CWP NO.15794 OF 1990 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
DATE OF DECISION:14 .7.2009
Er.B.R.Bawa and others ...Petitioners
VERSUS
State of Punjab & Others ...Respondents
CORAM
HON'BLE MR.JUSTICE PERMOD KOHLI
PRESENT: Mr.R.D.Bawa, Advocate for the petitioners
Mr.BS Chahal, DAG, Punjab
Mr.R.K.Sharma, Advocate
Permod Kohli, J.
Order dated 3.12.1990 whereby the final seniority list of Assistant
Engineers as it stood on 30.10.1990 has been challenged in the present writ
petition. The petitioners belong to Civil Wing of the Engineering Service
and the relief claimed in the present petition is confined to Civil Wing of
the Punjab Housing Development Board. It is admitted case of the parties
that respondent-Corporation has not framed any separate rules governing
the service conditions of its employees belonging to the Engineering Wing
CWP NO.15794 OF 1990 2
and the Service rules, namely, Punjab Service of Engineers Class-II, P.W.D.
(Building and Roads Branch) Rules, 1965 were adopted by the Board and
the service conditions of the petitioners are governed and regulated by the
aforesaid rules.
The petitioners were appointed as Assistant Engineers vide order
dated 17.9.1981. Rule 6 of the 1965 Rules provides for different modes of
recruitment of Engineers indicated therein. In a block of 40 vacancies, 26
vacancies are earmarked for direct recruits, 8 by promotion from amongst
the members of the Punjab PWD (B&R) Sectional Officers (Engg.) Service,
3 by promotion from draftsmen members and Tracers services, 4 by
promotion from members of the Punjab PWD (B&R) Sectional Officers
(Engineers). The rule further provides for shifting of the vacancies from
some of the specified sources in the event of non-availability of suitable
candidates. The seniority of the members of the service is regulated by Rule
12. This rule, inter-alia provides for determination of the seniority of the
members of the service by the order of appointment in service according to
Rules 6, 8 and 9 irrespective of their date of joining. Under the 1st Proviso
to Rule 12 (1), it is provided that in case of those officers whose probation
is extended, the date of appointment shall be deemed to have been issued
on date determined by adding to the original date extended period of
probation. From the perusal of the aforesaid two Rules, it appears that the
seniority of the members of service is to be governed on the basis of the
quota fixed for each source and the specific roster point fixed for such
source.
It has been pleaded in the writ petitions that in the Punjab Housing
Board, there are three Engineering Wings- Assistant Engineers (Civil),
CWP NO.15794 OF 1990 3
Assistant Engineers (Public Health) and Assistant Engineers (Electrical).
Each wing has separate cadres and separate seniority. The present dispute
relates to only the seniority in the Civil Wing. The three separate seniority
lists have been circulated by respondent no.2 for the cadre of Civil
Engineers (Civil) Wing and other two wings referred to above. These
tentative seniority lists were circulated on 31.7.1981 vide letter dated
26.7.1983.
Vide the aforesaid Circular, objections were invited in respect of the
tentative seniority list. On consideration of the objections, a final seniority
list dated 3.4.1984 (Annexure P-3) was circulated. This seniority list clearly
establishes that the seniority has been fixed by applying quota/rota rule in
accordance with Rules 6 and 12 of the Punjab Service of Engineers Class-II
PWD B&R Branch Rules, 1965 (hereinafter referred to as “the 1965
Rules”). As a matter of fact, the seniority has been fixed on the basis of
roster points irrespective of the date of joining. Another tentative seniority
list came to be issued in the year 1989 and the names of those persons who
were appointed after the issuance of the first seniority list were also
included but in the same manner. It is alleged that some persons with
vested interests attempted to put pressure to fix the seniority according to
the date of joining. Apprehending that the seniority list may be changed, the
petitioners made a representation dated 21.2.1989 (Annexure P-4)
requesting for maintaining the seniority, as per final seniority list dated
3.4.1984 (Annexure P-3). The authorities, however, on consideration of
various representations for and against the rota/quota system, published an
upto date tentative seniority list as it stood on 3.4.89 vide letter dated
19.5.89 (Annexure P-5).
CWP NO.15794 OF 1990 4
It is alleged that a new Housing Commissioner took over and
attempts were made to disturb the above seniority. The petitioners again
made a representation dated 8.8.1990 (Annexure P-6). Since the petitioners
were apprehending change of the mode of fixation of seniority, they filed
CWP No.12945 of 1990 (Er.K.K.Jain and others vs. State of Punjab and
another) before this Court. The aforesaid writ petition was disposed of vide
order dated 5.10.1990 with the following directions:-
“After hearing the learned counsel for the petitioners we
direct the respondents to decide the representation dated
8.8.1990 Annexure P-6 to the writ petition, by passing a
speaking order in accordance with law within two
months. The petition stands disposed of accordingly.”
Respondent no.2 considered the representation of the petitioner in the
light of the aforesaid directions and rejected the same vide order dated
4.12.1990 (Annexure P-8) and fixed the seniority on the basis of date of
joining, ignoring the quota/rota. Seniority lists (Annexures P-3 and P-5)
earlier issued in accordance with the quota-rota have been altered. It is
further alleged by the petitioners that even though the seniority vide order
(Annexure P-8) has been fixed on the basis of date of joining, however, the
rule of length of service has also not been adhered to. It is stated that
appointees of the year 1979 in the cadre of Assistant Engineers (Civil)
have been shown senior to appointees of the years, 1976, 1977 and 1978.
Similarly, appointees of 1981 have been shown senior to the appointees of
1978, 1979 and 1980. It is specifically alleged that one Engineer K.B.Passi
who is an appointee of 22.11.1976 has been brought down because of
extension of his probation period under proviso to Rule 12 of the 1965
CWP NO.15794 OF 1990 5
Rules whereas Maninder Singh whose probation period was also extended
and whose roster point was allotted to petitioner no.1, as is clear from
Sr.No.18 and 25 of Annexure P-5, has been placed at Sr.No.18 and
petitioner no.1 has been pushed down at Sr.No.40.
In sum and substance, the contention of the petitioners is that
seniority is to be fixed on the basis of quota/rota as envisaged under Rules
6 and 12 of the 1965 Rules. From the perusal of the impugned order
(Annexure P-8), it appears that the authorities have adopted length of
service as the mode of fixation of seniority on the plea that the rota/quota
system has broken down.
The respondents have defended and justified the impugned order
(Annexure P-8) firstly on the ground that the persons who are senior to the
petitioners and are likely to be affected, are not parties before this Court.
Secondly, the seniority has been fixed after affording an opportunity of
being to the petitioners and on the basis of the judgment of Hon’ble
Supreme Court in the case of The Direct Recruit Class-II Engineering
Officers’ Association and others v. State of Maharashtra and others,
AIR 1990 Supreme Court 1607. It is been further argued that since
quota/rota system has already broken down and no person under the roster
point was eligible for promotion to the posts, hence, the appointments were
made by direct recruitment on regular basis between 1978 to 1980 and thus
quota/rota system is not applicable. The respondents have placed reliance
upon the judgment of the Hon’ble Supreme Court in the case of The Direct
Recruit Class-II Engineering Officers’ Association (supra). In the
aforesaid judgment, Hon’ble Supreme Court made following observations:-
“44…..(E)Where the quota rule has broken down
CWP NO.15794 OF 1990 6and the appointments are made from one source in
excess of the quota, but are made after following
the procedure prescribed by the rules for the
appointment, the appointees should not be pushed
down below the appointees from the other source
inducted in the service at a later date.
(F)Where the rules permit the authorities to relax
the provisions relating to the quota, ordinarily a
presumption should be raised that there was such
relaxation when there is a deviation from the quota
rule…”
In the case of M.Subba Reddy and another vs. State Road
Transport Corporation and others, 2004 (2) SCT 752, it has been held
that rule of rota is inbuilt in the quota prescribed for direct recruits and for
promotees and so long as the quota rule is in force between two sources,
the Government cannot deviate from the same and the seniority of the
promotees even if promoted prior in time against the vacancies meant for
direct recruits could have to be brought down below the direct recruits and
will be fixed on roster point of their quota when it became available.
Similar view has been expressed in the case of Arvinder Singh Bains v.
State of Punjab and others, AIR 2006 Supreme Court 2265 wherein
following observations have been made:-
“58.We have also referred to the decisions
rendered by this Court. This Court said rota and
quota must necessarily be reflected in the seniority
list and any seniority list prepared in violation of
CWP NO.15794 OF 1990 7rota and quota is bound to be negated. The action
of the respondents in determining the seniority is
clearly in total disregard of rota-quota prescribed
in Rule 18 of the 1976 Rules. The action is
therefore, clearly contrary to the law laid down by
this Court. Thus we hold:
1.that the action of the State is contrary to the 1976
rules;
2.the seniority under the 1976 Rules must be based
on a collective interpretation of Rule 18 and Rule
21 of the 1976 Rules;
3.the action of the authorities is negation of Rule
18 of 1976 Rules in determining the seniority by
the impugned order. Since the action is contrary to
law laid down by this Court, we have no hesitation
in allowing the appeal and grant the relief as
prayed for by the appellant.”
In the present case, Rule 6 of the 1965 Rules prescribes for the quota
in the following manner:-
“6.Recruitment to service (1): Recruitment to the service for cadre and ex-
cadre post shall be made in the following manner only from the sources
listed below in the promotions and the order indicated against a lot of every
40 vacancies.
Method of recruitment Proportion Allocation to each source in a lot of
40 vacancies
1.Direct Appointment 26 5 6 5 5 5
CWP NO.15794 OF 1990 8
Method of recruitment Proportion Allocation to each source in a lot of
40 vacancies
2.Promotion from the members of 8 2 1 2 1 2
the Punjab PWD (B&R) Sectional
Officers (Engg.) Services
3.Promotion from draftsman 2 1 - - 1 -
members of the Draftsman and
tracers services
4.Promotion from members of the 4 - 1 1 1 1
Pb. PWD (B&R) Sectional Officers
(Engg.)
5.Service and the Draftsman and
tracer service possession
qualifications prescribed in
Appendix "B"
40 8 8 8 8 8
_____________________
(2)In case suitable candidates are not available from source no.4, the
vacancies shall be filled by direct recruitment.
(3)In case a candidate is not available from sources 1 and 3 and person has
to be appointed, in public interest as a stop-gap arrangement from other than
the allotted sources such a person shall be liable to be reverted to his
original cadre when a candidate from the allotted source is available and the
period of service rendered by such person will not be reckoned for the
purpose of seniority.
(4)The Government may fill a short term vacancy in the exigencies of public
service, after recording specific reasons, for a period not exceeding six
months in each case by local arrangement from among the members of the
Punjab PWD B&R, Sectional Officers (Engg.) Service without resorting to
the select list prepared.
(5)No person except to the extent provided under sub rule (9).
a)who is not substantive member of the PWD (Buildings & Roads Branch)
Class II Service or a member of PSE (B&R) Class I Service in the junior
scale on the date of enforcement of these rules.
CWP NO.15794 OF 1990 9
b)who is not considered suitable for appointment to the service as provided
in rule read with Appendix “G” shall hold the post of a Sub Divisional
Officer even in an officiating capacity unless he is declared within a period
of six months from the date of enforcement of these rules, as suitable for
appointment to the service under the provisions of these rules.”
From the reading of the aforesaid Rule, it is apparent that the
recruitment to the cadre in the service is to be made from different sources
and in the ratio prescribed there for against the slots earmarked for each
source on rotation basis. Sub Rule (2) of Rule 6 permits the deviation of the
vacancies from Source No.4 to direct recruits. However, in all other sources,
the deviation could be temporary as stop-gap arrangement and when the
eligible persons from the particular source are available, the stop-gap
promotees are to make way. The intention of the rule making authority is
very clear i.e. to adhere to the quota/rota prescribed therein. Seniority for
the members of the service is to be regulated under Rule 12 of the 1965
Rules which reads as under:-
“12.SENIORITY
(1)Except as provided in sub rule (5) of this rule
relating to officers appointed by transfer, the
seniority of the members of service shall be
determined by the order of appointment in service
according to rules 6, 8 and 9 irrespective of their
date of joining.
Provided that:
Where the period of probation of an officer has
been extended the order of appointment shall be
CWP NO.15794 OF 1990 10deemed to have issued on date determined by
adding to the original date extended period of
probation.
2.The inter-se seniority of the members of the
service shall be in order to recruitment provided
under rule;
Provided that:
in case an officer does not join this appointment
within six months of the date of order of
appointment his seniority shall be determined by
Govt. on an ad hoc basis after taking into
consideration all the circumstances of the case.
3.The inter-se seniority within the group of direct
recruitment shall be as in the merit under Rule 8.
4.The inter-se seniority within the group of
promoted officers (from particular source) shall be
as in the list approved under rule 9.
5.In the case of an officer appointed by transfer as
an Assistant Engineer, while normally he would be
placed junior to all the officers appointed directly
or by promotion as Assistant Engineers.
In a particular year the Govt. may in the interest of
the public service and taking into consideration all
the circumstances of the case, fix the seniority on
an ad hoc basis.
Provided that the seniority thus fixed shall, in no
CWP NO.15794 OF 1990 11case, be more favourable than the seniority
determined after his credit for the period of service
rendered by him in previous appointment as
Assistant Engineer or on a post equivalent or
greater responsibility. The decision of Government
on this point shall be final.
Provided further that the provisions of proviso to
sub rule (1) shall apply to such an officer if his
period of probation is extended.”
Sub Rule (1) of Rule 12 clearly prescribes that the seniority shall be
determined by order of appointment in the service according to Rules 6, 8
and 9 irrespective of the date of joining. Sub Rule (2) further lays down the
concept of rota and quota by providing that the inter se seniority of the
members of service shall be in the order to recruitment provided under the
rule. The rules provide for recruitment from different sources and in the
ratio prescribed therein as is evident from Rule 6 and thus, the mode of
recruitment and the quota prescribed there for is to be applied for
determining the seniority in the cadre of service. In the case of M.Subba
Reddy (supra), it has also been laid down that where there is inaction on
the part of the Government or the employer or imposed ban on direct
recruitment, in filling up the posts meant for direct recruits, it cannot be held
that the quota has broken down. The plea of the respondents that the
seniority is to be fixed on the basis of the date of joining and length of
service because the quota-rota system has broken down, is contrary to the
mandate of Rules 6 and 12 of the 1965 Rules. It is settled law that once the
Rule prescribes the quota, the same is to be adhered to as is the ratio of
CWP NO.15794 OF 1990 12
judgments referred to here-in-above. Reliance placed upon the judgment of
the Hon’ble Apex Court in the case of The Direct Recruit Class-II
Engineering Officers’ Association (supra) is mis-placed. Deviation is
permissible if rule permits. Sub rule (2) of Rule 6 allows deviation only
from source 4 to source 1 (direct recruitment). No further deviation is
permitted. To the contrary sub rules 3 & 4 prohibit deviation of quota. It is
also significant to note that slots are fixed for each source. Rule is to be
construed strictly.
In view of the above, this petition succeeds. The impugned order
alongwith the seniority list dated 4.12.1990 are hereby quashed. It is
directed that the seniority of members of service at the level of Sub
Divisional Engineers of Civil Wing shall be determined on the basis of
quota by rotating the vacancies in the manner as determined vide
seniority lists (Annexures P-3 and P-5) as prescribed under Rule 6 of the
1965 Rules. Let the final seniority list be re-determined afresh and
published within a period of four months, in the light of the
observations/directions contained here-in-above.
(PERMOD KOHLI)
JUDGE
14.7.2009
MFK
NOTE:Whether to be referred to Reporter or not? YES
CWP NO.15794 OF 1990 13