TMI Blog1997 (5) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... Seniority no. in the seniority list of 1.1.95 Dt. of apptt. as Clerk As Asstt. As Dy. Supdt. As Supdt. As Budget (Officer class II) As R.E. (Class - I) APPELLANTS: 1. Jagdish Lal 22 24.11.58 1.12.68 27.10.87 1.4.90 - - 2. Ram Dayal 28 22.2.61 1.12.68 16.1.89 9.8.91 - - 3. i Surinderjit Kap 56 1.9.66 10.4.72 2.2.96 - - - PRIVATE RESPONDENTS (Reserved Category candidates) 1. Ram Asra 48 31.1.66 22.9.71 26.5.82 4.9.87 - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh they were promoted on the basis of rule of reservation applying the 100 point roster maintained by the Government, they stole a march over the appellants who were being members of the same Class III Service. They further claimed that though the reserved candidates has got promotion to the different posts earlier to them, the appellants still were entitled to be senior to them for the purpose of promotion to Class I posts. As a consequence, they were entitled to be considered for promotion before consideration of the reserved candidates including H.S. Hira, the fifth respondent as Registrar (Education). The sheet anchor of their case was the decision of this Court in Ajit Singh Januja Ors. v. State of Punjab [JT 1996(2) SC 727]. The High Court dismissed the writ petition inter alia on the ground of abnormal delay in challenging the promotion of the reserved candidate to the post of Asstt./Dy. Superintendents and Superintendents. It observed that though the reserved candidates were promoted on different dates as Superintendents etc. earlier to the appellants, they having become members of the Service in the lower cadres earlier to the appellant, were entitled to be considered f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar meant the panel prepared by the recruiting authority at the time of initial entry in the service and that the seniority of the employees in the higher grades must also be determined with reference to their panel position. This very principle has been reiterated in Ajit Singh s case in which circular issued by the Government of Punjab and the judgment of the Full Bench case in Jaswant Singh s case (supra) came up for consideration. The Division Bench which decided Madan Lal s case simply applied the observations made in the three decisions of the Supreme Court and held that reserved categories employees have no right to be assigned seniority on the promoted posts over and above the general category employees who were senior in the lower cadre and who got promotion in the next higher post on a later date. However, in Akhil Bhartiya Soshit Karamchari Sangh s case (supra) their Lordships clarified that the principle laid down in R.K. Sabharwal s case and Virpal Singh Chauhan s case (supra) will operate prospectively and not retrospectively. In our opinion, none of these decisions is of any help for interpreting rules relating to seniority which have been extracted above. In none ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Registrar in Group B Class I Service by operation of ratio of Ajit Singh s case and Union of India v. Vir Pal Singh Chauhan [(1995) 6 SCC 684], seniority is required to be determined keeping the seniority of the general and reserved candidates in the lower grade/cadre in fact as all the posts are of the same Service. As soon as the general candidates get promoted to the higher cadre, the inter se seniority of the general candidates and the reserved candidates is required to be redetermined on the basis of their inter se seniority in the feeder grade/cadre. That was the view taken by this Court in Veer Pal Singh Chauhan case. Even though the reserved candidates were promoted earlier to the general candidates, the inter se merit between the general candidates and the reserved candidates in Group B Class I Service should be redetermined. The promotion is required to be given to Class I Service on that basis. Promotion at various levels in Class II Service is also, accordingly, required to be given and the seniority determined. As soon as the general candidates get promoted, even though later to the reserved candidates, they have right to have their seniority restored. As a conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the vacancies arise in the posts in the respective cadres as per the roster point, the candidates, whether general or reserved, are required to be considered for promotion and duly promoted in accordance with the existing Rules. They became members of the service in the respective cadres of Class III or Group B Class I Service. The moment they started discharging the duties of the posts and on declaration of the successful and satisfactory probation period, they became fullfledged members of that Service. They also ceased to be members of the feeding cadre. Therefore, the moment, the termination of probation was declared, they ceased to be members of the Service of the lower feeder cadres at various levels as cadre officers. The subsequent promotions to the general candidates do not have the effect of denying the seniority secured by the reserved candidates due to their early promotion. Even if promotions to Group B Class I service are to be made without applying the rule of reservation, the reserved candidates having become senior to general candidates, are entitled to be considered for promotion as per Rules in their own merit. Accordingly, the 5th respondent came to be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of members appointed by direct recruitment, the order of merit determined by the commission shall not be disturbed in fixing the seniority and candidates recommended earlier shall be senior to the candidate recommended later; Provide further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows: (a) a member appointed by direct recruitment shall be senior to a member appointed by promotion or by transfer; (b) a member appointed by promotion shall be senior to a member appointed by transfer; (c) in the case of members appointed by promotion or by transfer, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted or transferred; and (d) in the case members appointed by transfer from different cadres their seniority shall be determined according to pay, preference being given to a member, 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 the length of their service in the appointments, and if the length of such service is also the same, the older member shall be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer in the Service or by promotion from amongst the Superintendents in the Service; In other words, all feeder posts enumerated constitute source of recruitment to the post of Registrar. or (c) in the case of Budget Officer,- (i) by promotion from amonst the Superintendents; or (ii) by transfer or deputation of an officer of equivalent grade/experience, already in the service of Government of India or any State Government. (d) in the case of Superintendent,- (i) by promotion from amonst the Deputy Superintendents, or Assistants in the Haryana Education Department (State Service, Group C) Services; or (ii) by transfer or deputation of an officer of equivalent grade already in the service of Government of India or of any State Government; or (iii) by direct recruitment. (2) Whenever any vacancy occur or is about to occur in the Service, the appointing authority shall determine in what manner such vacancy shall be filled. (3) All promotions, whether from one grade to another or from one class of service to another class of service, shall be made by selection based on merit and taking into consideration seniority but seniority alone shall not given any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds confirmed to the Service. He gets appointed to a permanent vacancy subject to availability and thereafter he becomes full-fledged member of the Service. It is settled legal position that confirmation is an inglorious uncertainty. Continuous length of service; if appointed according to the Rules on consideration of claims of eligible persons as on that date as per rules accords seniority and gets counted from the date of initial appointment by direct recruitment/promotion/ transfer to the cadre/post. The question then arises : as to from what date the seniority is required to be determined? As seen, under Rule 11, the inter se seniority of the member of the Service shall be determined by the length of continuos service is a post in the Service. However, exception are carved out to the said general rule. Under the first proviso, where there are different cadres or categories of posts in the Service, the seniority shall be determined separately for each cadre or category of posts. The second proviso being not relevant for our purpose, is omitted. Under the third proviso, in case of two or more members are appointed on the same date, their seniority shall be determined in the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computation of seniority would be the same, viz., as soon as his probation is declared, he becomes a member of the Service. On availability of permanent post, he gets appointed to the post and thereafter ceases to be a member of the feeder/lower cadre. In this regard, under Fundamental Rule 14-A(a) a Government Servant s lien on a post may, in no circumstance, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post. Under Fundamental Rules 14-A(d) a Government servant s lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under the Central Government or a State Government) outside the cadre on which he is borne. A conjoint reading, thus, would establish that a Government servant shall always have a lien on the post and simultaneously, he shall not have right to hold any lien on more than one post. In other word, the articulated be a member of two post/service/grade/cadre nor is he eligible to hold lien on two posts. On promotion from the post of Clerk as Assistant, on successful and satisfactory completion of probation and declaration thereof, he becomes a member of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 299, para 22] this Court comprising all the three of us, had held that in service jurisprudence, a distinction between a right and interest has always been maintained. Seniority is a facet of interest. When the Rules prescribed the method of selection/recruitment, seniority is given as per the ranking given and governed by such as was laid in the rules . Similar view taken in A.K. Bhatnagar V/s. Union of India [(1991) 1 SCC 544] was upheld by this Court. In Akhil Bhartiya Soshit KarmchariSangh V/s. Union of India [(1996) 6 SCC 65] to which tow of us, K. Ramaswamy and G.B. Pattanaik, were members, this Court has held that no member of the service has a vested right to promotion or seniority but an officer has an interest in seniority acquired by working out the rules. In Md. Shujat Ali Ors. etc. v. Union of India Ors. etc. [(1975) 1 SCR 449] a Constitution Bench had held that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing conditions of service. In Mohd. Bhakar vs. Krishna Reddy [1970 SLR 268], a Bench of three Judges had held that any rule which affects the promotion of a person, relates to conditions of servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Dr. Dina Nath Shukla Anr. [JT 1997 (2) SC 467 para 8] it was held that the craving for equality generates clash of interest and competing claims amongst the people, for emancipation of the Dalits and Tribes from the pangs of absolute prohibition of legal equality under Articles 15(1) and 16(1). Under Article 15(2) to (4) and Article 16(4) and 4(a) read with the Directive Principles, protective discrimination has poured forth practical content, softened the rigour of legal equality and given practical content of equality in opportunity in favour of unequals to hold an office or post under the State in the democratic governance. In paragraph 9, it is further stated that in a democracy governed by rule of law every segment of the society is entitled to a share in the governance of the country. Permanent bureaucray is a facet of our democratic governance and an integral scheme of the Constitution. Recruitment to a post or an office under State is governed by the Constitution, law and the rules made under proviso to Article 309 of the Constitution or administrative instructions in the absence of statutory rules. Protective discrimination has been upheld by this Court which connote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to and anathima of equality on the ground that every individual is entitled to equality of opportunity based purely on merit mantra judged by the marks obtained by him. We cannot countenance such a suggestion, for to do so would make the equality clause becomes sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities and opportunity for excellence in each cadre/grade. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate inequality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and in order to bring about real equality, affirmative action fills the bill and allows to give preference to the socially and economically disadvantaged persons by inflicting handicaps on those more advantageously placed. Such affirmative action though apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any kind whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations. This Court held that the fundamental rights are to be construed broadly so as to enable the citizen to enjoy the fundamental right by succeeding generations. In A.K. Gupta s case, therefore, it was held that to give adequate representation to the Dalits and Tribes in all posts or classes of posts of services to make it a reality and truism, facilities and opportunities are required to be provided to the Dalits as enjoined in Article 38 for the purpose of achieving equality of representation as a real content. In para 30, it was observed that in abstract application of equality under Article 14, every citizen is treated alike without there being any discrimination. Thereby, the equality, in fact, subsists. Equality prohibits the State from making discrimination among citizen on any ground. However, inequality in fact without differential treatment between the advantaged and disadvantaged subsists. In order to bridge the gap between inequality in results and equality in fact, protective discrimination provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r it is really so and whether it interjected the normal service jurisprudence of continuous officiation in a post or a cadre, unless promotion is not in accordance with rule? In Direct Recruit Class II Engineering Officers Association v. State of Maharashtra Ors. [(1990) 2 SCC 715], the Constitution Bench had held in respect of preposition No.1 in paragraph 47 that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his confirmation. The corrolary of the above rules is that where the initial appointment is only ad hoc and not according to rules and is made as a stop-gap arrangement, the officiation in such post cannot be taken into account for purpose of determination of the seniority. to appreciate the effect and the real impact of the above two decision, it is necessary to look into the facts therein. In Vir Pal Singh Chauhan s case the principle consideration for promotion was seniority under the rules made by the Railway Establishment Code. The Railway Board issued circular letter dated August 31, 1982 which referred the word Panel . It was a case of pure seniority rule. Explaining the meaning of the word panel prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rudence; nor did it intend to lay down any separate rule of interpretation in determining inter se seniority of the reserved candidates and the general candidates and their fusion into common seniority in the higher echelons over the erstwhile junior reserved candidates. Equally, the ratio in Ajit Singh s case, as rightly pointed out by the High Court, is inapplicable. It did not lay down any separate rule in that behalf. In that case it was not brought to the notice of this Court the existence of operation of the service conditions and seniority rule like Rule 11 of the Rule in this case in each grade/cadre or services in Punjab Haryana Secretariat service or Civil Services. On the other hand, this Court was invited to deal with the circular letter issued by the Punjab Haryana Government, on the subject of reservation rules. The primary question before the Full Bench of Punjab Haryana High Court in Jaswant Singh v. Secretary, Govt. of Punjab Haryana [1990 (4) SLR 257] was whether the reserved candidates were eligible for consideration for promotion to the general vacancies? It was held that they were entitled. The further question was : whether their placement should be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reserved candidates together are considered for promotion to a higher cadre/grade. The ration in Ajit Singh s case should be understood in the above backdrop and perspective. If so understood, this Court in Ajit Singh s case has not laid down any contra principle to the settled legal service jurisprudence; nor it intended to cut down the effect of the Rule in vogue for determination of the inter se seniority in each cadre/grade in accordance with the Rules. Therefore, it is a simplistic euphoria to think that at all events the earlier promotions had by the reserved candidates have been slide down and put back in the vanguard of the erstwhile seniority position in the feeder cadre/grade. If this clarity of though is kept in fore-front, there is no occasion to adopt a mistaken application of the principle to all facts in all circumstance. In Ajit Singh s case, this Court did not, therefore, intend to lay down any principle contra to the settled legal principle that continuous officiation to a promoted post in accordance with the rules gives right to seniority. The observation of this Court in Ajit Singh s case that any other rule of construction would be arbitrary violating Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive cadre/grade from Assistant to Superintendent in Class III Service and 5th respondent in Class I Service. Their seniority is not and cannot have the effect of getting wiped out after the promotion of general candidates from their respective dates of promotion. The general candidates remain junior in higher echelons to the reserved candidates as was held by the High Court. That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or 32 of the Constitution. It is not necessary to reiterate all catena of precedents in this behalf. Suffice it to state that the appellant kept sleeping over their rights for long and elected to wake up when they had the impetus from Vir Pal Chauhan and Ajit Singh s ratios. But Vir Pal Chauhan and Sabharwal s cases, kept at rest the promotion already made by that date, and declared them as valid; they were limited to the question of future promotions given by applying the rule of reservation, to all the persons prior to the dated of judgment in Sabharwal s case, which required to examined in the light of law laid in Sabharwal s case. Thus earlier promotions cannot be reopened? Only th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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