JOGINDER PAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The dispute herein is of inter-se seniority between petitioner Joginder Pal and respondent No. 3-Paras Ram. In wake of petitioner's request to declare him senior to respondent No. 3, he prays for a writ in the nature of certiorari so as to quash order dated December 6, 1993 (Annexure P.12) whereby respondent No. 3 was assigned seniority w.e.f. April 5, 1969 as also order dated May 3, 1996 (Annexure P.16) vide which the said respondent has been promoted as Assistant w.e.f. December 12, 1974 and further promoted as Superintendent Grade II w.e.f. November 8, 1990 as also the order reverting him from the post of Superintendent Grade-II to that of Senior Assistant. The reliefs asked for, as have been detailed above, stem from the facts which need a necessary mention.

(2.) Petitioner was initially appointed as Clerk on June 2, 1969 through Services Selection Board, Punjab. He was thereafter promoted to the post of Head Clerk (equivalent to the post of Assistant) on December 12, 1974 and further as Superintendent Grade-II vide orders dated November 8, 1990. Respondent No. 3 was initially appointed as clerk on ad hoc basis in the office of the Employment Exchange, Ludhiana. His services were terminated on August 23, 1968, on joining of regular incumbent. Thereafter, he was appointed purely on temporary basis for a period of three months in the office of the Co-operative Consumer Stores, Ludhiana. A copy of apointment letter dated September 18, 1968 has been placed and argued by learned counsel for the petitioner that appointment of respondent No. 3 was made by the Senior Auditor of Co-operative Consumer Stores, Ludhiana. He was appointed on a class III post i.e. of clerk which appointment could be made only by the Chief Auditor. The services of the petitioner as also respondent No. 3 are governed by the Rules known as the Punjab Co-operative Audit Department (Ministerial) Class III Service Rules, 1972 (hereinafter to be called the Rules of 1972). Rule 5 and 10(F) dealing with appointing authority and qualifications and mode of recruitment read as follows :-

(3.) The services of respondent No. 3 were, however, extended by the Chief Auditor vide orders dated April 5, 1969. He was thereafter promoted as Assistant w.e.f. December 26, 1989 but he preferred to forego his promotion as his family was settled in Ludhiana and he did not want to disturb his family from there. A copy of the promotion order dated December 26, 1989 and request made by respondent No. 3 whereby he had foregone his promotion, have been placed on records as Annexures P.3 and P.4. Initial seniority list of Clerks was circulated on April 4, 1979 as stood on February 28, 1974. Whereas petitioner was assigned seniority at Sr. No. 32, respondent No. 3 figured at Sr. No. 41, in the said seniority list. It was mentioned in the seniority list that was circulated amongst the employees that they could send representation, if any, within a period of fortnight. Respondent No. 3 did file his representation on July 23, 1974 wherein he claimed seniority over and above the petitioner and some others. His representation was, however, rejected vide orders dated August 28, 1975. Aggrieved, respondent No. 3 filed an appeal before the Secretary to Government, Department of Cooperation which too, after consideration, was rejected vide orders dated April, 6, 1979. Respondent No. 3 thereafter never challenged the order rendered in appeal preferred by him anywhere. Another seniority list of Clerks was issued on August 8, 1983 as it stood on September 30, 1982. Whereas, petitioner was shown at Sr. No. 22, respondent No. 3 was shown at Sr. No. 29 in the said seniority list. Once again, the Clerks figuring in the seniority list, referred to above, were asked to file representation, if any, within 15 days. It is the case of the petitioner that respondent No. 3 did file his objections but vide order dated September 30, 1983 his representation was accepted to a limited extent as against his name in the seniority list, word 'SC' was added. Based upon orders dated September 30, 1983 vide which representation of respondent No. 3 was accepted, he filed civil writ petition No. 296 of 1992 in this Court praying for issuance of writ in the nature of mandamus directing the respondents, in the said writ, to grant him promotion, arrears of pay and other consequential benefits w.e.f. the date persons junior to him were promoted and for counting his ad hoc service towards seniority. The said writ was opposed by the respondents and number of preliminary objections were raised. The matter came up for hearing on November 1, 1993 when following order was passed:-