V.S. Aggarwal, J. - (1.) BY this common judgment we propose to dispose of Civil Writ Petition Nos. 7696 and 15941 of 2000 as the questions of law and facts involved in both these writ petitions are identical.
(2.) THE facts as conjoined from Civil Writ Petition No. 15941 of 2000 titled Sadhu Singh and another v. State of Haryana and others are that Sadhu Singh petitioner was recruited as Clerk on 9,8.1971. He was promoted as Assistant on 2.5.1977 and Depmy Superintendent on 21.3.1990. B.L. Grover, petitioner No. 2, was recruited as Clerk on 12.8.1971. He was promoted as Assistant on 28.7.1977 and as Deputy Superintendent on 23 -11.1990. In the Haryana State, upto the level of Deputy Superintendent, which is a Class - III post, there is a policy of reservation and not beyond that. Both the petitioners had since been promoted as Superintendent on 3.4.1991 and 8.7.1991 respectively. It is asserted that after the decision of the Supreme Court in the case of Union of India v. Vir Pal Singh Chauhan : 1995(6) SCC 684 : 1995(4)SCT 695 (SC), followed by subsequent decision of the Supreme Court in the case of Ajit Singh -II v. State of Punjab : 1999(7) SCC 209 : 1999(4) SCT I (SC) and Sube Singh Bahmani v. State of Haryana : 1999(8) SCC 213 : 1999(4) SCT 328 (SC), the respondent State had drawn the seniority list. According to the petitioners, they are senior to all the respondents except respondents No. 2 to 10 who have become senior by virtue of catch up rule. The seniority list otherwise so prepared is stated to be contrary to the judgment of the Supreme Court. The grievance of the petitioners is that the seniority list dated 17.5.2000 that has been finalised by the State of Haryana giving seniority to 11 the respondents i.e. respondents No. 2 to 78, is contrary to the judgments of the Supreme Court because respondents No. 11 to 78 had not reached the level of Deputy Superintendent when the petitioners were promoted as Superintendent and thereafter as Under Secretary in the State of Haryana. It has been mentioned that the State of Haryana has promoted A.C. Kapil, respondent No. 13 and B.R. Chawla, respondent No. 14 besides Dhani Ram, respondent No. 23, who were otherwise junior to the petitioners. They had not been -promoted as Deputy Superintendent when petitioner No. 1 was promoted as Superintendent on 3.4.1991. Similarly, it is pointed out that Som Parkash Sharma, respondent No. 26 and S.N. Chugh, respondent No. 27, were junior to the petitioners and had not been promoted as Deputy Superintendent by the time petitioner No. 2 had taken over as Superintendent. By way of illustration, the petitioners have stated that so far as petitioner No. 1 is concerned, by the principle of catch up rule, only the persons mentioned as respondents No. 1 to 10 i.e. R.D. Gupta to Soma Devi, would catch up. So far as the seniority of petitioner No. 1 is concerned, it has been demonstrated as under : JUDGEMENT_149_LAWS(P&H)1_2001.html 4. In addition to that, the grievance of the petitioners is that respondent No. 1 had passed order dated 6.10.2000 whereby the petitioners have been reverted to the rank of Superintendent on the basis of the judgments of the Supreme Court referred to above. The petitioners claimed That, in fact, this is misreading of the judgment and they are senior to other private respondents and the order is being questioned in the present writ petition. 5. In the connected writ petition filed by Sammat Singh and others, identical questions have been raised therein. The seniority list so drawn. as referred to above, is being assailed. 6. Needless to state that both the writ petitions are being contested. All the respondents claimed that there is no merit in the contention of the petitioners. They assert that, as per petitioners, in the writ petition filed by Sadhu Singh and another, respondents upto respondent No. 14 would regain seniority over the petitioners, but that is not correct, it is asserted that petitioner No. 1 Sadhu Singh was promoted as Superintendent on 4.3.1991 and petitioner No. 2 B.L. Grover was promoted as Superintendent on 8.7.1991. Thereafter, many other respondents, who were general candidates, had become senior by virtue of the principle of catch up because the Supreme Court has held that in cases where the reserved category candidate had gone upto Level -4 (Superintendent) ignoring the seniority of senior general candidate at Level -3, the seniority at Level -4 has to be refixed on the basis of when the time of reserved candidate for promotion would have come. The respondent - State has claimed that if had strictly followed the said rule enunciated in the ease of Ajit Singh -II (supra). It has been pointed out that petitioner No. 1 was promoted as Assistant by way of accelerated promotion. He stole a march over 13 seniors of general category. Thereafter, he was promoted as Deputy Superintendent by way of accelerated promotion. He crossed over 158 general candidates who were senior to him at Level -2. There is no reservation at Level -4 i.e. of Superintendent. Promotion to Level -4 is a consequence of seniority at Level -3. In terms of the said decision, at Level -3 the seniority of Sadhu Singh petitioner had been reviewed and refixed by placing general candidates over him time and again as and when they reached at Level -3. Sadhu Singh petitioner was promoted as Superintendent on 3.4.1991 on the basis of accelerated seniority ignoring the claim of general candidates who would have been promoted if the case of senior general candidate was considered at Level -3. At Level -4, seniority of Sadhu Singh -petitioner had to be reviewed and refixed as and when general category candidate will reach at Level -4 in terms of the aforesaid law laid down by the Supreme Court. Promotions made before 1.3.1996 had to be protected but seniority has to be refixed. Since Sadhu Singh -petitioner was promoted to the post of Superintendent on 3.4.1991, therefore, that promotion is being protected. In similar manner, it as stated that petitioner No. 2 would lose his seniority though his promotion as Superintendent is being protected. 7. It has further been pointed out that promotion of petitioner No. 1 to the post of Deputy Superintendent was made in excess of reservation quota on account of misapplication of roster and accelerated seniority. He was, therefore, erroneously promoted as Under Secretary on 19.2.1997 i.e. after 1.3.1996 and, therefore, he is liable to be reverted. Similar was the position of petitioner No. 2. Since they both were promoted as Superintendent before 1.3.1996, therefore, they were not being reverted to the post of Deputy Superintendent. Consequently, the assertions of the petitioners have been controverted. 8. During the course of arguments, it was pointed out that petitioners Sadhu Singh and another had earlier tiled a writ petition which was dismissed and, therefore, the present petition is not maintainable. During the arguments, it transpired that by that time the impugned order reverting both the petitioners had not been passed. Necessarily, it was premature. Therefore, we are of the considered opinion that the present writ petition is not barred by the principle of res judicata or even constructive res judicata. 9. Sh. Ashok Aggarwal, Senior Advocate appearing on behalf of the petitioners, besides challenging the impugned order, had argued vehemently that the principles of natural justice have been violated. He urged that show cause notice was defective and, secondly, no proper hearing even had been given. 10. There is no controversy that the principles of audi alteram partem are well recognised in all civilised countries and still more in our jurisprudence. However, whenever such a question arises, it has to be examined on the touchstone of prejudice. If any prejudice is caused, obviously, the order could not be sustained. But merely if there is a slight defect in the show cause notice but the person concerned was fully conscious of the nature of the controversy and he contests it knowing well as to which controversy he has to contest, it would be totally not proper to state that the principles of natural justice have been violated.
(8.) HEREIN , a show cause notice, indeed, had been served and the same had been contested. It is not shown as. to what prejudice, if any, had been caused. In the absence of it being shown as to how the petitioners could not defend themselves properly, we find no reason to hold that the show cause notice had caused prejudice and, therefore, should be quashed. Otherwise also, during the course of arguments, all that was to be urged had been argued before us. The arguments were heard at length. The controversy was the same which was to be raised at that time. Therefore, we deem it unnecessary to relegate them back in any event to the authorities. Looking at from eilher angle, the said argument so much thought of by the learned Counsel is of no avail. Reverting back to the main controversy in the present case, we deem it necessary to state that our task has become easy because we are basically concerned with the pronouncements of the Supreme Court. Concedently, from either end the questions have to be considered in the light of the decisions of the Supreme Court in the cases of R.K. Sabltarwal and others v. Stale of Punjab and others, 1995(2) R S J 895 :, 1995(2) SCT 646 (SC)), Vir Pal Chauban's case (supra); Ajit Singh -II's case (supra); and that of Sube Singh Balimani and others v. State of Haryana, 1994(4) R S J 171. We must mention at this stage that all that we require to see is as to whether the seniority list and the impugned order in question have been passed keeping in view the principles enunciated in the abovesaid pronouncements or not. Since the matter in controversy had already been adjudicated by the Supreme Court, we have nothing to add except to see the proper implementation thereto.;