GURNAM SINGH Vs. FINANCIAL COMMISSIONER, REVENUE, PUNJAB

JUDGEMENT

(1.) All these petitions involve determination of an identical issue relating to the interpretation of the circular dated 21.7.1978 and, therefore, these petitions are being decided by a common order.

(2.) Petitioner-Gurnam Singh joined service on appointment as clerk in the Consoiidation Department, Punjab, on 6.11.1958. This appointment was given to him on' the basis of selection made by the Subordinate Services Selection Board. He was confirmed as clerk in the Consolidation Department on 14.4.1969. As a result of the policy decision taken by the Government of Punjab to wind up the Consolidation Department, the employees of that Department including petitioner Gurnam Singh were rendered surplus. He was absorbed in the office of the Commissioner, Jalandhar Division, Jalandhar with effect from 23.12.1971. After about two years, the respondent No. 2 took a decision to send the petitioner back to the Consolidation Department but on 29.8.1973 the Government finally decided that the petitioner should be absorbed in the Commissioner's office in terms of the policy decision of the Government. Subsequent to his absorption in the Commissioner's office, a circular dated 3.9.1973 was issued by the Commissioner, Jalandhar Division and objections were invited from the aggrieved persons against the placement of petitioner at Sr. No. 29 in the seniority list. The petitioner submitted his representation dated 27.9.1973. While the Issue of seniority was still in fluid, the Government issued instructions dated 21.7.1978 (Annexure P4) and issued further directions on 15.9.1978 (Annexure P5) for determination of the seniority in accordance with para (iii) of instructions Annexure P4. A dispute was raised regarding applicability of the instructions in the face of provisions contained in service rules but vide letter dated 3.2.1979 (Annexure P8), the Government clarified th; it the instructions were supplemental to the strvice rules and not inconsistent therewith. Consequently, the seniority of the petitioner was changed from Sr. No. 29 to S.No. 6 and he was given promotion to the post of Assistant on 20.7.1979. Respondent No. 3 filed an appeal before the Financial Commissioner against the assignment of seniority to the petitioner by pleading that the petitioner cannot be assigned seniority from the date earlier his absorption in the Commissioner's office in view of the mandatory provisions contained in Punjab Commissioners Subordinate Service Rules, 1941 which were superseded by the Punjab Commissioners' Offices (State Service Class III) Rules, 1976. The petitioner contested the appeal filed by respondent No. 3 and after hearing the parties, the Financial Commissioner (Revenue) Punjab passed the impugned order Annexure P9 dated 19.5.1980 and set aside the order assigning seniority to the petitioner at Sr. No. 6. The petitioner has challenged this order on the ground that the Financial Commissioner (Revenue) had no jurisdiction to entertain and decide the appeal against the order passed by the Commissioner, lalandhar Division, Jalandhar assigning him seniority as per the instructions issued by the Government of Punjab on 21.7.1978. The petitioner has contended that the impugned order passed by the Financial Commissioner is without jurisdiction apart from being arbitrary and unreasonable, igb acri unoiibsq

(3.) In their reply, respondents 1 and 2 have pleaded that vide Government Memo dated 6.10.1969 a decision was taken not to fill any vacancy in the clerical cadre from Clerk to Superintendent but against one temporary post lying vacant the petitioner was allowed to join with effect from 23.12.1971. Subsequently the petitioner was ordered to be sent to the Consolidation Department but on the instructions of the Government he was retained in Commissioner's office. Regarding the seniority list, the respondents have stated that the order passed by the Commissioner assigning seniority No. 6 to the petitioner was reversed by the Financial Commissioner (Revenue) who was competent to do so being a higher authority. According to the respondents, the order of the Financial Commissioner is fully justified in view of the provisions contained in the Rules of 1976 and the instructions issued by the Government on 21.7.1978 could not operate in the field which was already occupied by the statutory rules. A similar reply has been filed by respondent No. 3 who has pleaded that the very absorption of the petitioner in the Commissioner's office was illegal. According to respondent No. 3, the instructions issued on 3.4.1961 for absorption of the surplus staff of the Consolidation Department had been quashed by the High Court in C.W.P. Nos. 1778 and 1963 of 1966 and in view of the judgment of the High Court, the instructions issued by the Government on 21.7.1978 could not be relied upon by the petitioner for the purpose of assigning seniority to him. Reliance has also been placed on the order passed by this Court in C.W.P. No. 5054 of 1975 (Ujagar Singh vs. Punjab State etc.) in which the Commissioner, Jalandhar Division had justified the seniority list issued earlier by him and in which the petitioner had been placed at Sr. No. 29. In substuance, the, case of respondent No. 3 is that the petitioner could at the best be considered to be, an employee of the Commissioner's office with effect from 6.10.1969 the date on; which the new vacancy had become available. According to respondent No. 3, the Government suo moto issued circular dated 6.10.1969 withdrawing instructions. dated 3.4.1961 regarding absorption of the employees and, therefore, the petitioner is not entitled to claim benefit of total length of service for the purpose of determination of seniority.