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                 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3401 OF 2009 (Arising out of SLP(C) No. 18279 of 2008)

State of Haryana & Ors.                                                       ……….Appellant

Versus

Rameshwar Dass                                                                  ……..Respondent

JUDGMENT  

H.L. Dattu,J.  

Leave granted.

1)This is an appeal by Special Leave against the judgment and order of  

the Chandigarh High Court dated 28.8.2007 which arises in the following  

circumstances.  On 27.6.1984,  Rameshwar  Dass,  respondent  before  us,  

was appointed on the post of Fitter Coolie and subsequently his services  

were  regularized  on 1.4.1993.  Meanwhile  three  other  employees were  

appointed namely, Tej Pal, Rajinder Kumar and Dharmapal on 5.7.1984,  

19.11.1984  and  20.11.1984  respectively,  and  were  promoted  on  

26.3.1987 to the post of Water Pump Operator Grade-II and regularized  

on 1.4.1993.

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2)The respondent went before the Trial Court with the principal plea, that,  

he is entitled to be promoted to the post of Water Pump Operator (WPO)  

Grade-II from the date when his juniors were promoted to the same post  

and for other consequential reliefs. The claim was opposed by the State  

of Haryana, stating that the respondent has no locus standi for filing the  

suit as there is no cause of action and also it is barred by limitation. It  

was also alleged that the co-employees of the respondent, who have been  

promoted, were appointed in different circles and did not belong to the  

Karnal Circle, where the respondent is continuing his service. Trial Court  

recorded  that  the  appellants  did  not  produce  any  seniority  list  being  

maintained at Divisional Level or Circle Level which could show that Tej  

Pal, who was appointed just after the respondent, was not junior to the  

respondent on the day when he was promoted as WPO on 26.3.1987.  

Similarly is the case with other employees named Dharam Pal who was  

appointed  on  20.11.1984  and  Rajinder  Kumar  who was  appointed  on  

19.11.1984. Therefore, on the given date, respondent was senior to the  

other employees, who were promoted. Regarding locus standi and cause  

of action to file the suit is concerned, it was held that the cause of action  

is recurring and accrues every month when the benefit for promotion is  

denied to the respondent. Accordingly, the Civil Suit was dismissed by  

the Trial Court granting relief to the respondent herein to the extent that

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he may be promoted to the post of WPO from 26.3.1987 and his salary  

accordingly be fixed.  

3)Against  the  said  judgment  the  appellants  went  before  the  Appellate  

Court  contending  that  the  seniority  of  work  charge  employees  is  

maintained at Divisional Office Level and that of regular employees is  

maintained  at  Circle  Office  Level.  Since  respondent  and  other  co-

employees  being  work  charge  employees,  at  the  given  time,  their  

seniority was being maintained in respective divisions, therefore, there  

was  no  necessity  of  maintaining  seniority  in  different  divisions  

collectively.  

4)The  First  Appellate  Court  affirming  the  findings  of  the  Trial  Court  

observed that the respondent was appointed as Fitter Coolie on 28.6.1984  

in the Karnal division and was regularized on 22.1.1994 on the same post  

and other co-employees, Tej Pal was appointed as electrical helper on  

5.7.1984 in the Karnal division and was promoted to the post of WPO  

22.1.1985,  but  was  regularized  only  on 1.2.1994 and Rajinder  Kumar  

was  appointed  as  Mali-cum-Chowkidar  on  19.11.1984  in  the  Kaithal  

division and was promoted to the post of WPO after being regularized on  

21.1.1985. The Deputy Superintendent of appellants department admitted  

that  prior  to 1998 all  the employees such as Fitter  Coolie,  Mali-cum-

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Chowkidar, Keyman etc. used to be promoted as WPO. Thus, it becomes  

evident that respondent was senior to other co-employees.  

5)Another similar case was brought to the notice of the First Appellate  

Court,  Om Prakash Bairagi v. State of Haryana, wherein one Chander  

Prakash, junior to the Om Prakash, was promoted earlier to Om Prakash  

as WPO. The Trial  Court  in the said case held that  Om Prakash was  

entitled to be promoted to the post of WPO from the date on which his  

junior  Chander  Prakash  was  promoted,  which  was  confirmed  by  this  

Court.  

6)The First Appellate Court after considering submissions of the learned  

counsel  for  the  parties  and  documents  on  record,  has  come  to  the  

conclusion that the respondent ought to have been promoted from the  

date  when  his  junior  Tej  Pal  was  promoted  and  modified  the  relief  

granted by the Trial Court to the extent that the respondent is entitled to  

the arrears of salary for a period of three years prior to the date of filling  

of the suit.

7)The appellants then moved an appeal before the High Court inter alia  

challenging the correctness  of the order  passed by the First  Appellate  

Court.  The  High  Court  upholding  the  findings  of  the  First  Appellate  

Court dismissed the appeal.  

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8)The only point  that  would arise  for  our  consideration  in  the  present  

appeal  is,  whether  the  respondent  is  entitled  for  promotion  and  

consequential  benefits  from the  date  claimed despite  the  fact  that  the  

employees whom the respondent is trying to compare, belong to different  

divisions.

9)On behalf of the appellants, it is contended that seniority of work charge  

employees is  maintained at  Divisional  office level  and that  of  regular  

employees made regular from work charge cadre from time to time is  

maintained  in  Circle  office  level.  The employees  who were  promoted  

prior to the respondent belong to different circles or divisions therefore  

the respondent is not entitled for any promotion.  

10)Learned  counsel  for  the  respondent  has  argued  that  the  respondent  

being the senior most employee was not considered for promotion for the  

post  of  WPO  while  his  juniors  were  promoted,  and  therefore  he  is  

entitled for the promotion and all the consequential benefits including the  

entire back wages.  

11)It  is  beyond  doubt  and  in  fact  admitted  by  the  appellants  that  the  

respondent was appointed prior to other employees but was not promoted  

to the post of WPO. In all the replications filed before the Courts, the  

appellants  have  mainly  stressed  only  on  the  ground  that  the  other  

employees,  who were  promoted,  were appointed in different  divisions

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and were promoted in those Divisions,  and accordingly the claim of the  

respondent is not maintainable. It may be incidentally pointed out that the  

appellants in their petition have made some vague allegations suggesting  

that the respondent belongs to the work charge category and not regular  

employees category.  

12)The  High  Court  while  considering  the  submissions  made  by  the  

learned Counsel for the parties to the lis has observed that nothing has  

been produced by the appellants  which could show that  the Electrical  

Helper,  Mali-cum-Chowkidar  and  Filter  Coolie  were  having  separate  

seniority lists in the year 1987.

13)It is evident that the appellants, while appointing the respondent and  

other employees, did not put them in different heads, cadres, circles or  

divisions,  as the case may be,  for the purpose of seniority. Therefore,  

when  the  appellants  were  giving  promotions  amongst  the  Grade  IV  

employees  for  the  post  of  WPO,  they  should  have  considered  every  

employee,  including  the  respondent,  irrespective  of  the  aforesaid  

categories and according to the seniority and past record.  

14)This Court in the case of State of Orissa v. Durga Charan Das, (1966)  

2 SCR 907, has stated that  the promotion to a selection post depends  

upon several relevant factors, the number of vacancies in the posts is one  

factor; the number of persons eligible for the said promotions is another

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factor;  and the  seniority  of  the  said competitors  along with  their  past  

record and their merits, is yet another factor.

15)It was also observed by this Court in the case of Brooke Bond India (P)  

Ltd. v. Workmen, (1963) 1 LLJ 256, that at a given time, if more than  

one  person  are  eligible  for  promotion,  seniority  should  be  taken  into  

account and should prevail unless the eligible persons are not equal in  

merit.

16)In the case of Direct Recruit Class II Engg. Officers’ Assn. v. State of  

Maharashtra, (1990) 2 SCC 715, wherein it has been held by this Court  

that once an incumbent is appointed to a post according to the rules, his  

seniority has to be counted from the date of his appointment and not from  

the date of confirmation.

17)This Court in the case of State of U.P. v. Dinkar Sinha, (2007) 10 SCC  

548, held that the seniority may not be a fundamental right, but is a civil  

right. Infringement of the said right would be permissible only if there  

exists  any  rules  validly  framed  under  a  statute  and/or  the  proviso  

appended to Article 309 of the Constitution of India.  

18)The respondent  in the present  case was in no way at  fault.  He had  

served  faithfully  in  various  capacities  without  any  blemish  from  

27.7.1984.  The  treatment  meted  out  to  the  respondent  can  be  

characterized as discriminatory.  Thus, appellants should have promoted

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the  respondent  before  promoting  other  employees  according  to  the  

seniority of the employees.  

19)In view of the above discussions, the appellants are directed to give  

promotion to the respondent with effect from  26.03.1987 and consider  

his name for further promotions and benefits on the basis of seniority.  

Further appellants are directed to pay only Rs. 35000/- in full and final  

settlement for all his back wages.

20)With the aforesaid modifications, the appeal is dismissed. No order as  

to costs.  

                                                                                     …………………………………J.                                                                                        [TARUN CHATTERJEE]

                                                                                     …………………………………J.                                                                                        [ H.L. DATTU ] New Delhi, May 08, 2009.