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PETITIONER: KARAM CHAND

       Vs.

RESPONDENT: HARYANA STATE ELECTRICITY BOARD & ORS.

DATE OF JUDGMENT31/10/1988

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) THAKKAR, M.P. (J)

CITATION:  1989 AIR  261            1988 SCR  Supl. (3) 702  1989 SCC  Supl.  (1) 342 JT 1988 (4)   302  1988 SCALE  (2)1203

ACT:     Punjab  P.W.D. (Electricity Branch)  Provincial  Service Class 111 (Subordinate Posts) Rules, 1952. Rule9-Seniority-- Fixation   of--Normally  ‘in  accordance  to  the  date   of appointment’--Exception--Case of temporary promotion.

HEADNOTE:     The  appellant,  who  belongs to  the  Scheduled  Castes community, joined service as a clerk on February 20, 1954 in the   Electricity   Branch  of  the  Punjab   Public   Works Department.  In February 1959, the Punjab State  Electricity Board  was constituted and the employees of the  Electricity Branch  were transferred to the said Board.  The  conditions of  service of the employees were governed by  the  existing terms and conditions. as well as the existing service rules.     In  1967,  the  Haryana  State  Electricity  Board   was constituted  and  the appellant was allocated  to  the  said Board.  The Electricity Board by its resolution dated  March 16.  1976  adopted the circular letter dated   December  18, 1972 providing for reservation of 22% of Vacancies both  for initial  recruitment  as  well  as  for  promotion  to   the Scheduled Castes and Scheduled Tribes as well as to  members of the backward classes.     The  appellant  was promoted on September  25,  1973  as Deputy  Superintendent.  The  respondent  No.  2  was   also promoted  by  the  same  order  as  Deputy   Superintendent. However,  in  the said order, it was made clear  by  a  note appended thereto that the earlier promotion of the officials will  not confer on them any right to claim  seniority  over others.  On  April 27, 1972, a circular was  issued  by  the Chief   Secretary,   Government  of  Haryana  to   all   the Departments  regarding  the  criteria  for  reservation  for members  of  Scheduled Castes and Scheduled Tribes   in  the service and fixation of their seniority. As the seniority of the  appellant  was  not determined from  the  date  of  his appointment to the post of Deputy Superintendent, he made  a representation   to   the   Board    requesting   for    its determination. This representation was, however, rejected on the  ground  that seniority in the promoted  rank  would  be accorded  only with reference to the inter se  seniority  in the  previous  post, and on January 21, 1977, the  appellant

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was finally informed that his seniority will not be computed                                                   PG NO 702                                                   PG NO 703 from  the  date  of  his promotion to  the  post  of  Deputy Superintendent. On January 12, 1977 respondents 2 and 3  who were  junior to the appellant as Deputy Superintendent  were promoted  as  Superintendent superseding the  claim  of  the appellant.     Aggrieved   by  the  aforesaid  action  of   the   first respondent  in promoting respondents 2 and 3, the  appellant filed  a  writ  petition in the High Court  for  a  mandamus directing  respondent 1 to consider his case  for  promotion for the post of Superintendent on the basis of his being the senior-most  Deputy  Superintendent. The writ  petition  was contested  on behalf of the respondent l who stated  in  its counter-affidavit  that  the  petitioner  could  not   claim seniority  above  the  respondents 2 and 3 in  the  rank  of Deputy  Superintendent on the ground that his seniority  had already  been fixed in accordance with the  exception  below rule 9 of the 1952 Service Rules.     A  Single  Judge of the High Court  dismissed  the  writ petition  on the ground that the instructions governing  the matter of promotion in favour of Scheduled Castes  candidate had nothing to do with the determination of the seniority of these   candidates  and  that  the  letter   promoting   the petitioner  had  specifically  mentioned  that  the  earlier promotion  would  not confer on him any right  of  claim  to seniority  over and above those who are otherwise senior  to him in the cadre from which he was promoted and that in  the light of the exception to rule 9 of the 1952 Service  Rules, the  petitioner  being promoted temporarily,  his  seniority cannot  be counted from the date of his appointment  in  the higher  post  and  that respondents 2 and 3,  who  could  be treated  senior to him in the rank of Deputy  Superintendent as  the  were  senior  to the petitioner  in  the  grade  of assistants.     The Letters Patent Appeal filed by the appellant  having been  dismissed  summarily, the appellant appealed  to  this Court by special leave.     Allowing the Appeal,     HELD.  1. On a plain reading of Rule 9 it  appears  that the  seniority of the members of the service serving  in  an officiating   capacity   shall  be   determined   prior   to confirmation   ‘in   the  order  of  the  dates   of   their appointment’  and  after confirmation  by  their  respective dates of confirmation. The exception to this Rule is that if a  member of the is promoted temporarily to a  post  earlier than  his senior for reasons other than inefficiency of  the senior  person  they will take rank inter  se  according  to                                                   PG NO 704 their  relative seniority in the class from which they  were promoted  and  the Junior person so promoted  shall  not  be confirmed from a date earlier than the date of  confirmation of the senior. [709F-G]     In the Instant case, the appellant has been promoted  to the  post of Deputy Superintendent which was reserved  under the  block system for members of the Scheduled  Castes.  The appointment  to  the said reserved post on  promotion  is  a regular  one.  The  appointment letter does  not   that  the promotion   of   the  appellant  to  the  post   of   Deputy Superintendent was purely temporary. This being the position the  exception to Rule 9(11) cannot be applied to  determine the  seniority  of   the appellant in  the  post  of  Deputy Superintendent,  and  his  seniority  cannot  be  based   in accordance with the inter se seniority of respondent Nos. 2

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and  3  wee promoted to he post  of  Deputy  Superintendent. [710A-D]     2. The appellant is thus senior to respondent Nos. 2 and 3 in the rank of Deputy Superintendent  the was promoted  to the said post earlier them the respondents Nos. 2 and 3  and as   such   his  claim  for  promotion  to   the   post   of Superintendent on the dates when the respondent Nos. 2 and 3 were promoted to such post is legal and valid. [710E]     3/  Respondent No. 1 is directed to treat the  appellant promoted  to  the  post  of  Superintendent  from  the  date respondent  Nos. 2 and 3 were promoted to the said post  and to  pay  him  the emoluments attached to the  said  post  of Superintendent   minus   the  emoluments  paid   us   Deputy Superintendent  from  that date till May 29,  1981  date  of actual appointment is Superintendent. [711A-B]

JUDGMENT:     CIVIL APPELLATE JURISDICTION:  APPeal NO 4454 of 1985.     From  the  Judgment  and Order dated  15.2.1984  of  the Punjab  and Haryana High Court in L.P.A. No. 224 of 1984.     V.M.  Tarkunde, Miss Meenakshi Arora,  R.N.  Karanjawala and Mrs. Manik Karan jawala for the Appellant.     K.K Jain, A.D. Sanger, Ajay K. Jain, Pramod Dayal,  B.R. Appeal, P.G. Gokhale, Janendra Lal and Miss Yashmin Tarapore for the Respondents.                                                   PG NO 705     The Judgment of the Court was delivered by     RAY,  J. The only question that arises for  decision  in this  appeal  is  whether an employee  promoted  to  a  post reserved  for  Scheduled  Castes  and  Scheduled  Tribes  is entitled  to have his seniority determined from the date  of his  appointment to the post or his seniority inter se  will be  reckoned as it was in the class or grade from  which  he was promoted to a post in a higher rank.     The  appellant, who is a Scheduled Caste joined  service as  a Clerk in the Electricity Branch of the  Punjab  Public Works  Department  on  February  20,  1954.  The  terms  and conditions of his service were governed by the Punjab P.W.D. (Electricity    Branch)   Provincial    Service    Class-111 (Subordinate posts) Rules, 1952. In February, in and  Punjab State  Electricity Board was constituted under Section 3  of the Electricity (Supply) Act, 1948 and the employees of  the Electricity  Branch  were  transferred  to  the  Board.  The conditions  of  service of the employees  were  governed  by their  existing  terms and conditions as  well  as  existing service  Rules. In 1967 the Haryana State Electricity  Board was  constituted  and  the appellant was  allocated  to  the Haryana  State  Electricity Board with  existing  terms  and conditions   of  service.  The  Board  being   a   statutory corporation was requested by letter dated December 13,  1972 by  the  Government  to provide for reservation  of  22%  of vacancies--initial recruitment and promotion posts for being filled  up by members of the Scheduled Castes and  Scheduled Tribes  as  well  as by members  of  backward  classes.  The Haryana  State Electricity Board adopted the above  circular by its Resolution dated March 1976 providing for reservation of  posts  both  for  initial requirement  as  well  as  for promotion.  The appellant was promoted on September 1973  as Deputy  Superintendent the respondent No.2,  Rajinder  Singh Marya  was  also  promoted  by  the  same  order  as  Deputy Superintendent.  In  the  said  order  of  appointment   the following note was appended:     The  earlier promotion of the above officials as  Deputy

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Superintendent will not confer upon them any right to  claim seniority over those who may otherwise be senior to them due to any reason whatsoever.     On  April  27, 1972 a circular was issued by  the  Chief Secretary  Government  of  Haryana to  all  its  departments regarding  reservation for members of Scheduled  Castes  and Scheduled  Tribes  in  service  and  fixation  of  seniority Paragraphs  2 and 4 of the said circular which are  relevant are quoted hereinbelow:                                                   PG NO 706     "2. It has to be pointed out that this was irregular and inter  se  seniority of all the  candidates  taken  together (i.e.  whether  appointed  against  reserved  vacancies   or against  open ones) must be fixed according to the  combined merit   list  and  not  otherwise.  Vacancies  assigned   to Scheduled Castes/Backward Classes under block system are  so assigned  for the purposes of reservation only and  are  not intended  for  fixing inter se seniority of  the  candidates contrary to their order in the combined merit list  prepared by   the  Public  Service   Commission/Subordinate   Service Selection Board.     4.  The above instructions, regarding  determination  of inter  se seniority will however? apply only in those  cases where  the  departmental service rules do  not  provide  for seniority being determined from the date of joining or  from the  date of confirmation or by a method otherwise than  the merit  determined  by the Public  Service  Commission/S.S.S. Board. In other words, in all cases where the service  rules have not yet been framed, or where the service rules provide for  seniority being determined according to the merit  laid down  by the Commission/S.S.S. Board, the seniority  of  the officials shall be determined in the manner stated above. In other  cases, where the service rules  specifically  provide for  seniority being determined from the date of joining  or from  the date of confirmation by the  recruiting  authority the   seniority  shall  be  determined  by  such   different methods."     As  the  seniority of the appellant was  not  determined from  the  date  of his appointment to the  post  of  Deputy Superintendent  he  made  a  representation  to  the   Board requesting for determination of his seniority from the  date of  his  appointment  to  the promoted  post  and  also  for considering   his  case  for  promotion  to  the   post   of Superintendent.  This  representation of the  appellant  was rejected on the ground that:     "The officials belonging to the scheduled  castes/tribes and  backward  classes who are promoted  against  the  posts reserved  for  them under the block system and  for  reasons other  than  inefficiency  of  their  seniors  will  not  be assigned  seniority  from the date of their joining  in  the                                                   PG NO 707 promoted  rank.  They  shall be assigned  seniority  in  the promoted rank with reference to their inter se seniority  of their previous posts.     Thereafter,  on  January  20,  1977  the  appellant  was finally  informed  that his seniority will not  be  computed from  the  date  of  his promotion to  the  post  of  Deputy Superintendent.  On January 12, 1977 the respondent  Nos.  2 and  3 i.e. Rajinder Singh Marya and Jagdish Lal  Lamba  who were junior to the appellant as Deputy Superintendents, were promoted  as  Superintendents superseding the claim  of  the appellant.     Aggrieved   by   this,  the  appellant   instituted   an application  under Article 226 of the Constitution of  India in  the High Court of Punjab and Haryana praying for a  writ

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of  mandamus directing the respondent No. 1 to consider  his case  for  promotion to the post of  Superintendent  on  the basis   of  his  being  seniormost   Deputy   Superintendent according  to the continuous length of service on that  post and to promote him to the post of Superintendent with effect from  the date his juniors have been promoted and for  other consequential  reliefs. An affidavit was filed on behalf  of Respondent  No.  1 verified by Shri R.  Prakash,  Secretary, Haryana  State  Electricity Board wherein in para 3  it  has been submitted that:     "   .....the  seniority  of  the  petitioner  has   been determined   in  the  post  of  Deputy   Superintendent   in accordance  with  the  exception below Rule 9  of  the  1952 Rules."     In  Para 5 it has been admitted that the  appellant  was promoted  as Deputy Superintendent on 25th  September,  1973 and  since  then he is continuing on the said post.  It  has further  been submitted that the promotion of the  appellant was  in  an officiating capacity and he still  continues  to officiate  as  Deputy  Superintendent.  The  appellant   was promoted to the post of Deputy Superintendent against a post which was reserved for the Scheduled Castes, though  he  was far junior in the cadre of Assistants. In para 7 it has been stated that:     "...  The petitioner cannot claim seniority above  those two officials in the rank of Deputy Superintendent. In  view of  the  exception  to Rule 9, if a  member  of  service  is promoted  temporarily to a post earlier than his senior  for                                                   PG NO 708 reasons  other than the inefficiency of the  senior  person, they  will  take rank inter se according to  their  relative seniority  in  the class from which they were  promoted  and junior  persons thus promoted shall not be confirmed from  a date  earlier  than the date of confirmation of  his  senior except  on the score of inefficiency of the latter.  In  the present case, the petitioner was promoted temporarily to the post  of  Deputy  Superintendent earlier to  the  other  two officials on the ground that the petitioner belonged to  the scheduled   castes.  The  other  two  officials   were   not superseded on the ground of inefficiency ..."     On February 4, 1984 the learned single Judge of the High Court  dismissed the writ petition holding inter  alia  that the instructions governing the matter of promotion in favour of the Scheduled Caste candidates had nothing to do with the determination   of  the  seniority  of   these   candidates. Moreover,  in  the letter promotion the  petitioner  it  was specifically mentioned that the earlier promotion would  not confer   on  him any right or claim to  seniority  over  and above  those who were otherwise senior to him in  the  cadre from which he had been promoted. It was further held that  m the  light  of  exception to Rule 9,  the  petitioner  being promoted temporarily, his seniority cannot be   counted from the  date  of  his appointment in the higher  post  and  the respondent  Nos. 2 and 3 would be treated senior to  him  in the rank of Deputy Superintendent as they were senior to the petitioner  in  the grade of Assistants. It  was  therefore, found  that  respondent  Nos. 2 and 3 were  entitled  to  be promoted as Superintendents earlier to the petitioner .     Against  this judgment and order Letters  Patent  Appeal being  LPA  No. 224 of 1984 was filed. The said  appeal  was however. dismissed summarily as being without any merit.     The  appellant,  thereafter, filed  the  instant  appeal assailing  the said judgment. Before proceeding to  consider the question whether the appellant’s seniority was  properly determined  under Rule 9 of the Punjab  P.W.D.  (Electricity

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Branch)  Provincial Service Class 111  (Sub-ordinate  posts) Rules  1952  (in  short to be referred herein  as  the  said Rules)  it  is  necessary to set  out  herein  the  relevant provision of Rule 9:     "9.  Seniority  of  the  members  of  the   Service--The seniority  of the members of the Service for the time  being serving  in each class of appointment shown in Appendix  ‘A’ shall be determined as follows:                                                   PG NO 709     (i)  Prior to confirmation (i.e. in the case of  persons serving  on probation or in an officiating capacity) in  the order  of the dates of their appointment or if such date  be the same in respect of two or more persons, in the order  of their ages, the older being placed above the younger.     (ii)  After  confirmation by their respective  dates  of confirmation,  provided that where two or more  members  are confirmed w.e.f. the same date they will retain the order to confirmation.     Exception:  If  a  member of  the  service  is  promoted temporarily  to a post earlier than his senior, for  reasons other  than the inefficiency of the senior person they  will take rank inter-se according to their relative seniority  in the  class  from  which they were promoted  and  the  junior person  thus  promoted shall not be confirmed  from  a  date earlier  than the date of confirmation of his senior  except on the score of inefficiency of the latter.     Provided  further  that if a member is  appointed  to  a higher  class later than a person who was junior to  him  in the  lower class for reasons which the appointing  authority may  certify  in  writing to be connected  with  the  Public interest  the  person so appointed shall be given  the  same seniority  in the higher class vis-a-vis such junior  as  he held in the lower class.     Thus, on a plain reading of the Rule it appears that the seniority  of  the  members of the  Service  serving  in  an officiating capacity shall be  prior to confirmation ‘in the order   of  the  dates  of  their  appointment’  and   after confirmation  by  their respective  dates  of  confirmation. There  is an exception to this Rule to the effect that if  a member  of  the Service is promoted temporarily  to  a  post earlier than his senior for reasons other than  inefficiency of the senior person they will take rank inter-se  according to  their  relative seniority in the class from  which  they were promoted and the junior person so promoted shall not be confirmed from a date earlier than the date of  confirmation of  the senior. The provision contained in the exception  to Rule 9 is applicable only in the case of temporary promotion of a member of the service to a post earlier than his senior for  the  purposes  other than inefficiency  of  the  senior persons.                                                   PG NO 710     In  the instant case admittedly the appellant  has  been promoted  to  the post of Deputy  Superintendent  which  was reserved under the block system for members of the Scheduled Castes. The appointment         to the said reserved post on promotion  is  a regular one and this has been  admitted  in paragraph   5   of   the   counter-affidavit   referred   to hereinbefore.  The  appointment letter does  not  articulate that  the  promotion of the appellant to the post of  Deputy Superintendent was purely temporary. The promotion has  been made on a regular basis to the post of Deputy Superintendent reserved on the basis of quota of vacancies for being filled up  by  promotion  of members  belonging  to  the  Scheduled Castes.  The  appointment  of  the  appellant  to  the  said promotional post of Deputy Superintendent, in our considered

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opinion  cannot  be  designated to  be  purely  a  temporary promotion.  This  being the position the exception  to  Rule 9(ii)  of the said rules cannot be applied to determine  the seniority   of   the  appellant  in  the  post   of   Deputy Superintendent   and  his  seniority  cannot  be  based   in accordance  with  the inter-se seniority of  the  respondent Nos.  2  and  3 in the cadre of Assistants  from  which  the appellant  and respondent Nos. 2 and 3 were promoted to  the post  of Deputy Superintendent. Rule 9(i) of the said  Rules is  applicable  in  this  case  and  the  seniority  of  the appellant is to be reckoned from the date of his appointment In the post of Deputy Superintendent. The appellant is  thus senior  to  respondent Nos. 2 and 3 in the  rank  of  Deputy Superintendent  as he was promoted to the said post  earlier than the respondents Nos. 2 and 3 and as such  his claim for promotion  to the post of Superintendent on the  dates  when the  respondent Nos. 2 and 3 were promoted to such  post  is legal  and  valid.  It  may be  mentioned  that  during  the pendency  of  the  writ petition,  the  appellant  had  been promoted  to the post of Superintendent on 29.5.1981 and  as such he pleaded in para 6 of the special leave petition that his seniority in the cadre of Deputy Superintendent   should not  be affected on the basis of the judgments  rendered  by the High Court.     On a consideration of the facts and circumstances stated hereinbefore,  the  finding  of  the  High  Court  that  the appellant was promoted temporarily and so exception to  Rule 9(ii)   applies  for  determination  of  seniority  of   the appellant  as  Deputy  Superintendent,  in  our   considered opinion,  cannot be sustained as we have already  held  that the  promotion of the appellant in a reserved vacancy, is  a regular  one  and  it does not  smack  of  purely  temporary character. The seniority of the appellant is to be  reckoned from the date of his appointment to the said post  according to  the  provisions  of Rule 9(i) of  the  said  Rules.  The judgments of the High Court in Letters Patent Appeal No. 224 of 1984 as well as in the writ petition No. 773 of 1977  are                                                   PG NO 711 set aside and the appeal is allowed. The respondent No. 1 is directed  to  treat the appellant promoted to  the  post  of Superintendent  from  the date the respondent Nos. 2  and  3 were promoted to the said post and to pay him the emoluments attached  to  the  said post  of  Superintendent  minus  the emoluments paid as Deputy Superintendent from that date till the  date of his actual appointment as Superintendent,  i.e. May 29, 1981. The appeal is thus allowed with costs. N.V.K.                                       Appeal allowed.