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.
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