Prem Chand Jain, J.:— S.B.S Virk and Ajmer Singh Brar have filed this appeal under Clause X of the Letters Patent, against the judgment of a learned Single Judge of this Court, dated 2nd January, 1978, by which Civil Writ Petition No. 786 of 1974, filed by the private respondents, was allowed and the impugned seniority list was quashed.
2. Though detailed facts are gives in the judgment of the learned Single Judge yet certain salient features may be noticed, which read as under. The posts of Assistant Directors and District Food and Supplies Controllers are identical and equivalent, the sole difference in nomenclature Page: 721having relevance to the fact whether the individual incumbent is working in the office or in the field. The private respondents are promotees who were selected for the posts of District Food and Supplies Controllers on the 16th September, 1968 and the 18th September, 1968, respectively. On the other hand, the appellants are direct recruits to the post of District Food and Supplies Controllers and were appointed on probation thereto on the 21st January, 1970 and 15th February, 1971, respectively. In the petition the private respondents have set up a case that they had completed the probationary period of one year already even at the time when the appellants were first appointed to the service on probation and in any case they had completed the maximum period of probation on the 16th September, 1971 and 18th September, 1971, respectively and must, therefore, be deemed as confirmed in the posts they were holding It was further claimed by the private respondent that they having been appointed as District Food and Supplies Controllers earlier than the appellants, are, therefore, senior to them, because the issue of seniority is governed entirely by the dates of their continuous appointments to the posts. Accordingly, the State of Punjab, respondent No 1, issued the final seniority list of District Food and Supplies Controllers/Assistant Directors Food and Supplies, as it stood on the 19th December, 1968 on the 13th September, 1972, Annexure D-1, wherein the name of respondent No. 2 was shown at Serial No. 23 and that of respondent No 1 at Serial No. 21. The appellants being patently junior to the respondents, did not even find any mention in the said seniority list. However, later vide letter dated 1st December, 1972, a revised seniority list (Annexure E-1) was circulated as the final seniority list as on the 10th June, 1971 and therein surprisingly both the respondents were shown as junior to the appellants. It was in these circumstances that the respondents sought the quashing of the revised seniority list (Annexure E-1) by filing C.W.P 786 of 1974.
3. In the written statement filed on behalf of the State, the factual position is virtually admitted. The stand taken in paragraph 10 thereof, however, is that the quota rule for reserving 33 per cent posts for direct recruitment was not strictly observed and the vacancies were filled in by a proeess of promotion. The posts meant for direct recruitment were filled up at a later stage by appointing appellants through the Punjab Public Service Commission. They were, therefore, assigned the seniority against the posts which would have gone to then if the quota system had been strictly followed. The quota system is limited up with the seniority of direct recruitment. In para 12, the stand taken in para 10 has been reiterated by averring that the posts of District Food and Supplies Controllers meant for direct recruits were filled up at a later stage and that the seniority has been assigned to the appellants under the quota system.
4. The question posed before the learned Single Judge was whether the inter-se seniority of District Food and Supplies Controllers is governed exclusively by the dates of their continuous appointment to the post by virtue of Rule 10(2) and irrespective of the quota of 33 per cent for their direct appointment under rule 6(g) of the Punjab Food and Supplies Department. (State Service, Class IT) Rules, 1966 (hereinafter referred to as the Rules)?
5. The learned Single Judge, as is evident from his judgment on the basis of the Full Bench judgment of this Court in Narender Singh Rao v. The State of Haryana (1) held that Rule 10 of the Rules directly govern the issue of seniority inter-se in the present case to the exclusion of the quota Page: 722rule for direct recruitment to the service laid down in rule 6(g) thereof. Consequently, as earlier observed, the writ petition was allowed and the i???ugned seniority list (Annexure E-1) was quashed, with a direction to respondent No. 1 to determine the seniority of the respondents strictly tinder Rule 10 of the Rules.
6. While challenging the correctness of the impugned judgment under appeal, what is contended by Mr. Sibal, learned counsel, is t???t the appellants are entitled to claim seniority over and above the pet???oners-respondents on the ground that the promotees, who were entitled only to ⅔rd quota in the service, were even occupying the posts out of ⅓rd quota of the direct recruits, that as sufficient number of direct recruits were not available, the posts belonging to the quota of direct recruits were filled by promotees who were occupying those posts in officiating capacity and that in the event of the appointment of direct recruits, the promotees had to make room for the direct recruits against the posts available to them in their quota the learned counsel further submit that he has no quarrel with the proposition laid down in Narender Singh Rao's case (supra), but what is sought to be argued by Mr. Sibal is that the learned Single Judge has not applied the law laid down therein correctly to the facts of the case in hand. Mr. Sibal, learned counsel for the appellants, has drawn our attention to the latest judgment of the Supreme Court in B.S Yadav v. State of Haryana (2) in support of his contentions.
7. On the other hand, it is submitted by Mr. Anand Swaroop, learned counsel appearing for the private respondents, whose contentions have been adopted by Mr. A.S Sandhu, Additional Advocate General, Punjab, that the private respondents having been promoted to the service were entitled to claim seniority on the basis of their continuous appointment; that the appellants who entered in the service in the years 1970 and 1971 were far junior to the private respondents and that they (the appellants) could in no case rank senior to the writ-petitioners.
8. After giving our thoughtful consideration to the entire matter, we find considerable force in the contentions of Mr. Sibal, learned counsel for the appellants.
9. Though in the earlier part of the judgment, certain admitted facts have been narrated, yet in order to appreciate correctly the contentions of Mr. Sibal, it will be necessary at this stage to refer to certain paragraphs of ???e written statement. Paras 10, 12 and grounds (i) to (iii), (v) and (vi) of the written statement filed by the Deputy Secretary to Government, Punjab, on behalf of respondent No. 1 read as under:—
“10. The Punjab Food and Supplies Department (State Service Class II) Rules, 1966, were published on 22-3-1966. As provided in rule 6(g) of these Rules, 33% posts of District Food and Supplies Controllers are reserved for direct recruitment. However, the quota rules was not observed strictly and vacancies were filled up by the process of promotion. The posts meant for direct recruitment were filled up at a later stage by appointing respondents No. 2 and 3 through the Punjab Public Service Commission. They were, therefore, assigned the seniority against the posts which would have gone to them if the quota system had been strictly followed. The quota system is linked up with seniority of direct recruitment. In this connection reference is invited to AIR 1967 Supreme Court 1427.
12. As already explained in para 10 above, the posts of District Food and Supplies Controller meant for direct recruits were filled up at a later stage. The seniority has been assigned to respon dent Nos. 2 and 3 under the quota system.
Grounds (i) to (iii):
Respondents Nos. 2 and 3 have been given seniority at the correct places against the posts meant for direct recruits under the quota rule as 33% posts of District Food and Supplies Controllers are to be filled up by direct appointment.
(v) & (vi)…. As already stated against para 10, the direct recr???itment was made by the Department at a belated stage. The promotions made against the posts meant for direct recruits were therefore, provisional. Moreover, the promotions of the petitioners from Class III to Class II were approved by the Punjab Public Service Commission on 29-3-1974.”
10. In the written statement filed on behalf of the appellant No. 1 para 11 and ground (iii) need specific mention which are to the following effect:—
“11. The averments made in para No. 11 are not correct and are denied. The deponent and Ajmer Singh Brar, respondent No. 3, in the above noted writ petition have been assigned their seniority against the direct recruitment quota post. The Punjab Food and Supplies Department (State Service Class II) Rules, 196???, were published on 22nd March, 1966. As provided in Rule 6(i)(g) of these Rules 33% posts of District Food and Supplies Controllers are, reserved lor the direct recruits. The Food and Supplies Department, Punjab did not observe this quota system and filled up the posts of District Food and Supplies Controllers by giving promotion to the officials working in the Department. Even against the posts reserved for direct recruits, pro???otees were appointed the Government has no discretion to alter the quota system fixed under Rule 6(i)(g) of the aforesaid Rules, and it could not deviate from those quota Rules, according to the exigencies of the situation or at its own will or pleasure. In other words, the quota system is inextractably round up with the seniority of the direct recruits. In this behalf, reference is invited to AIR 1967 S.C 1427. The posts meant for direct recruitment were filled up at a belated stage by a???pointing respondents No. 2 and 3 through the Punjab Public Service Commission and they have been assigned the seniority against the posts which would have gone to them if the quota system had not been violated by the Department.
Ground:
(iii) The averments made in this sub-para are incorrect and are denied. The action of respondent No. 1 is not arbitrary nor discriminatory but in accordance with law and specific Rules.
The petitioners had earlier usurped the quota of direct recruits and when the appointments were made by the direct recruitment, the petitioners were put at their proper places.”
11. From a bare perusal of the aforesaid replies, it would be evident that the writ petitioners were manning the posts in the service, which belonged to the quota of the direct recruits. In this situation, their appointment, to those posts would be officiating appointment. In the writ petition it has now here been pleaded nor has it been argued before us, that the quota of the promotees did not stand exhausted and that posts in their quota were still available and that the writ-petitioners were appointed against those posts. If this had been the stand of the writ-petitioners, then certainly the law laid down in Narender Singh Rao's case (supra) was beneficial to them. Moreover, in the instant case, the question of rota does not arise at all. The appellants are only pleading that they had been rightly assigned seniority over and above the writ-petitioners as on their appointment the writ (petitioners, who were occupying the posts of direct recruits in officiating capacity, had to make room for them. The appellants are not claiming that they were to get seniority by resorting to the rotational system. If the writ-petitioners had not occupied the posts out of the quota of direct recruits, then certainly the seniority assigned to them could be justified, but the promotees (writ-petitioners) cannot steal a march over the appellants and have double benefit by first occupying the posts belonging to the quota of direct recruits and then claiming seniority over and above them, on the plea that they would rank senior as their period of continuous appointment in service is more than that of the appellants. As earlier observed the writ-petitioners occupied the posts out of the quota of the direct recruits, in an officiating capacity and that period cannot legally be counted towards the period of their continuous appointment. The view which we are taking finds full support from the Full Bench judgment of this Court in Narender Singh Rao's case (supra) and of the Supreme Court in B.S Yadav's case (supra). In this view of the matter, we hold that the seniority of the appellants was rightly determined by the appropriate authority and that the respondents (writ-petitioners) have failed to make out any case for interference. For the reasons recorded above, we allow this appeal, set aside the judgment of the learned Single Judge and dismiss the writ petition, but in the circumstances of the case, make no order as to costs.
Surinder Singh, J.:— I agree.