KAILASH WASUDEVA Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner joined P.C.M.S. Class II Service in the Erstwhile State of Punjab on 30th January, 1960. With the reorganisation of the then State of Punjab, she was allocated to the present State of Haryana on 1st November, 1966. She was deputed to serve in the Health Department of Union Territory, Chandigarh, in 1973. While she was on deputation with the Union Territory, Chandigarh, the petitioner was promoted to H.C.M.S. Class-I on ad hoc basis with effect from 8th November, 1976, upto 30th November, 1976, and thereafter with effect from 1st December, 1976, she was promoted to H.C.M.S.Class I on regular basis, by order date 8th November, 1976. Since then she has been continuing in H.C.M.S. Class I, but for the purpose of seniority and other conditions of services, she is not being treated as having been promoted on regular basis with effect from 1st December, 1976. The representation made by the petitioner for the redressal of her grievance did not bring the desired result which necessitated the filing of the present writ petition. Since it was a dispute with regard to determination of inter se seniority between the petitioner vis-a-vis her other colleagues in the Health Department, a number of person got themselves impleaded as additional respondents.

(2.) Written statements have been filed separately by the Secretary to Government, Haryana, Health Department, and the Director, Health Services, Haryana, on the one hand, and the newly added respondents on the other. In the written statements, factual position has almost been admitted and the only ground on which the claim of the petitioner is disputed is that the petitioner should suffer by way of depression in seniority as she had been on deputation with the Union Territory, Chandigarh. According to the respondents, as the petitioner joined from deputation at Ambala on 16th February, 1980, her seniority was to be counted from the date she joined at Ambala. The respondents have further pleaded that in the order of promotion of H.C.M.S. Class I, it had been specifically provided that her seniority would be fixed from the date of her joining duty. According to the respondents, since the petitioner had claimed proforma promotion (in absentia), her juniors became senior to her in H.C.M.S. Class I as they were appointed in the State of Haryana in 1978 while the petitioner was still on deputation with the Union Territory, Chandigarh.

(3.) After hearing the learned counsel for the parties and having gone through the pleadings, I am of the considered view that the plea taken by the respondents is wholly untenable in law and the petitioner cannot be non-suited her right to have her seniority determined in H.C.M.S. Class I according to the rules, could not be taken away. The petitioner was on deputation with the Union Territory, Chandigarh and at no point of time she was recalled from deputation. On the other hand, when the petitioner's request for being granted proforma promotion was not acceded to by the respondents, she joined her place of posting at Ambala. But in the absence of any specific order of recall from deputation, she could not be deprived of her right to claim seniority in H.C.M.S. Class I and Class II which was to flow to her automatically under the service rules. An argument in despair has also been raised by the respondents that some petition involving question of fixation of seniority between direct recruits and promotees was already pending before the Hon'ble Supreme Court. But the dependency of that litigation has nothing to do with the present case in which the short point for adjudication is as to whether seniority of the petitioner was to be determined keeping in view that date of her promotion as 1st December, 1976, from which date she had been promoted on regular basis by order dated 8th November, 1976, as her promotion on ad hoc basis was only upto 30th November, 1976 or not. The newly added respondent Nos. 3 to 17 having been appointed to H.C.M.S. Class I subsequent to 1st December, 1976, that is, on 24th January 1978, are obviously to be placed below her in the seniority list and must rank junior to her. It is all the more necessary as all the direct recruits have been assigned places in the seniority list below one Dr. Radha Krishan Sharma, who in turn was junior to the petitioner. Therefore, as a necessary consequence it will follow that had the petitioner not been sent on deputation from the State of Haryana to the Union Territory, Chandigarh, she would have continued to retain the higher seniority position than her junior Dr. Radha Krishan Sharma, who remained in the State of Haryana, and has been assigned higher seniority position above the direct recruits. Therefore, the petitioner's date of promotion to H.C.M.S. Class I on regular basis being 1st December, 1976, and the direct recruits having been appointed on 24th January, 1978, the petitioner must rank senior to them. She could not be made to suffer only because she had been on deputation from the Health Department of the State of Haryana to the Union Territory, Chandigarh. The view finds support from the law laid down by Hon'ble the Supreme Court in State of Mysore v. M.H. Bellary, 1965 AIR(SC) 868 followed by the Division Bench judgment of this Court in Ram Lal Aggarwal, Retd. District and Sessions Judge v. The State of Punjab, etc., 1968 SLR 800