GURBAX LAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) These two petitions have been filed by the members of the Ministerial Establishment of the Health Department. The petitioners have been listed together for hearing in pursuance of the orders of the Motion Bench. The controversy primarily relates to the determination of inter se seniority. The facts as alleged in Civil Writ Petition No. 4317 of 1980 may be briefly noticed.

(2.) The petitioners were appointed as Clerks in the offices of the Civil Surgeons on different dates from March 31, 1965 to October 30, 1969. While they were working as such, the State Government issued an order on April 28, 1975, regarding the provincialisation of the services of the Zila Parishad staff working in the offices of the Civil Surgeons. By this order, sanction of the Governor of Punjab was "accorded to the provicialisation of services of Zilla Parishad staff working in the offices of Civil Surgeons, Amritsar, Ferozepur, Gurdaspur, Jalandhar, Hoshiarpur and Ludhiana District..." Certain conditions were laid down. Resultantly, the services of respondents who were working under various health centres or in the offices of the Civil Surgeons were provincialised. On April 17, 1979, the Director of Health Services issued the revised provisional seniority list of the staff working in the various subordinate offices. In this order, it was mentioned that a provisional seniority list has been circulated vide office letter dated August 21, 1978. The representations which had been received in pursuance of the above circular had been considered. Certain corrections had been made in the list. In view of the integration of services of the staff working under the various Zila Parishads, the inter se seniority had been determined "on the basis of the date of joining service ----- in the equivalent ranks which they were holding on 28.4.75 ------." On this basis, the inter se 'seniority of clerks' was determined. The provisional seniority list was appended to this letter. The petitioners alleged that they submitted various representations against this list. Since the respondent did not take any action, they have filed the present petition with the grievance that the provicialisation of the services vide order dated April 28, 1975, was illegal. They further alleged that the action of the Director, Health Services, in determining the seniority list on the basis of the date of continuous appointment was contrary to the provisions of the Punjab Medical Department Subordinate Posts (Recruitment and Conditions of Service) Rules, 1945. Under rule 7, it has been provided that "the seniority in a post shall be determined by the date of confirmation in the post." The petitioners alleged that the criterion adopted by the Director is contrary to the statutory provisions contained in rule 7. It is further alleged that petitioners 1 and 2 having joined service prior to November 1, 1966, the action of the Director in prescribing a new criterion for determination of seniority was violative of section 82(6) of the Punjab Reorganisation Act, 1966, inasmuch as the prior approval of the Central Government had not been obtained. The petitioners consequently pray that the order of provincialisation dated April 28, 1975, a copy of which has been produced as Annexure P-5 and the seniority list circulated with the letter dated April 17, 1979 Annexure P-1 with the writ petition be quashed.

(3.) The respondents contest the petition. A short written statement has been filed on behalf of respondents 3 to 10. It has been pleaded by way of a preliminary objection that the order passed by the State Government on April 28, 1975, having been challenged by the petitioners in September, 1980, the relief should be declined on the short ground of delay. On merits it has been pointed out that petitioners 1 and 2 had been confirmed as clerks with effect from May 23, 1979. Similarly, respondents 3 to 8 and 10 had been confirmed with effect from promotion arch 2, 1979. Petitioners 3 and 4 and respondent 9 had not been confirmed. It has been further pointed out that respondent No. 9 being a member of the Scheduled Castes had been promoted to the next higher post against one of the posts reserved for the members of that class. In view of the fact that the respondents had been confirmed or promoted earlier to the dates on which petitioners 1 and 2 were confirmed, they have rightly been treated as senior to them. Still further, it has been pointed out that petitioners 3 and 4 being junior to petitioners 1 and 2, they can have no cause for grievance. Even the submission that the action is violative of section 82(6) of the Punjab Reorganisation Act, 1966, has been controverted. In other respects, the written statement filed on behalf of respondents 1 and 2 has been adopted by these respondents. In the written statement filed on behalf of respondents 1 and 2, it was inter alia pointed out that respondents 3 to 10 had been promoted to the posts of Assistants/Accountants with effect from the different dates on the basis of seniority-cum-merit. It was further pointed out that the inter se seniority had been determined in conformity with the rules. The association/Union of the Employees had represented against the seniority assigned to the provincialised staff. However, the action of the Government in granting benefit of the past service has been pointed out that the Punjab Government had ordered vide memo. dated November 21, 1979, that "the seniority of the Zila Parishad employees should be determined ----- on the basis of the their joining service in that office, as was decided by the Punjab Government memo. dated 6th/7th September, 1956 -----. It is further maintained that the Governor of Punjab "has approved the integration of seniority of Zila Parishad staff on provincialisation -----------". The respondents maintain that the orders for the provincialisation of services and determination of seniority are in conformity with the rules. Various documents have also been produced along with the written statement. These are the pleadings.