CWP/9266/2014 on 31 December 2015

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 9266 A/W CWP No.8368 of 2014.

Date of decision: 31.12.2014.

CWP No.9266/2014. Harish Kumar and another

…..Petitioners

Versus State of H.P and others

…Respondents CWP No.8368/2014. Sudha and others

…..Petitioners

Versus State of H.P and others

…Respondents

Coram:

The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting ?1 yes

For the petitioner(s): Ms. Jyotsna Rewal Dua, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Romesh Verma & Mr. Anup Rattan, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 and 2-State.

Mr. Ashwani Kaundal, Advocate, for respondents No. 3 to 5 in CWP No.9266/2014.

Mr. Ajay Chauhan and Mr. Anupinder Singh Rohal, Advocates, for respondents No. 3 to 8 and 10 to 12 in CWP No.8368/2014.

Mr. Manish Kumar Gupta, Advocate, for respondent No. 9 in CWP No.8368/2014.

Mr. V.D. Khidtta, Advocate, for respondent No. 13 in CWP No. 8368/2014.

Mr. Naveen K. Bhardwaj, Advocate, in CMP No.21123/2014.

Mansoor Ahmad Mir, Chief Justice (Oral)

Similar questions of facts and law are involved in both these writ petitions thus; we deem it proper to 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.

determine both these writ petitions by this common judgment.

2. It is apt to reproduce reliefs as sought for in both the writ petitions, as under:- CWP No.9266/2014. “(i) Quashing annexure P-5 (colly) dated 21.10.2014 to the extent it promotes respondents No. 3-5, who are juniors to the petitioners as JBT teachers to the post of Trained Graduate Teachers (TGT) without promoting the petitioners as TGTs.

(ii) For directing the respondents to promote the petitioners as Trained Graduate Teachers (TGTs) w.e.f. 21.10.2014 i.e., the date their juniors (respondents 3-5) were promoted as TGTs alongwith all consequential benefits of seniority and financial benefits.

(iii) For directing the respondents not to treat the date of joining of the JBT teachers as the basis for consideration for making their promotion to TGT amongst petitioners and private respondents (i.e. those appointed vide same appointment order) in the facts and circumstances of the case and in view of submissions made in the writ petition. Respondents may kindly be directed to treat the order of merit, in which the candidates are placed in the appointment order at annexure P1, as the basis of seniority for making promotions to the post of TGT.” CWP No.8368/2014. “(i) Quashing annexure P-3 (colly) dated 21.10.2014 to the extent it promotes respondents No. 3-12, who are juniors to the petitioners as JBT teachers to the post of Trained Graduate Teachers (TGT) without promoting the petitioners as TGTs.

(ii) For directing the respondents to promote the petitioners as Trained Graduate Teachers (TGTs) w.e.f. 21.10.2014 i.e., the date their juniors (respondents 3-12) were promoted as TGTs alongwith all consequential benefits of seniority and financial benefits.

(iii) For directing the respondents not to treat the date of joining of the JBT teachers as the basis for consideration for making their promotion to TGT amongst petitioners and private respondents (i.e. those appointed vide same appointment order) in the facts and circumstances of the case and in view of submissions made in the writ petition. Respondents may kindly be directed to treat the order of merit, in which the candidates are placed in the appointment order at annexure P1, as the basis of seniority for making promotions to the post of TGT.”

3. In both the writ petitions, petitioners have called in question the action drawn by the respondents, whereby seniority came to be fixed on the basis of the date of joining and not as per the merit obtained in the selection process and prayed that the Tentative Seniority list issued by the Department vide office order No. EDN- SLN-Elem.(E-III) Sty—1/2014-15925-32 and office order No.EDN-H (2) 7/2014-Pro-JBT-NM dated 21.10.2014, so far it promoted the private respondents, be quashed and respondents be directed to issue fresh seniority list, strictly in terms of the merits obtained by the candidates in the selection process and thereafter promotions be made to the next cadre, as per the Rules, occupying the field.

4. Replies have not been filed in both the writ petitions.

5. The learned counsel for the private respondents stated at the Bar that they have no objections in case prayer in both the writ petitions is granted with the command to the respondents-State to frame seniority list, as per the merit list obtained in the selection process and entire exercise for grant of promotion, be made, in terms of merit list read with the Rules, occupying the field, within a time frame. Their statements are taken on record.

6. The learned Advocate General has vehemently argued that so many persons will be affected by this judgment and order, who are not before this Court and prayed that the seniority list qua those persons, who are ranking below in the merit list be quashed.

7. It is beaten law of the land that the seniority list is to be drawn as per the merit obtained in the selection process and date of joining cannot determine the seniority.

8. The apex Court in case The Direct Recruit Class-II Engineering Officers’ Association and others vs. State of Maharashtra and others reported in AIR 1990 SC 1607, held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. It is apt to reproduce para 44-A of the said judgment herein:

“44.To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.”

9. The apex Court in Chairman, Puri Gramya Bank and another vs. Ananda Chandra Das and others reported in (1994) 6 SCC 301, held that seniority among direct recruits has to be determined on the basis of ranking secured in the selection, subject to reservation and roster rules, and not on the basis of the dates of joining duty. It is apt to reproduce relevant portion of para 2 of the judgment herein: “2…….. The respondent and others were selected by direct recruitment as managers of Rural Bank. His rank was No. 9 in the merit list. He was directed to be given seniority on the basis of the date of his reporting to duty. It is reported that the first respondent is dead. The only question in this case is that what shall be the ranking among the direct recruits? Is it the date on which they joined duty or according to the ranking given by the Selection Board? On comparative evaluation of the respective merits of the candidates for direct recruitment, the Board had prepared the merit list on the basis of the ranking secured at the time of the selection. It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. The view, therefore, is wrong. However, we need not interfere with the order, since the first respondent has died.”

10. The same principles of law have been laid down by the apex Court in case titled Bimlesh Tanwar vs. State of Haryana and others reported in AIR 2003 SC 2000. It is profitable to reproduce para 49 of the said judgment herein: “49.In this case also, although there does not exist any statutory rule but the practice of determining inter se seniority on the basis of the merit list has been evolved on interpretation of the Rules. A select list is prepared keeping in view the respective merit of the candidates. Not only appointments are required to be made on the basis of such merit list, seniority is also to be determined on that basis as it is expected that the candidates should be joining their respective posts almost at the same time. Yet again in Chairman, Puri Gramya Bank & Anr. vs. Ananda Chandra Das & Ors. [1994(6) SCC 301] this court held: "It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis."

11. The above principles of law have been followed by the apex Court in case titled Suresh Chandra Jha versus State of Bihar and others reported in (2007) 1 SCC 405.

12. Accordingly, the writ petitions are allowed. The Tentative Seniority List issued vide office order No.EDN-SLN-Elem.(E.III) Sty—1/ 2014-15925-32 and office order No. EDN-H (2) 7/2014-Pro-JBT-NM dated 21.10.2014, in both the writ petitions, so far it relate to private respondents and the persons who are ranking below in the merit list, is quashed and respondents are directed to issue fresh seniority list, strictly as per the merit obtained, in terms of the selection process and make the promotions, strictly, as per the Rules, occupying the field.

13. It goes without saying that promotions of the persons, who are ranking above in the merit, to the writ petitioners, be kept in tact and the cases of only those persons, who are ranking below in the merit list, be considered, afresh while making exercise for promotions alongwith the writ petitioners and other persons eligible for consideration. The entire exercise be done within two months from today.

14. Having said so, both the writ petitions are disposed of, as indicated hereinabove, alongwith pending applications, if any.

( Mansoor Ahmad Mir )

Chief Justice.

December 31, 2014.

(Tarlok Singh Chauhan) (cm Thakur)

Judge.