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PETITIONER: HARI OM VERMA

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT:       09/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (7)   672        1996 SCALE  (6)371

ACT:

HEADNOTE:

JUDGMENT: THE 9TH DAY OF AUGUST, 1996 Present :           Hon’ble Mr. Justice K. Ramaswamy           Hon’ble Mr. Justice G.B.Pattanaik Ashok Grover, Sr. Adv. and Pramod Dayal, Adv. with him for the appellant Manoj Swarup, Adv. for the Respondent J.S.Maanipur and S.K.Sabbarwal, Advs. for the Respondent Nos. 5 and 6                          O R D E R The following Order of the Court was delivered : Hari Om Verma V. State of Punjab & Ors.                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      The admitted position is that the respondent Nos. 5 and 6, Gurnam  Singh and  Parminder  Singh,  were  appointed  on September 19,  1975 and  September 25,  1975 respectively as Assistants on  regular basis  and ever  since they have been continuously officiating  as Assistants. The appellant while working  as   a  Senior   Stenographer  had   come  to   the administrative side  as Assistant  w.e.f. April 29, 1977 and joined the  duty on the said date. In the matter of fixation of inter  se seniority, since he has been drawing higher pay than the respondent Nos. 5 and 6 he claims that he is senior to them.  The High  Court in  the  impugned  judgment  dated 9.12.1993 in  W.P. Nos. 3938 and 9791 of 1993 has upheld the claim of the respondents. Thus, these appeals.      Shri Ashok  Grover, learned  counsel for the appellant, contended that  Rule 3(1)  and Rule 3(2) are to be used read together; if they are so read, a stenographer drawing higher scale of pay than the respondent should be treated as senior to them.  Though prima facie the argument is plausible, on a

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careful reading  of the  said Rules  his contention does not appear to be tenable. Rule 3 reads as under :      "3(1) In offices where the scale of      pay of  Stenographers is  identical      to   that    of   Assistants,   the      Stenographers     shall,     before      becoming eligible  for promotion to      a higher post on the clerical side,      have  to     (i)   qualify  in  the      departmental  test  prescribed  for      the post of Assistant, and      (ii) work as Assistant for a period      of  two   years  on  some  existing      vacancy or  by sharing  the work of      an Assistant"      Provided that :-      a) no Stenographer shall be allowed      to take  the test unless he has put      in   one    year’s    service    as      Stenographer      b) nothing  in this  sub-rule shall      be   deemed    to    require    the      Stenographers, who  stand  exempted      from passing  the test by virtue of      the  instructions  already  by  the      Government from  time to  pass  the      Assistant’s test prescribed in this      sub-rule.      c) no  Stenographer will  be put to      work  as   an  Assistant   for  the      required  period   of  two   years,      unless  he  has  qualified  in  the      test.      Explanation 1.  The  period  during      which a  Stenographer  has,  before      the date  of issue  of these rules,      performed   the    duties   of   an      Assistant whether  in  addition  to      his own duties or otherwise will be      taken   into    consideration    in      computing   the   period   of   his      training as Assistant.      Explanation 2.  Where there  is  no      available vacancy  of the  post  of      Assistant for imparting training to      the Stenographer  he shall be given      at least  one third  of the work of      some Assistant  in addition  to his      own duties.  The Assistant  who  is      thus relieved  of some  of his work      will in  turn help the Stenographer      in his routine duties.      (2)   The    seniority    of    the      Stenographers   who   successfully,      complete the  period of  two  years      training specified  in sub-rule (1)      vis-a-vis  Assistants,   shall   be      determined by  the dates  of  their      continuous appointment  against the      post of Stenographers or Assistant,      as the case may be and if the dates      of their higher pay shall be senior      to the  other and  if the  rates of      pay drawn by them be also the same,      the older  shall be  senior to  the

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    younger."      A reading thereof clearly indicates that a stenographer who becomes  eligible for  promotion to  a  higher  post  on clerical side  has to  fulfill the qualifications prescribed in  Rule   3(1)  (i)   and  (ii).  On  fulfillment  of  such qualifications, the  inter se seniority is regulated by sub- rule (2)  of Rule  3. Thereunder,  the inter se seniority of the assistants  and stenographers  who successfully complete the period  prescribed in  sub-rule (1)  of Rule 3, shall be determined by  the date  of their  continuous appointment as against the  post of  stenographer or assistant, as the case may be,  and if  the dates of their appointment be the same, the one  drawing higher pay shall be senior to the other and if the  rates of  pay drawn  by them  by also  the same, the older shall  be senior to the younger. It would thus be seen that the continuous officiation  in the post of assistant is the determining  factor to  fix the  inter se  seniority. In case, the  assistant and  the senior  stenographer happen to officiate continuously  in that  post from  the  same  date, necessarily the  person who  is having  higher scale  of pay either as  Stenographer or Assistant, shall be treated to be senior to  the person  who is drawing lower scale of pay. If the persons  drawing the  same scale  of pay  happened to be appointed be  the same,  the one drawing higher pay shall be senior to  the other  and if the rates of pay  drawn by them be also  the same, the older shall be senior to the younger. It would thus be seen that the continuous officiation in the post of  assistant is  the   determining factor  to fix  the inter se  seniority. In  case, the  assistant and the senior stenographer happen  to officiate  continuously in that post from the  same date,  necessarily the  person who  is having higher scale  of pay  either as  Stenographer or  Assistant, shall be  treated to  be senior to the person who is drawing lower scale of pay. If the persons drawing the same scale of pay. If  the persons drawing the same  day, the older person shall be treated as senior to the younger person. In view of the fact  that the  respondents had  come to be appointed in the year  1975 and  the appellant had come to the service on the administrative  clerical side in 1977, though he drawing higher scale  of pay as senior stenographer, he cannot scale over the respondents in seniority.      The appeals are accordingly dismissed. No. costs.