MADAN GOPAL GARG Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This appeal involves the question regarding inter se seniority of promotees and direct recruits. The posts in question are of District Food and Supplies Controller (for short 'controller') and the Deputy Director, Food and Supplies (for short 'deputy Director') in the State of Punjab, governed by the Punjab Food and Supplies Department (State Service Cass II) Rules, 1966 (hereinafter referred to as the Rules). Rule 6 (l) (g) of the Rules provides for appointment on the post of Controller - (/) by promotion of District Food and Supplies Officer or Superintendent in the Department, (ii) by transfer of Administrative Officer, Food and Supplies, and (iii) by direct appointment. It further provides that 33% vacancies shall be filled by direct appointment. The appointment for the post of Deputy Director is governed by Rule 6 (l) (a) The said appointment is made (i) by promotion of the Assistant Director, food and Supplies/district Food and Supplies Controllers/administrative Officer or officer on Special Duty, (ii) by promotion Of Accounts Officer. Food and Supplies or Assistant Controller of end Accounts, and (iii by transfer of an officer already in the service government of India or of a State government. Seniority is governed by Rule 10 which prescribes that for the purpose of seniority service shall be dividend into four groups. One of those group is that of Deputy Directors and District organizers, Food and Supplies and another group is of Assistant Directors, Foodand Supplies and Controllers. As per sub-rule (2 of Rule 10 the seniority inter se of members of each group has to be determined by the dates of their continuous appointments in the service

(2.) The appellant and Respondent 3 are promotees having been first promoted as Controller and later as Deputy Director. The appellant was promoted as Controller by order dated 21/4/1973 while Respondent 3 was so promoted by order dated 17/8/1972. Subsequently, the promotion of the appellant to the post of Controller was made effective from 6/12/1972. The appellant was promoted as Deputy Director by order dated 29/12/1981/1/1/19822 while Respondent 3 was so promoted by an order dated 17/2/1981. Respondent 2 was directly appointed as Controller after being selected by the State public service commission, by order dated 9/4/1974. He was promoted as Deputy Director by order dated 10/11/1982. The tentative seniority list of Controllers was circulated by memo dated 6/1/1981 wherein Respondent 2 (placed at SI. No. 44 was shown as junior to the appellant (placed at SI. No. 35 and Respondent 3 (placed at SI. No. 33. Subsequently, in view of the decision of the division bench of the High court of Punjab and Haryana in S. B. S. Virk v. J. S. Bagga the said seniority was revised vide memo dated 7-3-1983 and Respondent 2 was placed at SI. No. 34 while Respondent 3 and the appellant were placed at SI. Nos. 35 and 37 respectively and Respondent 2 was thus shown as senior to the appellant and Respondent 3. By order dated 22/9/1983 Respondent 2 was appointed as Joint Director, Food and Supplies. Feeling aggrieved by the aforesaid revision of their seniority in the cadre of Controllers and appointment of Respondent 2 as Joint Director, the appellant and Respondent 3 filed a writ petition (Civil Writ Petition No. 4495 of 1983 in the High court of Punjab and Haryana wherein they sought a declaration that they are senior to Respondent 2 as Deputy Directors and prayed for quashing of the order dated 22/9/1983 appointing Respondent 2 as Joint Director. The said writ petition was contested by Respondents 1 and 2. The said writ petition was allowed by a learned Single Judge of the High court by judgment dated 2/8/19833. It was held that the factual averment of the writ petitioners, namely the appellant and Respondent 3, that they had been appointed as Controllers within the quota meant for promotees had not been controverted by the respondents and it was also not disputed that they were so appointed earlier to the recruitment of Respondent 2 on the post of Controller and that they were appointed earlier than Respondent 2 as Deputy Director and, therefore, they were senior to Respondent 2 both in the cadre of Controllers as well as Deputy Directors. The learned Single Judge, therefore, held that the appointment of Respondent 2 as Joint Director which was made solely on the basis of higher seniority in the cadre of Controllers/assistant Director and Deputy Directors was invalid. The order dated 23-0-1983 regarding appointment of Respondent 2 as Joint Director was therefore, set aside. Respondent 2 filed an appeal (Letters Patent Appeal No. 958 of 1985 against the said judgment of the learned Single Judge. The said appeal was allowed by a division bench of the High court by the impugned judgment dated 6/8/1986. Before the division bench of the High court the following two questions were agitated;

(3.) While considering the first question regarding the promotion of the writ petitioners being made within their quota, the division bench of the High court found that the pleadings on this aspect of the case were not clear and were not happily worded and, therefore, the High court by order dated 7/1/1976 directed the learned Advocate General to obtain an affidavit from the secretary/additional secretary/deputy secretary in the Food and Supplies Department specifically mentioning as to whether the writ petitioners were holding the posts within the quota of promotees or not. It was also directed that the officer concerned should give the details of the strength of the cadre and of promotions and direct appointments made from 1966 to 1974. In compliance with the said order, the affidavit dated 17/1/1986 of Shri C. L. Bains, Special secretary to government of Punjab in the Department of Food and Supplies was filed wherein it was stated that the writ petitioners were not holding the post of Controller/assistant Director/additional District Food and Supplies Controller, within the quota of promotees and, in fact, at the time of their promotion, there was no post available in promotees' quota and that they were promoted against posts meant for direct recruits and temporary vacancies caused on account of proceeding on foreign service by certain officers. In the said affidavit it was stated that during the years 1966 to 1968, the cadre strength of the Controllers/assistant Directors/additional District Food and Supplies Controllers was 13 which was raised to 15 from the year 1968-69 and to 16 in 1969-70 and to 21 in 1970-71 and that the cadre strength continued to be 21 till 31/3/1974. It was also stated that three officers were on foreign service and there was one leave vacancy and that against the cadre strength of 21 posts, 25 persons were holding the posts of Controller/assistant Director/additional District Food and Supplies Controller in March 1974 out of which only two were direct recruits, it was further stated that a requisition for making direct recruitment was sent to the public service commission in June 1972, and at that time the writ petitioners were holding the lower cadre posts of District Food and Supplies Officers. Along with the said affidavit a statement containing details of promotions of Controllers/assistant Directors/additional District Food and Supplies Controllers from 1966 to 31/3/1974 was filed as Annx. R/2 and a statement containing details of officers holding the posts of Controllers/ Assistant Directors/additional District Food and Supplies Controllers in March 1974 was filed as Annx. R/3, Rejoinder to the said affidavit of Shri Bains Were filed by the appellant but the High court found that he had not given any material to show that the factual picture given in the affidavit of Shri Bains was. in any way, distorted. The High court, therefore, accepted the averments made in the affidavit of Shri Bains.