SATISH KUMAR Vs. STATE OF HARYANA AND OTHERS

JUDGEMENT

(1.) THE petitioner has approached this Court impugning the orders dated 28.2.2007 and 12.4.2007, whereby respondent No. 3 has been absorbed as Mandi Supervisor -cum -Fee Collector with retrospective effect, from 30.8.1989 and his seniority has been fixed at Sr. No. 315 -A. Order dated 31.7.2007, whereby he is deemed to have been promoted to the post of Accountant w.e.f. 23.2.1996, Assistant Secretary w.e.f. 31.3.1999 and Executive Officer -cum -Secretary w.e.f. 31.8.2004, has also been challenged. Learned counsel for the petitioner submitted that respondent No. 3 was earlier working as Store Keeper with Haryana Tanneries Ltd. The aforesaid company was wound up. On closure, all the employees were retrenched. The case of respondent No. 3 was recommended for appointment in Haryana State Agricultural Marketing Board (for short, 'the Board') as Head Clerk/Accountant on 7.3.1989. It was specifically mentioned in the letter of recommendation that no surplus employee was available for appointment to the post of Mandi Supervisor. Respondent No. 3 was interviewed on 10.8.1989. He was issued appointment letter as Clerk -cum - Typist on 29.8.1989 specifically mentioning therein that it was a direct appointment. Without any protest, respondent No. 3 joined the service on 30.8.1989. He made a representation on 1.6.1990 for protection of the pay drawn while working in Haryana Tanneries Limited. The same was rejected on 7.12.1990. Subsequent representation for the purpose was also rejected on 5.12.1994. Thereafter, respondent No. 3 filed a suit for claiming protection of his pay drawn while working with Haryana Tanneries Limited, which was decreed on 23.12.2000. The appeal filed by the Board was accepted on 18.3.2003. RSA No. 1857 of 2003 filed by respondent No. 3 against the aforesaid judgment of the learned lower appellate court is admitted and pending in this Court.

(2.) LEARNED counsel for the petitioner further submitted mat respondent No. 3 was promoted to the post of Mandi Supervisor -cum -Fee Collector vide order dated 3.5.2002 as per his seniority. Prior thereto, the petitioner was appointed as Mandi Supervisor -cum -Fee Collector on 17.11.2000, hence, was senior to respondent No. 3 on the post. On 25.4.2005, respondent No. 3 addressed a representation to the Chief Administrator of the Board, however, the same was apparently presented to Hon'ble the Chief Minister. A note was put up by the Principal Secretary to the Chief Minister on 23.5.2005 that facts of the case be put to him at the earliest. In the aforesaid representation, the petitioner claimed that he deserved to be appointed as Accountant in the Board from the date of his initial appointment as was given to one of his juniors. Vide communication dated 28.2.2007, the Financial Commissioner and Principal Secretary to Government Haryana, Agriculture Department, directed the Chief Administrator of the Board that respondent No. 3 should be re -designated as Mandi Supervisor or Sub Divisional Clerk from the date of his absorption in the Board, as was already intimated vide communication dated 11.3.2005. As a consequence thereof, vide order dated 12.4.2007, respondent No. 3 was absorbed as Mandi Supervisor -cum -Fee Collector w.e.f. 30.8.1989. His seniority as Mandi Supervisor was fixed at Sr. No. 315 -A between Chattar Pal and Smt. Veer Lata Jain, who were finding place at Sr. Nos. 315 and 316 respectively. The aforesaid order was passed in terms of the advice of the government vide communication dated 28.2.2007. Subsequent thereto, on 31.7.2007, respondent No. 3 was given deemed promotion from the post of Mandi Supervisor -cum -Fee Collector to the post of Accountant w.e.f. 23.2.1996, Assistant Secretary w.e.f. 31.3.1999 and Executive Officer -cum - Secretary w.e.f. 31.8.2004, as a result of which respondent No. 3 ranked senior to the petitioner. The petitioner came to know about the orders passed by the Board changing designation of respondent No. 3 retrospectively and also granting him promotions only when the provisional seniority list of Mandi Supervisor -cum -Fee Collector was circulated on 3.9.2009, where though respondent No. 3 was shown at Sr. No. 136 as against the petitioner at Sr. No. 104, but in column No. 8, it was mentioned that respondent No. 3 is promoted as Secretary. Thereafter, the petitioner made a representation to the official respondents on 5.3.2010, however, the same was not responded to.

(3.) IT was further submitted that as per the letter of recommendation for appointment issued by the office of the Chief Secretary to the Government of Haryana to the Board, the case of respondent No. 3 was not recommended for appointment as Mandi Supervisor -cum -Fee Collector, as it was mentioned therein that there was no surplus employee available for appointment on the aforesaid post. His case was recommended for the post of Head Clerk/Accountant. In fact, respondent No. 3 was not even eligible for appointment on the post of Mandi Supervisor -cum -Fee Collector as Haryana State Agricultural Marketing Board Service Rules, 1974 (for short, 'the Rules') required minimum qualification as Graduate with knowledge of the Punjab Agricultural Produce Markets Act, 1961 (for short, 'the Act') and the Rules. Though respondent No. 3 was interviewed before his appointment in the Board, but that was for the post of Clerk -cum -Typist. As his knowledge of the Act and the Rules was not tested, hence, to appoint respondent No. 3 on that post retrospectively is totally illegal.