Jagir Singh vs State Of Haryana And Others
2024 Latest Caselaw 9221 P&H

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

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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

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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

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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

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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

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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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