SANSAR CHAND Vs. STATE OF HARYANA

JUDGEMENT

(1.) The present case represents another example of a tug of war between direct recruits and promotees with regard to the principles that have to be followed regarding the fixation of seniority inter-se. The facts of the are are as under:

(2.) The petitioner-Shri Sansar Chand was recruited as an Architect, Class-I, through direct recruitment by the Haryana Public Service Commission in an open competition and was issued a letter of appointment dated 9.3.1976, Annexure P.1 to the petition. It has been averred in the petition that the services of the petitioner and similarly situated Architects were governed by the Haryana Service of Architects Class-I Rules, 1974 (hereinafter referred to as the 'Rules') and as per Rule 7 of the Rules, 67 per cent of the vacancies in the service were to be filled up by promotion from amongst the Assistant Architects and the remaining 33 per cent by direct recruitment. It has been averred that in the year 1975 a Screening Committee was constituted under Rule 10 of the Rules to adjudicate the capability of the Assistant Architects working in the Department of Architecture for promotion to the post of Architects. On June 20, 1975, the said Committee held its meeting and considered the names of nine officers including respondent Nos. 5 to 11 for promotion. Respondent Nos. 5 to 8 were found suitable for regular promotion against six promotion quota posts, whereas the names of respondent Nos. 9 to 11 were approved and put on the waiting list to be promoted whenever a vacancy occurred. A copy of the minutes of the Screening Committee has been appended as Annexure P2 to the petition. Pursuant to the said direction vide Annexures P.3 and P.4 respondent Nos. 5 to 11 who were earlier promoted provisionally on ad hoc basis to the post of Architects were given officiating appointment as Architects for a period of six months subject to the availability of the posts and in anticipation of approval of the Haryana Public Service Commission. It is now the conceded case that during the pendency of the writ petition, respondent Nos. 5 to 10 have retired and respondent No.11 Shri S.K. Midha is the only contesting respondent now. Meanwhile the petitioner believing himself to be senior to the respondents made a representation to the State Government requesting that his name be considered along with respondent Nos. 5 to 11 for promotion as Senior Architect, but respondent No.5 was promoted as Senior Architect on June 24, 1980 vide Annexure P.6. It appears that subsequently respondent Nos. 6 to 8 were also promoted as Senior Architects on September 5, 1980 and April 3, 1981, respectively. The petitioner was thereafter afforded a personal hearing by the State Government on November 2, 1981 to consider his representation with regard to the seniority over respondent Nos. 5 to 11 and after going into the matter, the same was rejected vide the impugned orders Annexures P.7 and P.8 whereby the petitioner was shown junior to respondent Nos. 5 to 14. Aggrieved thereby the present petition has been filed.

(3.) Notice of motion was issued to the State and various replies have been filed by the State Government as also by the private respondents. In the replies filed by the respondents, there has been a divergence of opinion with regard to the applicability of the rules which governed the service as the State Government has relied on the Draft Rules of 1972 which the other respondents have alleged that there were no rules applicable to the service as the Draft Rules were promulgated and became effective as the Haryana Services of Architects Class-I Rules, 1978 and as the petitioner and the private respondents had been inducted as Architects before that date, they could not be relied upon. In the reply filed by respondent No.11 the solitary contesting respondent, the stand taken is that he had been inducted as an Architect though on officiating basis on September 25, 1975, i.e. prior to the appointment of the petitioner and he had been confirmed in service vide Annexure RII/1, dated 3.6.1985. It has also been stated in the written statement that he was found suitable for promotion as Architect with effect from February 18, 1974, subject to the approval of the Haryana Public Service Commission which was received by the Government on July 21, 1977 and as such from his actual date of promotion i.e. February 18, 1974, he was entitled to claim seniority in the service from that date as the approval of the Haryana Public Service Commission would relate back thereto in terms of the judgment of this Court reported as Shri H.P. Sood vs. State of Punjab and others,1970 SLR 483and G.P. Doval vs. Chief Secretary, Government of U.P. and others, 1984 2 SLR 555. It has also been argued that in the absence of Rules, total length of service was to be kept in view in defining seniority and he was entitled to seniority over the petitioner.