Punjab-Haryana High Court
Karamjit Singh vs State Of Punjab And Another on 20 March, 2024
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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
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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
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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
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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
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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.
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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
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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
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