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citation codes
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  • Rule 6(i)(g) of the aforesaid Rules,
  • Rule 6(i)(g) of these Rules 33%
  • Service Class II) Rules, 1966,
  • rule 6(g) of these Rules, 33%
  • rule 10 of the Rules.6.
  • Rule 10 of the Rules
  • rule 6(g)
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
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Acts
  • Rule 6(i)(g) of the aforesaid Rules,
  • Rule 6(i)(g) of these Rules 33%
  • Service Class II) Rules, 1966,
  • rule 6(g) of these Rules, 33%
  • rule 10 of the Rules.6.
  • Rule 10 of the Rules
  • rule 6(g)
Smart Summary

Factual and Procedural Background

This appeal under Clause X of the Letters Patent was filed by S.B.S. Virk and Ajmer Singh Brar against a Single Judge's judgment dated 2 January 1978, which allowed Civil Writ Petition No. 786 of 1974 and quashed an impugned seniority list (Annexure E‑1).

The basic factual matrix (as narrated in the Single Judge's judgment and reproduced in this opinion) is:

  • The posts of Assistant Directors and District Food and Supplies Controllers were treated as equivalent; nomenclature differed by office or field posting.
  • The private respondents (promotees) were selected as District Food and Supplies Controllers on 16 September 1968 and 18 September 1968 respectively.
  • The appellants are direct recruits appointed on probation to the post of District Food and Supplies Controllers on 21 January 1970 and 15 February 1971 respectively.
  • Initially, a seniority list as on 19 December 1968 (circulated 13 September 1972) showed the private respondents in senior positions and did not mention the appellants. Subsequently, on 1 December 1972 a revised final seniority list as on 10 June 1971 (Annexure E‑1) placed the private respondents junior to the appellants.
  • The private respondents filed C.W.P. No. 786 of 1974 to quash the revised seniority list (Annexure E‑1); the Single Judge allowed that petition. The present proceedings are an appeal from that Single Judge's order.

Legal Issues Presented

  1. Whether 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) of the Punjab Food and Supplies Department (State Service, Class II) Rules, 1966, irrespective of the 33% quota for direct appointment under rule 6(g).

Arguments of the Parties

Appellants' Arguments (Counsel: Mr. Sibal)

  • The appellants (direct recruits) contended they were entitled to seniority over the promotees because promotees were occupying posts that belonged to the 1/3 quota for direct recruits in an officiating capacity; when direct recruits were appointed, the promotees had to make room and thus could not claim seniority based on that officiating period.
  • Appellants accepted the legal proposition in Narender Singh Rao but contended the Single Judge misapplied that law to the facts of the present case.
  • Reliance was placed on a recent Supreme Court judgment, B.S. Yadav v. State of Haryana, as supportive of appellants' position.

Private Respondents' Arguments (Counsel: Mr. Anand Swaroop; adopted by A.A.G. Mr. A.S. Sandhu)

  • The private respondents, being promotees, claimed seniority on the basis of their continuous appointment to the service; since they entered earlier (1968) they were senior to the appellants who joined only in 1970 and 1971.
  • They argued the appellants, as later appointees, could not rank senior to them.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Narender Singh Rao v. The State of Haryana (Full Bench of this Court) Treatment of inter‑se seniority and the operation of Rule 10 vis‑à‑vis quota provisions (used by the Single Judge). The Single Judge had relied on this Full Bench decision to hold Rule 10 governs inter‑se seniority. The Division Bench in this appeal also referred to the Full Bench decision and found that its own conclusion (that promotive officiating service in posts belonging to direct‑recruit quota cannot be counted) is consistent with Narender Singh Rao.
B.S. Yadav v. State of Haryana (Supreme Court) Cited by appellants as supportive authority for the proposition advanced by them concerning seniority and quota/officiation issues. The court stated that the view it adopted in this appeal "finds full support" from the Supreme Court judgment in B.S. Yadav; this authority was used to bolster the conclusion that officiating service in direct‑quota posts should not count for continuous appointment seniority.
AIR 1967 Supreme Court 1427 Referenced in written statements and pleadings concerning the proposition that the quota system is linked with the seniority of direct recruits. The written statement and one party's pleadings invoked this report as illustrating the linkage between quota and seniority. The opinion records that parties referred to AIR 1967 SC 1427 in support of arguments about quota and seniority; the court considered those pleadings in its analysis (as part of the material showing that promotees had occupied direct‑quota posts).

Court's Reasoning and Analysis

The Division Bench (Prem Chand Jain, J., with Surinder Singh, J. concurring) undertook the following analysis, staying within the recorded facts and pleadings:

  1. The court first reviewed the admitted facts: that the promotees (private respondents) were appointed earlier (September 1968) and the appellants (direct recruits) were appointed later (1970 and 1971).
  2. It examined the State's written statement (paras 10 and 12 and specified grounds) which effectively admitted that the 33% quota for direct recruitment provided in rule 6(g) was not strictly observed, that vacancies had been filled by promotion, and that when direct recruits were later appointed they were assigned seniority "against the posts which would have gone to them if the quota system had been strictly followed." The written statement also described earlier promotions as provisional where they occupied posts meant for direct recruits.
  3. The court noted the central legal question was whether inter‑se seniority is governed exclusively by dates of continuous appointment (Rule 10(2)) irrespective of the quota under Rule 6(g).
  4. Applying the facts to the legal framework, the court observed that the writ‑petitioners (promotees) were occupying posts that belonged to the direct‑recruit quota in an officiating capacity. The court emphasized that there was no pleading or argument by the writ‑petitioners that the promotee quota remained unexhausted and that they had been appointed to posts within their own promotee quota.
  5. Because the promotees had occupied direct‑quota posts only in an officiating capacity, the court held (on the basis of the authorities it cited and the pleadings) that the period spent in such officiating appointments could not legally be counted towards continuity of appointment for seniority purposes.
  6. The court expressly stated that this view "finds full support" in the Full Bench decision in Narender Singh Rao and the Supreme Court decision in B.S. Yadav. On that basis, it concluded that the seniority assigned by the appropriate authority to the appellants (direct recruits) was correct.
  7. Consequently, the court allowed the appeal, set aside the Single Judge's order which had quashed the revised seniority list, and dismissed the writ petition.

The court made no order as to costs. Surinder Singh, J. concurred with the judgment.

Holding and Implications

Holding (core ruling):

APPEAL ALLOWED; the Single Judge's judgment dated 2 January 1978 is set aside and Civil Writ Petition No. 786 of 1974 is dismissed.

Immediate consequences for the parties:

  • The seniority determination that placed the appellants (direct recruits) above the private respondents is upheld; the revised seniority list (Annexure E‑1) stands as determined by the appropriate authority.
  • No order as to costs was made.

Broader implications:

The opinion applies and relies on existing authorities (Narender Singh Rao and B.S. Yadav) to resolve a dispute between promotional officiation and direct‑recruit quota entitlements. The judgment focuses on the direct effect on the parties and does not purport to establish a novel principle beyond the applications of the cited precedents; the court expressly framed its decision as consistent with those prior authorities.

    S.B.S Virk And Others () v. Sh. J.S Bagga And Another (S).

    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.

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    Comments

    S.B.S Virk And Others () v. Sh. J.S Bagga And Another (S).
    (Feb 11, 1982)