{"id":4017,"date":"2009-07-14T00:00:00","date_gmt":"2009-07-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/er-b-r-bawa-and-others-vs-state-of-punjab-others-on-14-july-2009"},"modified":"2017-02-13T06:20:21","modified_gmt":"2017-02-13T00:50:21","slug":"er-b-r-bawa-and-others-vs-state-of-punjab-others-on-14-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/er-b-r-bawa-and-others-vs-state-of-punjab-others-on-14-july-2009","title":{"rendered":"Er.B.R.Bawa And Others vs State Of Punjab & Others on 14 July, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Er.B.R.Bawa And Others vs State Of Punjab & Others on 14 July, 2009<\/div>\n
CWP NO.15794 OF 1990                                 1\n\n\n    IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                  CHANDIGARH.\n\n\n\n                         DATE OF DECISION:14 .7.2009\n\n\n\n\nEr.B.R.Bawa and others                           ...Petitioners\n\n\n                        VERSUS\nState of Punjab & Others                         ...Respondents\n\n\n\n\n                         CORAM\n\n      HON'BLE MR.JUSTICE PERMOD KOHLI\n\n\nPRESENT: Mr.R.D.Bawa,           Advocate for the petitioners\n\n            Mr.BS Chahal,     DAG, Punjab\n\n            Mr.R.K.Sharma, Advocate\n\n\n\nPermod Kohli, J.\n<\/pre>\n
       Order dated 3.12.1990 whereby the final seniority list of Assistant<\/p>\n
Engineers as it stood on 30.10.1990 has been challenged in the present writ<\/p>\n
petition. The petitioners belong to Civil Wing of the Engineering Service<\/p>\n
and the relief claimed in the present petition is confined to Civil Wing of<\/p>\n
the Punjab Housing Development Board. It is admitted case of the parties<\/p>\n
that respondent-Corporation has not framed any separate rules governing<\/p>\n
the service conditions of its employees belonging to the Engineering Wing
\n CWP NO.15794 OF 1990                                  2<\/span><\/p>\n
and the Service rules, namely, Punjab Service of Engineers Class-II, P.W.D.<\/p>\n
(Building and Roads Branch) Rules, 1965 were adopted by the Board and<\/p>\n
the service conditions of the petitioners are governed and regulated by the<\/p>\n
aforesaid rules.\n<\/p>\n
      The petitioners were appointed as Assistant Engineers vide order<\/p>\n
dated 17.9.1981. Rule 6 of the 1965 Rules provides for different modes of<\/p>\n
recruitment of Engineers indicated therein. In a block of 40 vacancies, 26<\/p>\n
vacancies are earmarked for direct recruits, 8 by promotion from amongst<\/p>\n
the members of the Punjab PWD (B&R) Sectional Officers (Engg.) Service,<\/p>\n
3 by promotion from draftsmen members          and Tracers services, 4 by<\/p>\n
promotion from members of the Punjab PWD (B&R) Sectional Officers<\/p>\n
(Engineers). The rule further provides for shifting of the vacancies from<\/p>\n
some of the specified sources in the event of non-availability of suitable<\/p>\n
candidates. The seniority of the members of the service is regulated by Rule<\/p>\n
12. This rule, inter-alia provides for determination of the seniority of the<\/p>\n
members of the service by the order of appointment in service according to<\/p>\n
Rules 6, 8 and 9 irrespective of their date of joining. Under the 1st Proviso<\/p>\n
to Rule 12 (1), it is provided that in case of those officers whose probation<\/p>\n
is extended, the date of appointment shall be deemed to have been issued<\/p>\n
on date determined by adding to the original date extended period of<\/p>\n
probation. From the perusal of the aforesaid two Rules, it appears that the<\/p>\n
seniority of the members of service is to be governed on the basis of the<\/p>\n
quota fixed for each source and the specific roster point fixed for such<\/p>\n
source.\n<\/p>\n
      It has been pleaded in the writ petitions that in the Punjab Housing<\/p>\n
Board, there are three Engineering Wings- Assistant Engineers (Civil),
\n CWP NO.15794 OF 1990                                    3<\/span><\/p>\n
Assistant Engineers (Public Health) and Assistant Engineers (Electrical).<\/p>\n
Each wing has separate cadres and separate seniority. The present dispute<\/p>\n
relates to only the seniority in the Civil Wing. The three separate seniority<\/p>\n
lists have   been circulated by respondent no.2 for the cadre of Civil<\/p>\n
Engineers (Civil) Wing and other two wings referred to above. These<\/p>\n
tentative seniority lists were circulated on 31.7.1981 vide letter dated<\/p>\n
26.7.1983.\n<\/p>\n
      Vide the aforesaid Circular, objections were invited in respect of the<\/p>\n
tentative seniority list. On consideration of the objections, a final seniority<\/p>\n
list dated 3.4.1984 (Annexure P-3) was circulated. This seniority list clearly<\/p>\n
establishes that the seniority has been fixed by applying quota\/rota rule in<\/p>\n
accordance with Rules 6 and 12 of the Punjab Service of Engineers Class-II<\/p>\n
PWD B&R Branch Rules, 1965 (hereinafter referred to as “the 1965<\/p>\n
Rules”). As a matter of fact, the seniority has been fixed on the basis of<\/p>\n
roster points irrespective of the date of joining. Another tentative seniority<\/p>\n
list came to be issued in the year 1989 and the names of those persons who<\/p>\n
were appointed after the issuance of the first seniority list were also<\/p>\n
included but in the same manner. It is alleged that some persons with<\/p>\n
vested interests attempted to put pressure to fix the seniority according to<\/p>\n
the date of joining. Apprehending that the seniority list may be changed, the<\/p>\n
petitioners made a representation dated          21.2.1989 (Annexure P-4)<\/p>\n
requesting for maintaining the seniority, as per final seniority list dated<\/p>\n
3.4.1984 (Annexure P-3). The authorities, however, on consideration of<\/p>\n
various representations for and against the rota\/quota system, published an<\/p>\n
upto date tentative seniority list as it stood on 3.4.89 vide letter dated<\/p>\n
19.5.89 (Annexure P-5).\n<\/p>\n
 CWP NO.15794 OF 1990                                    4<\/span><\/p>\n
      It is alleged that   a new Housing Commissioner took over and<\/p>\n
attempts were made to disturb the above seniority. The petitioners again<\/p>\n
made a representation dated 8.8.1990 (Annexure P-6). Since the petitioners<\/p>\n
were apprehending change of the mode of fixation of seniority, they filed<\/p>\n
CWP No.12945 of 1990 (Er.K.K.Jain and others vs. State of Punjab and<\/a><\/p>\n
another) before this Court. The aforesaid writ petition was disposed of vide<\/p>\n
order dated 5.10.1990 with the following directions:-<\/p>\n
                  “After hearing the learned counsel for the petitioners we<\/p>\n
                  direct the respondents to decide the representation dated<\/p>\n
                  8.8.1990 Annexure P-6 to the writ petition, by passing a<\/p>\n
                  speaking order in accordance with law within two<\/p>\n
                  months. The petition stands disposed of accordingly.”<\/p><\/blockquote>\n
      Respondent no.2 considered the representation of the petitioner in the<\/p>\n
light of the aforesaid directions and rejected the same vide order dated<\/p>\n
4.12.1990 (Annexure P-8) and fixed the seniority on the basis of date of<\/p>\n
joining, ignoring the quota\/rota. Seniority lists (Annexures P-3 and P-5)<\/p>\n
earlier issued in accordance with the quota-rota have been altered. It is<\/p>\n
further alleged by the petitioners that even though the seniority vide order<\/p>\n
(Annexure P-8) has been fixed on the basis of date of joining, however, the<\/p>\n
rule of length of service has also not been adhered to. It is stated that<\/p>\n
appointees of the year 1979 in the cadre of Assistant Engineers (Civil)<\/p>\n
have been shown senior to appointees of the years, 1976, 1977 and 1978.<\/p>\n
Similarly, appointees of 1981 have been shown senior to the appointees of<\/p>\n
1978, 1979 and 1980. It is specifically alleged that one Engineer K.B.Passi<\/p>\n
who is an appointee of 22.11.1976 has been brought down because of<\/p>\n
extension of his probation period under proviso to Rule 12 of the 1965
\n CWP NO.15794 OF 1990                                  5<\/span><\/p>\n
Rules whereas Maninder Singh whose probation period was also extended<\/p>\n
and whose roster point was allotted to petitioner no.1, as is clear from<\/p>\n
Sr.No.18   and 25 of Annexure P-5, has been placed at Sr.No.18 and<\/p>\n
petitioner no.1 has been pushed down at Sr.No.40.\n<\/p>\n
      In sum and substance, the contention of the petitioners is that<\/p>\n
seniority is to be fixed on the basis of quota\/rota as envisaged under Rules<\/p>\n
6 and 12 of the 1965 Rules. From the perusal of the impugned order<\/p>\n
(Annexure P-8), it appears that the authorities have adopted       length of<\/p>\n
service as the mode of fixation of seniority on the plea that the rota\/quota<\/p>\n
system has broken down.\n<\/p>\n
      The respondents have defended and justified the impugned order<\/p>\n
(Annexure P-8) firstly on the ground that the persons who are senior to the<\/p>\n
petitioners and are likely to be affected, are not parties before this Court.<\/p>\n
Secondly, the seniority has been fixed after affording an opportunity of<\/p>\n
being to the petitioners and on the basis of the judgment of Hon’ble<\/p>\n
Supreme Court in the case of The Direct Recruit Class-II Engineering<\/p>\n
Officers’ Association and others v. State of Maharashtra and others<\/a>,<\/p>\n
AIR 1990 Supreme Court 1607. It is been further argued that since<\/p>\n
quota\/rota system has already broken down and no person under the roster<\/p>\n
point was eligible for promotion to the posts, hence, the appointments were<\/p>\n
made by direct recruitment on regular basis between 1978 to 1980 and thus<\/p>\n
quota\/rota system is not applicable. The respondents have placed reliance<\/p>\n
upon the judgment of the Hon’ble Supreme Court in the case of The Direct<\/p>\n
Recruit Class-II Engineering Officers’ Association (supra). In the<\/p>\n
aforesaid judgment, Hon’ble Supreme Court made following observations:-<\/p>\n
                         “44…..(E)Where the quota rule has broken down
\n CWP NO.15794 OF 1990                                     6<\/span><\/p>\n
                          and the appointments are made from one source in<\/p>\n
                          excess of the quota, but are made after following<\/p>\n
                          the procedure prescribed by the rules for the<\/p>\n
                          appointment, the appointees should not be pushed<\/p>\n
                          down below the appointees from the other source<\/p>\n
                          inducted in the service at a later date.<\/p>\n
                          (F)Where the rules permit the authorities to relax<\/p>\n
                          the provisions relating to the quota, ordinarily a<\/p>\n
                          presumption should be raised that there was such<\/p>\n
                          relaxation when there is a deviation from the quota<\/p>\n
                          rule…”<\/p><\/blockquote>\n
      In the case of      M.Subba Reddy and another vs. State Road<\/p>\n
Transport Corporation and others, 2004 (2) SCT 752, it has been held<\/p>\n
that rule of rota is inbuilt in the quota prescribed for direct recruits and for<\/p>\n
promotees and so long as the quota rule is in force between two sources,<\/p>\n
the Government cannot deviate from the same and the seniority of the<\/p>\n
promotees even if promoted prior in time against the vacancies meant for<\/p>\n
direct recruits could have to be brought down below the direct recruits and<\/p>\n
will be fixed on roster point of their quota when it became available.<\/p>\n
Similar view has been expressed in the case of Arvinder Singh Bains v.<\/p>\n
State of Punjab and others<\/a>, AIR 2006 Supreme Court 2265 wherein<\/p>\n
following observations have been made:-\n<\/p>\n
                          “58.We have also referred to the decisions<\/p>\n
                          rendered by this Court. This Court said rota and<\/p>\n
                          quota must necessarily be reflected in the seniority<\/p>\n
                          list and any seniority list prepared in violation of
\n CWP NO.15794 OF 1990                                       7<\/span><\/p>\n
                          rota and quota is bound to be negated. The action<\/p>\n
                          of the respondents in determining the seniority is<\/p>\n
                          clearly in total disregard of rota-quota prescribed<\/p>\n
                          in Rule 18 of the 1976 Rules. The action is<\/p>\n
                          therefore, clearly contrary to the law laid down by<\/p>\n
                          this Court. Thus we hold:\n<\/p><\/blockquote>\n
                          1.that the action of the State is contrary to the 1976<\/p>\n
                          rules;\n<\/p><\/blockquote>\n
                          2.the seniority under the 1976 Rules must be based<\/p>\n
                          on a collective interpretation of Rule 18 and Rule<\/p>\n
                          21 of the 1976 Rules;\n<\/p><\/blockquote>\n
                          3.the action of the authorities is negation of Rule<\/p>\n
                          18 of 1976 Rules in determining the seniority by<\/p>\n
                          the impugned order. Since the action is contrary to<\/p>\n
                          law laid down by this Court, we have no hesitation<\/p>\n
                          in allowing the appeal and grant the relief as<\/p>\n
                          prayed for by the appellant.”<\/p><\/blockquote>\n
      In the present case, Rule 6 of the 1965 Rules prescribes for the quota<\/p>\n
in the following manner:-\n<\/p>\n
“6.Recruitment to service (1): Recruitment to the service for cadre and ex-<\/p>\n
cadre post shall be made in the following manner only from the sources<\/p>\n
listed below in the promotions and the order indicated against a lot of every<\/p>\n
40 vacancies.<\/p>\n
\n\n      Method of recruitment        Proportion   Allocation to each source in a lot of\n                                                            40 vacancies\n1.Direct Appointment               26           5 6 5 5 5\n CWP NO.15794 OF 1990                                            8<\/span>\n\n      Method of recruitment             Proportion   Allocation to each source in a lot of\n                                                                 40 vacancies\n2.Promotion from the members of 8                    2 1 2 1 2\nthe Punjab PWD (B&R) Sectional\nOfficers (Engg.) Services\n3.Promotion      from draftsman 2                    1 - - 1 -\nmembers of the Draftsman and\ntracers services\n4.Promotion from members of the 4                    - 1 1 1 1\nPb. PWD (B&R) Sectional Officers\n(Engg.)\n5.Service and the Draftsman and\ntracer       service       possession\nqualifications      prescribed     in\nAppendix \"B\"\n                                        40       8 8 8 8 8\n                                        _____________________\n\n\n<\/pre>\n
(2)In case suitable candidates are not available from source no.4, the<\/p>\n
vacancies shall be filled by direct recruitment.\n<\/p>\n
(3)In case a candidate is not available from sources 1 and 3 and person has<\/p>\n
to be appointed, in public interest as a stop-gap arrangement from other than<\/p>\n
the allotted sources such a person shall be liable to be reverted to his<\/p>\n
original cadre when a candidate from the allotted source is available and the<\/p>\n
period of service rendered by such person will not be reckoned for the<\/p>\n
purpose of seniority.\n<\/p>\n
(4)The Government may fill a short term vacancy in the exigencies of public<\/p>\n
service, after recording specific reasons, for a period not exceeding six<\/p>\n
months in each case by local arrangement from among the members of the<\/p>\n
Punjab PWD B&R, Sectional Officers (Engg.) Service without resorting to<\/p>\n
the select list prepared.\n<\/p>\n
(5)No person except to the extent provided under sub rule (9).<\/p>\n
a)who is not substantive member of the PWD (Buildings & Roads Branch)<\/p>\n
Class II Service or a member of PSE (B&R) Class I Service in the junior<\/p>\n
scale on the date of enforcement of these rules.\n<\/p>\n
 CWP NO.15794 OF 1990                                  9<\/span><\/p>\n
b)who is not considered suitable for appointment to the service as provided<\/p>\n
in rule read with Appendix “G” shall hold the post of a Sub Divisional<\/p>\n
Officer even in an officiating capacity unless he is declared within a period<\/p>\n
of six months from the date of enforcement of these rules, as suitable for<\/p>\n
appointment to the service under the provisions of these rules.”<\/p>\n
      From the reading of the aforesaid Rule, it       is apparent that the<\/p>\n
recruitment to the cadre in the service is to be made from different sources<\/p>\n
and in the ratio prescribed there for against the slots earmarked for each<\/p>\n
source on rotation basis. Sub Rule (2) of Rule 6 permits the deviation of the<\/p>\n
vacancies from Source No.4 to direct recruits. However, in all other sources,<\/p>\n
the deviation could be temporary as stop-gap arrangement and when the<\/p>\n
eligible persons from the particular source are available, the      stop-gap<\/p>\n
promotees are to make way. The intention of the rule making authority is<\/p>\n
very clear i.e. to adhere to the quota\/rota prescribed therein. Seniority for<\/p>\n
the members of the service is to be regulated under Rule 12 of the 1965<\/p>\n
Rules which reads as under:-\n<\/p>\n
                         “12.SENIORITY<\/p>\n
                         (1)Except as provided in sub rule (5) of this rule<\/p>\n
                         relating to officers appointed by transfer, the<\/p>\n
                         seniority of the members of service shall be<\/p>\n
                         determined by the order of appointment in service<\/p>\n
                         according to rules 6, 8 and 9 irrespective of their<\/p>\n
                         date of joining.\n<\/p><\/blockquote>\n
                         Provided that:\n<\/p><\/blockquote>\n
                         Where the period of probation of an officer has<\/p>\n
                         been extended the order of appointment shall be
\n CWP NO.15794 OF 1990                                 10<\/span><\/p>\n
                       deemed to have issued on date determined by<\/p>\n
                       adding to the original date extended period          of<\/p>\n
                       probation.\n<\/p><\/blockquote>\n
                       2.The inter-se seniority of the members of the<\/p>\n
                       service shall be in order to recruitment provided<\/p>\n
                       under rule;\n<\/p><\/blockquote>\n
                       Provided that:\n<\/p><\/blockquote>\n
                       in case an officer does not join this appointment<\/p>\n
                       within six months of the date of order of<\/p>\n
                       appointment his seniority shall be determined by<\/p>\n
                       Govt. on an ad hoc basis after taking into<\/p>\n
                       consideration all the circumstances of the case.<\/p>\n<\/blockquote>\n
                       3.The inter-se seniority within the group of direct<\/p>\n
                       recruitment shall be as in the merit under Rule 8.<\/p>\n<\/blockquote>\n
                       4.The inter-se seniority within the group of<\/p>\n
                       promoted officers (from particular source) shall be<\/p>\n
                       as in the list approved under rule 9.<\/p>\n<\/blockquote>\n
                       5.In the case of an officer appointed by transfer as<\/p>\n
                       an Assistant Engineer, while normally he would be<\/p>\n
                       placed junior to all the officers appointed directly<\/p>\n
                       or by promotion as Assistant Engineers.<\/p>\n
                       In a particular year the Govt. may in the interest of<\/p>\n
                       the public service and taking into consideration all<\/p>\n
                       the circumstances of the case, fix the seniority on<\/p>\n
                       an ad hoc basis.\n<\/p><\/blockquote>\n
                       Provided that the seniority thus fixed shall, in no
\n CWP NO.15794 OF 1990                                      11<\/span><\/p>\n
                          case, be more favourable than the seniority<\/p>\n
                          determined after his credit for the period of service<\/p>\n
                          rendered by him in previous appointment as<\/p>\n
                          Assistant Engineer or on a           post equivalent or<\/p>\n
                          greater responsibility. The decision of Government<\/p>\n
                          on this point shall be final.\n<\/p><\/blockquote>\n
                          Provided further that the provisions of proviso to<\/p>\n
                          sub rule (1) shall apply to such an officer if his<\/p>\n
                          period of probation is extended.”<\/p><\/blockquote>\n
      Sub Rule (1) of Rule 12 clearly prescribes that the seniority shall be<\/p>\n
determined by order of appointment in the service according to Rules 6, 8<\/p>\n
and 9 irrespective of the date of joining. Sub Rule (2) further lays down the<\/p>\n
concept of rota and quota by providing that the inter se seniority of the<\/p>\n
members of service shall be in the order to recruitment provided under the<\/p>\n
rule. The rules provide for recruitment from different sources and in the<\/p>\n
ratio prescribed therein as is evident from Rule 6 and thus, the mode of<\/p>\n
recruitment and the quota prescribed there for is to be applied for<\/p>\n
determining the seniority in the cadre of service. In the case of M.Subba<\/p>\n
Reddy (supra), it has also been laid down that where there is inaction on<\/p>\n
the part of the Government or the employer or imposed ban on direct<\/p>\n
recruitment, in filling up the posts meant for direct recruits, it cannot be held<\/p>\n
that the quota has broken down. The plea of the respondents that the<\/p>\n
seniority is to be fixed on the basis of the date of joining and length of<\/p>\n
service because the quota-rota system has broken down, is contrary to the<\/p>\n
mandate of Rules 6 and 12 of the 1965 Rules. It is settled law that once the<\/p>\n
Rule prescribes the quota, the same is to be adhered to as is the ratio of
\n CWP NO.15794 OF 1990                                       12<\/span><\/p>\n
judgments referred to here-in-above. Reliance placed upon the judgment of<\/p>\n
the Hon’ble Apex Court in the case of            The Direct Recruit Class-II<\/p>\n
Engineering Officers’ Association (supra) is mis-placed. Deviation is<\/p>\n
permissible if rule permits. Sub rule (2) of Rule 6 allows deviation only<\/p>\n
from source 4 to source 1 (direct recruitment). No further deviation is<\/p>\n
permitted. To the contrary sub rules 3 & 4 prohibit deviation of quota. It is<\/p>\n
also significant to note that slots are fixed for each source. Rule is to be<\/p>\n
construed strictly.\n<\/p>\n
      In view of the above, this petition succeeds. The impugned order<\/p>\n
alongwith the seniority list dated 4.12.1990 are hereby          quashed. It is<\/p>\n
directed that the seniority of members of service at the level of Sub<\/p>\n
Divisional Engineers of Civil Wing shall be determined on the basis of<\/p>\n
quota by rotating the       vacancies in the      manner     as determined vide<\/p>\n
seniority lists (Annexures P-3 and P-5) as prescribed under Rule 6 of the<\/p>\n
1965 Rules. Let the final seniority list be re-determined afresh           and<\/p>\n
published within a period of four months,                  in the light of the<\/p>\n
observations\/directions contained here-in-above.<\/p>\n
                                                      (PERMOD KOHLI)
\n                                                          JUDGE<\/p>\n
 14.7.2009
\nMFK<\/p>\n
NOTE:Whether to be referred to Reporter or not? YES
\n CWP NO.15794 OF 1990   13<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Er.B.R.Bawa And Others vs State Of Punjab & Others on 14 July, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-4017","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nEr.B.R.Bawa And Others vs State Of Punjab & Others on 14 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/er-b-r-bawa-and-others-vs-state-of-punjab-others-on-14-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Er.B.R.Bawa And Others vs State Of Punjab & Others on 14 July, 2009 - 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