B.S. KOCHAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) Civil Writ Petitions 3523 and 3525 of 1988 can be conveniently disposed of together by one judgment as the petitioners in both the petitions belong to the same department and are governed by the same set of Rules and their grievance too is almost similar. The usual controversy in regard to seniority between the direct recruits and the promotees has engaged the attention of this Court in this set of two writ petitions.

(2.) The petitioners in Civil Writ Petition No. 3525 of 1988 joined the Haryana Public Works Department (Building & Roads Branch) as Junior Engineers in Class III Service. Petitioner No. 1 was promoted as Sub Divisional Engineer on 1.5.1973 whereas petitioner No. 2 was promoted on 12.6.1973 where they are presently working. The posts of Sub Divisional Engineers belong to Haryana Service of Engineers Class II P.W.D. (Building & Roads Branch) and are governed by the Punjab Service of Engineers Class II P.W.D. (Building & Roads Branch) Rules, 1965 (hereinafter called 'the rules'). The private respondents are direct recruits having been directly recruited to Class II Service prior to 1.1.1973, most of whom are working as Sub Divisional Engineers while some of them have been promoted as Executive Engineers. Recruitment to Class II Service for cadre and ex-cadre posts is made under Rule 6(1) from four different sources in a lot of forty vacancies. These sources are : (1) direct appointment, (2) promotion from the members of the Haryana P.W.D. (B & R) Sectional Officer (Engineering) Service, (3) promotion from draftsmen members of the Draftsmen and Tracers Service, and (4) promotion from members of the Haryana P.W.D. (B & R) Sectional Officer (Engineering) Service and Draftsmen and Tracers service possessing qualifications prescribed in Appendix B. It is the admitted case of the parties that the qualification prescribed in Appendix B relevant for our purpose in A.M.I.E./degree qualification. According to rule 6, there is a block of forty vacancies which in turn has five cycles of eight vacancies each. This Rule provides a rotational system according to which the 16th, 24th, 32nd and 40th post in a lot of every forty vacancies are meant for persons to be promoted from source No. (4). In case suitable candidatees are not available from source No. (4), vacancies shall be filled by direct recruits but if candidates are not available from source Nos. (1) and (3) and a person has to be appointed in the public interest as a stop-gap arrangement from other than the allotted sources, then such a person is liable to be reverted to his original cadre when a candidate from the allotted source becomes available and the period of service rendered by such person will not be reckoned for the purpose of seniority. In other words, if suitable candidates are not available for source No. (4) i.e. candidates possessing A.M.I.E./degree qualification, the vacancies are to be filled by direct recruits under rule 6(2) of the rules and in that event, the posts are occupied by the direct recruits in their own substantive right and the share/quota of A.M.I.E./degree holders automatically gets reduced or diverted accordingly. Rule 12 then determines the seniority in the Service. According to this Rule, except in the case of the officers appointed by transfer, the seniority of the members of the service is determined by the order of their appointment in service according to rules 6, 8 and 9 irrespective of their date of joining. The inter se seniority of the members of the service shall be in the order of recruitment provided under Rule 6. Rules 8 and 9 are only procedural and according to Rule 6 as and when the posts falling to the share of direct recruits or promotees become vacant, the said class of officers are to be absorbed against their own slots as and when those vacancies occur.

(3.) The petitioners who belong to source No. (4) claim seniority over the private respondents who were directly recruited to the service prior to 1.1.1973 on the ground that the posts which had fallen to their share in the third block of forty vacancies should be given to them, which according to them, are still vacant and since they have not got their due place in the third block of vacancies, their grievance is that the respondents have been wrongly shown as senior in the seniority lists prepared by the department (Annexures P2 and P5 with the writ petition). The respondents, on the other hand, have controverted the plea of the writ petitioners and their firm stand in the written statement is that the integrated seniority list includes 275 officers out of which 2 officers were taken on transfer. As per the distribution and allocation of vacancies under Rule 6 of the Rules, out of remaining 273 vacancies, 27 vacancies fell to the share of A.M.I.E./degree qualified Junior Engineers i.e. source No. (4). According to the respondents, 18 vacancies were filled up by the officers from source No. (4) and since eligible/suitable candidates were not available for the remaining 9 vancancies, the same were filled by direct recruits in terms of the provisions of Rule 6(2) of the Rules. The learned counsel for the petitioners was vehement in submitting that the stand of the repondents was incorrect and that I should look at the original record. It was almost conceded on behalf of the petitioners that if nine vacancies had been filled up by the direct recruits due to nonavailability of officers from source No. (4) then obviously the seniority assigned to the petitioners was correct since those posts got automatically diverted to the share of the direct recruits. I sent for the original records and looked into the same. It is clear from the record that nine posts were in fact filled by the direct recruits due to non-availability of A.M.I.E./degree holders who belonged to source No. (4). A certified copy of the roster has been placed on the record of C.W.P. No. 7773 of 1988 which is being disposed of separately. Post at roster point No. 81 in class II service was filled by one Shri Arjan Singh Parmar on 20-2-1970 who was a direct recruit due to non-availability of a candidate from source No. (4). Similarly posts at roster point Nos. 114, 122, 138, 146, 154, 162, 178 and 186 were filled up on different dates by direct recruits as A.M.I.E./degree holders from source No. (4) were again not available. Last of these appointments was made in the year 1971. In view of the factual position as is clear from the original record, I am unable to accept the contention on behalf of the petitioners that direct recruits had not been appointed under Rule 6(2) against the posts meant for A.M.I.E./degree holders due to their nonavailability. It must be said that the learned counsel challenge the authenticity of the original record saying that it was false and reconstructed but I do not find any reason to have any doubts in this regard.