, 2004 and
speaking order dated December 02, 2005.
2. By the common order dated May 26, 2023, the Hon'ble Single
Judge decided two writ petitions being CWP No. 16737 of 1990 and the
present writ petition being CWP No.12196 of 2014. In the first round of
litigation relating to the parties in CWP No.16737 of 1990, the learned Single
Judge had allowed the prayer of the petitioners on July 15, 2010, but a Co-
ordinate Bench set-aside the order passed by learned Single Judge directing
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the writ petition to be heard again. In the said writ petition, validity of Rule 9
(1) of the Punjab Roadways (Ministerial) State Service Class-III Rules 1977
(for short "1977 Rules") had been challenged in so far as the Diesel Pump
Attendants (DPAs) were being clubbed with Class,-IV employees and
directions had been sought for granting benefits equivalent to that of the
Clerks to DPAs. The said challenge to the vires of the Rules was given up
before the Hon'ble Single Judge on January 16, 2020, when the said writ
petition was being heard afresh. Rule 9 (1)(f) of the 1977 Rules is reproduced
herein below :
"(f) in the case of Clerks including Ledger Keepers-
(i) 90% by direct appointment; and
(ii) 10% by promotion from amongst Diesel Pump
Attendants, Restorers, Daftries and Peons if they
fulfill the requisite qualifications, or
(iii) By transfer or deputation of an official already in
the services of Government of a State or Government
of India, if suitable candidate is not available by the
methods referred to in sub-clause (i) and (ii)."
3. The appellants in the present Letters Patent Appeal had inter-alia
prayed for a declaration that Rule 8 of Punjab Civil Services (General &
Common Conditions of Service) Rules 1994 (for short "1994 Rules") is ultra
vires the Constitution of India in wrongly determining the seniority by
determining the length of continuous service on a particular post in a cadre, in
CWP No.12196 of 2014. However, such challenge to vires was given up. Rule
8 of the 1994 Rules is set out hereinafter :
8. Seniority - The seniority inter se of persons appointed to posts
in each cadre of a Service shall be determined by the length of
continuous service on such post in that cadre of the Service.
Provided that in the case of persons recruited by direct
appointment who join within the period specified in the order of
appointment or within such period as may be extended from time
to time by the appointing authority subject to a maximum of four
Months from the date of order of appointment the order of merit
determined by the Commission or the Board, as the case may be,
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shall not be disturbed: Provided further that in case a person is
permitted to join the post after the expiry of the said period of
four months in consultation with the Commission or the Board, as
the case may be, his seniority shall be determined from the date
he joins the post: •
Provided further that in case any person of the next
selection has joined a post in the cadre of the concerned Service
before the person referred to in the preceding proviso joins, the
person so referred shall be placed below all the persons of the
next selection who join within the time specified in the first
proviso:
Provided further that in the case of two or more persons
appointed on the same date, their seniority shall be determined as
follows:-
(a) a person appointed by direct appointment shall be
senior to a person appointed otherwise;
(b) a person appointed by promotion shall be senior to a
person appointed by transfer;
(c) in the case of persons appointed by promotion or
transfer, the seniority shall be determined according to the
seniority of such persons in the appointments from which they
were promoted or transferred; and
(d) in the case of persons appointed by transfer from
different cadres their seniority shall be determined according to
pay, preference being given to a person who was drawing a
higher rate of pay in his previous appointment; and if the rates of
pay drawn are also the same, then by their length of service in
these appointments and if the length of service is also the same,
an older person shall be senior to a younger person:
'[Provided further that in the case of persons recruited by
direct appointment in the same cadre obtaining equal marks
during same selection process, their inter-se-seniority shall be
determined on the basis of their age. That is, an older person
shall be senior to the younger person.] Note:- Seniority of
persons appointed on purely provisional basis or on ad hoc basis
shall be determined as and when they are regularly appointed
keeping in view the dates of such regular appointment.
The appellants also prayed for quashing of office order dated March 04, 2003,
provisional seniority list dated February 24, 2004 and speaking order dated
December 02, 2005 which was rejected by the Hon'ble Single Judge.
4. The two issues which fell for determination by the Hon'ble
Single Bench were as follows :
i) Whether the Diesel Pump Attendants who were re-
designated as Clerks in 1999 should have been placed at the tail
end of the seniority list, particularly when their pay scales were
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equivalent, once a conscious decision was taken by the
government to merge the post of Diesel Pump Attendants with
that of Clerks ?
ii) Whether the State was permitted to make any recovery
from the appellants in view of the fact that most of them had
already retired ?
5. The Hon'ble Single Judge extracted Rule 9(1)(f) and (h) of the
1977 Rules to demonstrate that 90% of the vacancies to the post of Clerks
(including Ledger Keepers) were to be filled by direct recruitment, whereas
10% were to be filled by way of promotion from amongst; a) Diesel Pump
Attendants b) Restorers c) Daftries d) Peons. In the event suitable candidates
could not be found by way of aforesaid two processes then appointments
could have been made by way of transfer or deputation.
6. In case of DPAs, appointments could have been made by way of
direct recruitment or by way of transfer, or deputation of an officer already in
service of government of a State or Government of India if suitable candidates
were not available by the method of direct appointment.
7. Pursuant to government instructions dated October 06, 1994, the
posts of a) Cashier, b) Assistant Cashier, c) Assistant Accountant, d) Store
Keeper, e) Assistant Store Keeper were re-designated to the post of Clerk,
whereas the post of Diesel Pump Attendants was merged with the post of
Clerk with effect from January 27, 1999. The writ petitioners/appellants
worked as Diesel Pump Attendants and it was contended on their behalf that
the benefits to the post of Clerk should have been given from 1994 as their
qualifications and pay scale were at par with that of the Clerks prior to 1994.
The said stand was disputed by the State as well as by the private respondents
before the writ Court, by referring to the service Rules governing the DPAs.
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8. Vide notification dated January 27, 1999, the 1977 Rules were
amended and Rules 8 and 9 were substituted whereby it was recognized that
the post of Cashier, Assistant Cashier, Store Keeper, Assistant Store Keeper
and Assistant Account were re-designated as Clerks from 1994 pursuant to
the government instructions and DPAs were to be re-designated as Clerks
from the date of the said notification in 1999.
9. The Hon'ble Single Judge came to the finding that even though in
1999 there was a decision to merge the post of Diesel Pump Attendants with
that of Clerks, there was no infirmity in the conscious decision taken by the
government to put them at a lower pedestal in hierarchy, in the list compared
to the people already working as Clerks. The Hon'ble Single Judge held that
there was no arbitrariness or perversity in placing the Diesel Pump Attendants
at the tail end of the seniority list in the post of Clerk as there was no
infringement of any provisions of a service rule/regulation by the said
decision. The post of DPAs was merged with the post of Clerk for the first
time in 1999 and the appellants could not claim that their services as DPAs
should have been counted as service to the post of Clerk since the initial date
of appointment as DPAs, as post of DPAs was feeder cadre to the post of
Clerk prior to 1999. Consequently, the appellants failed on the first issue.
10. On the second issue of purported recovery from the members of
the appellants' association, the writ petition No.16737 of 1990 was allowed by
restraining the respondents from recovering any amount from the appellants
who worked as Class-III employees and mostly retired from service, relying
on Apex Court's decision in "State of Punjab and others v. Rafiq Masih
(White Washer) 2014 (8) SCC 883.
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11 This Court has heard the arguments of the parties and perused the
materials placed on record and it transpires that the Ledger keepers, Assistant
Accountants, Assistant Cashiers, Cashiers, Store keepers and Assistant Store
Keepers who had been working in Punjab Roadways were re-designated and
allowed the scale of Clerk with effect from October 06, 1994 and placed in
the Clerk cadre-seniority list from October 06, 1994. In view of the Punjab
Roadways (Ministerial) Service Class-III (1st Amendment) Rules 1999 vide
notification dated January 27, 1999, Diesel Pump Attendants were re-
designated as Clerks and were placed in Clerk cadre/seniority list from
January 27, 1999. DPAs were held to be entitled to claim benefits in the
Clerk Cadre from the date of placing them in the said cadre i.e January 27,
1999. Admittedly, no challenge to the amended Rules was made by the
appellants in 1999 or the office instructions of 1994.
13. By an office order dated February 24, 2004 (Annexure P-12)
three copies each of gradation lists were sent by the office of Director State
Transport Punjab, Chandigarh to all the General Managers of Punjab
Roadways, Driver Training School, Punjab, Chandigarh and Government
Central Workshops, Punjab, Chandigarh, out of which one copy was directed
to be pasted on the notice boards for information of the concerned employees.
On one copy, the officers were directed to take signatures of all the employees
concerned, working in their office with regard to their approval to the
aforesaid two gradation lists dated October 06, 1994 and January 27, 1999.
Thereafter, copies of gradation lists were directed to be sent back to the office
of Director, State Transport, Punjab. An opportunity was given to the
employees who had objections with regard to said seniority lists to raise the
same within 15 days from the date of issuance of the said lists. It was
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unambiguously stated that no action would be entertained on any objection
received by the State Transport Department after the prescribed period for
raising such objections.
14. Challenging the seniority list published on February 24, 2004
around some 60 Diesel Pump Attendants filed a writ petition being CWP
No.8048 of 2004. The said writ petition was disposed of vide order dated May
25, 2004 at the motion stage by directing the Director State Transport to
dispose of the representations/objections of the writ petitioners dated March
08, 2004 within a reasonable time and by giving a personal hearing to them
and others likely to be affected by the decision. The appellants however took
no steps to challenge the provisional seniority list in 2004.
15. Upon the said direction being passed, a personal hearing was
given on July 16, 2004 to the incumbents and a speaking order was passed on
December 02, 2005. The Director State Transport upon taking advice from the
Principal Secretary, Transport Department, Punjab Government opined that
the seniority list dated February 24, 2004 was drawn up in accordance with
instructions/Rules issued by the government and the claim of the Diesel Pump
Attendants to grant them seniority in accordance with the length of their initial
service, was dismissed. The final seniority list was published on August 21,
2006.
16. Despite the final seniority list being published way back on
August 21, 2006 after considering all the objections raised by the candidates,
the appellants chose not to raise any objections to the same or to take any
steps to challenge the same. It is only in 2014 that the present appellants for
the first time agitated for their rights by challenging the office order dated
March 04, 2003, seniority list dated February 24, 2004 and speaking order
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dated December 02, 2005 by filing CWP No. 12196 of 2014, after the Co-
ordinate Bench directed CWP No.16737 of 1990 to be heard afresh. The
appellants being fence sitters throughout have sought to take advantage of the
abovementioned order of the Coordinate bench dated March 20, 2014
directing fresh hearing of CWP No.16737 of 1990 and the same cannot be
permitted at such a belated stage.
17. In "K. S. Vora and others v. State of Gujarat and others"
reported in AIR 1987 SC 2348, it has been held that once the State decides at
stages to switch over to a common cadre for the purpose of increasing
efficiency by introducing a spirit of total competition, the Rules of seniority
were to be framed by the employer and even if prospects of promotion of
certain groups of employees, in future maybe likely to be prejudiced by
introduction of such a policy, still no entertainable grievance could be made, if
the Rules were made in a bona fide manner and to meet the exigencies of
service.
18. The factual background in K.S. Vora (supra) was that the State of
Gujarat had decided at stages to switch over to the continuous cadre in respect
of all the four grades of the Subordinate Secretariat Services in 1974 and
before common cadre had been formed promotion was granted department-
wise. In 1974, a common cadre came into existence by merging the posts of i)
Clerk-cum-Typist, ii) Junior Assistant, iii) Senior Assistant and iv)
Superintendent. The Gujarat Subordinate Secretariat Services (Seniority and
Assistance) Rules, 1977 were framed under the proviso to Article 309 of
Constitution of India with retrospective effect from May 1, 1960 whereby the
principles of determining seniority was provided by stipulating that seniority
inter se amongst the Assistants based on their length of service in the joint
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cadre of Clerk-cum-Typist in all the departments of Secretariat as a whole.
After a common cadre was formed, the general feeling of dissatisfaction on
account of seniority not being given as in the respective departments and the
same was challenged. The Apex Court held that the 1977 Rules were
introduced to ease the issue of disparity amongst the employees after being
born in the common cadre and no challenge to the said Rules was allowed by
the Apex Court.
19. Similarly, this Court finds on the peculiar facts and circumstances
of the present case that there was no infirmity in putting the Diesel Pump
Attendants at the tail end of the cadre of Clerks. Furthermore, it finds that
under the 1977 Rules, the scale of pay of the DPAs were less than the Clerks
as can be discerned from the chart herein below :
Sr. No. Description of the Post Scale of Pay Special Pay
01 Clerk 110-250 -
02 Cashier 110-250 Rs.25/-
03 Assistant Cashier 110-250 Rs.10/-
04 Ledger Keeper 110-250
05 Store Keeper 110-250
06 Assistant Store Keeper 110-250
07 Diesel Pump Attendants 110-200
20. From the tabulated chart, it becomes clear that all the posts which
were merged to the post of Clerk in 1994 bore the same pay scale. In fact,
Cashiers and Assistant Cashiers had special pay of Rs.25/- and Rs.10/-
respectively payable to them along with their regular pay scale. However, the
Diesel Pump Attendants had a lower pay scale compare to the Clerks. Taking
the financial issue into consideration and also taking into consideration the
administrative exigencies, the respondents/executives took a decision to merge
the post of Diesel Pump Attendants with that of Clerks with effect from 1999.
The said decision cannot be said to be either perverse or discriminatory or
shocking to the conscience of the court.
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21. The appellants have been fence sitters since the publication of the
final seniority list in 2006, if not the provisional list in 2004 and sought to take
advantage when a co-ordinate Bench in LPA No.1847 of 2010 directed CWP
No.16737 of 1990 to be decided afresh, in 2014. The writ petition filed by the
present appellants is barred by gross delay, laches and acquiescence. A
beneficial reference can be made to "P.S. Sadasivaswamy v. State of Tamil
Nadu" 1975 (1) SCC 152, wherein it has been held by the Apex Court that any
challenge to a promotional list should be within a period of six months and
definitely not beyond the period of one year.
22. Resultantly, this Court finds that the judgment and order passed
by Hon'ble Single Judge suffers from no infirmity and merits no interference,
for the reasons other than the ones given by him. There is no arbitrariness or
perversity in the decision making process culminating into the speaking order
dated December 02, 2005. Accordingly, present latter patent appeal is
dismissed. Connected applications, if any, are also hereby disposed of.
(G. S. SANDHAWALIA) (LAPITA BANERJI)
ACTING CHIEF JUSTICE JUDGE
APRIL 22, 2024
shalini
Whether speaking/reasoned : Yes
Whether reportable : No
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