Tejinder Singh Sandhu v. State of Punjab and Ors.

CHANDRACHUD, C.J.-The appellant, Tejinder Singh Sandhu, and respondents 2 and 3 were serving initially as Class III Officers but were recruited directly as Class II Officers in the erstwhile State of Patiala and th~ East Punjab States' Union, ('Pepsu'). After the reorganisa-tion of Punjab and Pepsu, they were absorbed in the Punjab Agri-cultural Service, Class II. In the seniority list of Class II Officers, respondent 2 was shown at serial No. 30, respondent 3 at serial No. 39 and the appellant at serial No. 40. On August 2, 1965, appellant and respondent 3 were promoted on an ad-hoc basis as Deputy Direc-to"s of Agriculture, a post borne on the cadre of Class I Service. The appellant took charge of that post on August 4, 1965 while respon-dent 3 took charge fourteen days later on August 18, 1965. The ad-hoc promotions were made for a period of three months or until s:ich time as the appointments could be made on a regular basis.

Rfspondent 2 was working at the material time in the Punjab Agri-cultural University, Ludhiana. The Government of Punjab having ">"--<;_ taken a decision in October, 1966 to allow its officers who were work-

ing on deputation with the Ludhiana Agricultural University to re.join tho State Service, respondent 2 returned to the parent Department on October 28, 1966. He was promoted as Deputy Director of Agricul-ture, Class I, on February 22, 1967 on the same basis as the appellant and respondent 3.

The appellant completed his probation on August 3, 1967 while respondents 2 and 3 completed theirs on February 21, 1969 '.rn<l March I, 1968, respectively. On October 14, 1971, the Governmeut of Puajab published a tentative seniority list of Class -I Officers in which the appellant was shown as junior to respondents 2 and 3. Acting on the basis of the seniority list, the State Government promoted respondent 2 to the post of Joint Director of Agriculture on July 10, 1973 and respondent 3 on July 16, 1973. The appellant had filed a rerresentation on the publication of the seniority list complaining that since he had officiated continuously in the Class I post for a longer period than respondents 2 and 3 and had completed his probation before they had completed theirs, he should have been treated ai senior to the other two and was entitled to be promoted as Joint Director in pre'.erence to them. It was implicit in the promotion of n~spondents 2 and 3 to the post of Joint Director that the appellant's representation was rejected by the Government. w

On August 16, 1973 the appellant filed a Writ Petition in the High Court of Punjab and Haryana contending that the promotion of respoudents 2 and 3 to the post of Joint Director was illegal being ---.... violative of article 16 of the Constitution and Jcmanding that in re-cogniti011 of his superior claim arising by virtue of seniority he should be promoted and confirmed in the post of Joint Director. By its judgment dated May 31, 1974, the High Court dismissed the Writ Petition but granted to the appellant a certificate of fitness to appeal to this Court under article 133(1) of the Constitution.

The 1:arrow question for decision is whether the appellant is entitl-ed to be regarded as senior to respondents 2 and 3 by virtue of his contin;.ious officiation in the Class I post and because he had completed his probation in that post before respondents 2 and 3 completed theirs. Certain facts bearing on this qu~stion are undisputed. Appel-lant and respondents 2 and 3 originally belonged to Class III Service of the Pepsu State. They were later appointed by direct recruitment as Closs II Officers in the Agriculture Department of the State with effect from September 24, 1956, July 13, 1956 and May I, 1956, res-pectively. It is, therefore, clear and no! disputed that in the cadre of Clas> II Officers in the Pepsu Agriculture Department, appellant was junior to respondents 2 and 3. After the merger of Pepsu with Punjab they were all absorbed in Class II Service of the Punjab Agriculture Department. Appellant and respondent 3 were later pro-moted to Class I Service of the Punjab Government on the same dato. that is to say, on August 2, 1965. On the date of promotion, appellant happened to be working at Chandigarh itself and was there-fore abk to take charge of his new post imll!ediately after the date of his arpointment viz., August 4, 1965. Respondent 31 on the other hand, v.as working as an Assistant Horticulturist at Kulu and there-fore, he could not take charge of his post nntil he was relieved of the post which he was holding. He was able to take over as Deputy Director at Hansi on August 18, 1965, which was 14 days after the appf.llan~ had taken charge of his post. Respondent 2 was promGted as a Deputy Director in 1966 but, (hat was fer the reason that he was working on deputation with the Ludhiana Agricultural University and until the Government permitted its officers working on deputation with the University to revert to the State Service, respondent 2, though eligihle for being appointed as a Deputy Director, could not be so ~ppoi:1tcd. Thus the .circumstance that the appellant and respondent< 2 and J took charge of their respective posts in Class I Service on divergent dates is pnrely fortuitous and cannot affect their seniority.

All the three were appointed as Class I Officers on a purely ad-hoc basi~.. The p_ermanent vacancies in that cadre occurred in 1971 and it is in reference to the State of affairs ·obtaining at that point of time that the question of seniority of the three officers has to be considered-On the date on which permanent vacancies occurred in the Class l cadre, the appellant and respondents 2 and 3 had all completed their proba-tionary period satisfactorily. They were, therefore, eligible and ::ier-haps e11titled to be confirmed in Class I posts. But that confirmation had to be made in the order in which they ranked in seniority in their Class II posts. We have no doubt that since all of them were appoint-ed to Class I on an ad hoc basis and since they had all completed their probation in Class I posts when permanent vacancies occurred in that cadre, their seniority in Class II has to prevail in their ranking in C\ ..___,., Class I. By that criterion, there can be no doubt that that the appel-

lan~ must take his place below respondents 2 and 3.

Learned counsel appearing on behalf of the appellant contends that scn10rity of officers promoted to Class I from the Class II cadre must be determined according to the dates of their continuous officia-tion in Class I posts and according to the dates on which they com-ple:ed foeir probationary period. It is urged that by the application of this dual test, the appellant would rank higher in seniority over respondents 2 and 3. By reason of the circumstances which we have earlier mentioned, there is no substance in this contention. The appellant was junior to respon_dents 2 and 3 in Class III as well as in Class II Service of the Pepsu State. He was also junior to them in Class II Service of the Punjab Government, after reorganisation of the States. Having been appointed to the higher post on the same date as respondent 3 and on an ad-hoc basis, the appellant cannot be per-mitted to take advantage of a chancy circumstance that being geogra-phically close to the headquarters he was able to take charge of the post oi promotion on the very date on which he was appointed, an opportunity which a quirk of posting denied to respondent 3. The Jailer, being at Kulu, had to be relieved of his post there an<l the proverbial red-tapism intervened to disahk him from taking charge of his Class I post until fourteen days later. In so far as respondent 2 is concerned, he had to await the decision of the Government that those on deputation to the Ludhiana Agricultural University may re-turn to their parent departments. It is not disputed that if in August 1965, respondent 2 was not working on deputation, he would have been promoted along with the appellant and respondent 3 to Class I. In fact it is important that in Class I, there were only two vacancies in August 1965 and if respondent 2 were available for being posted as a Deputy Director, it is he and respondent 3 who would have filled the two vacancies. The appellant being junior to them would not have been appointed as a Deputy Director even on an ad-hoc basis.

Learned counsel for the appellant placed heavy reliance on the State Government's instructions regarding fixation of seniority contained in Government Memo No. 9448-Agr. 1(1)65/1583 dated April 13, 1966, in support of his argument that the appellant must rank higher in seniority than respondents 2 and 3. The Memorandum has no application because it refers to 'temporary officers' appointed to the Punjab Agricultural Service, Class I and Class II. In case of temporary officers promoted to Class I and Class II posts, seniority may have to be determined under the particular Government Memo-randuu1 with reference to the dates of continuous appointment iu the respective cadres. But the appellant and respondents 2 and 3 were working in a permanent capacity when they were proinoted to Class I. What governs the seniority of the appellant is not the Memoran-dum on which he relies but the rules contained in the Punjab Agri-cultural Service, Class I, Rules, 1947. If regard is had to rules 10 and 16 of the aforesaid Rules, there cannot be any doubt that the appellant must rank lower in seniority than respondents 2 and 3. Rule 16 pro-vides that seniority of members of the Service shall be determined according to the date of confirmation in the Service. The exact dates of confirmation of the officers concerned are not on the record but it is clear that by reason of the circumstances adverted to before, appel-lant's confirmation has to be postponed to that of respondents 2 and 3.

\Ve are, therefore, of the opinion that the High Court is right in taking the view that respondents 2 and 3 were entitled to be appointed as Joint Directors of Agriculture in preference to the appellant on the basis of their seniority. Accordingly we confirm the judgment of the High Court and dismiss the appeal. The appellant shall pay the costs of respandents 2 and 3 in one set. There will be no order as to costs of respondent l, the State of Punjab, or of ~espond~nts 4 and 5.