G.S. Singhvi, J. - (1.) In these petitions, the petitioners have prayed for quashing seniority list of the officers of Punjab Civil Service (Executive Branch) [for short, PCS (Executive Branch)] circulated vide order dated 18/1.9.3.1993 of Chief Secretary, Punjab and for issuance of a direction to respondent No. 1 to fix the seniority of the officers as per the roster points specified in Rule 18 of the Punjab Civil Service (Executive Branch) Rules, 1976 (for short, the Rules). In C.W.P. Nos. 8957 and 5802 of 1993, the petitioners have further prayed for directing the official respondents to fix their seniority above respondents No. 4 and 5 in terms of Rule 21-C of the Rules.
(2.) For deciding the issues arising in these petitions, we may notice the relevant facts. C.W.P. No. 8957 of 1993 Petitioner-Khushi Ram joined service as Naib Tehsildar on 10.4.1978. He was promoted as Tehsildar on 8.1.1982 but was reverted after about 4 months due to non-availability of vacant post. He was re-promoted as Tehsildar on 24.11.1982. In April, 1994, the Government of Punjab, Department of Revenue, circulated memo dated 9.4.1984 to all the Commissioners in the State for sending the names of eligible and suitable Tehsildars and Naib Tehsildars for being considered for promotion to the PCS (Executive Branch) from Register A-I in accordance with the provisions of the Rules against the following vacancies of the years 1978 to 1982 : JUDGEMENT_173_LAWS(P&H)8_2003_1.html The petitioner's name was recommended by Deputy Commissioner, Ropar and other higher authorities. Similarly, the Deputy Commissioners of other districts recommended the names of suitable candidates of their respective districts. After processing the names of candidates recommended by the Deputy Commissioners the State Government forwarded the same to Punjab Public Service Commission (for short, 'the Commission'). Similarly, the lists of candidates recommended by different authorities for appointment to PCS (Executive Branch) from registers A-II, A-III and C were forwarded to the Commission. On 5.11.1984, the Commission prepared lists of candidates found suitable for appointment against the vacancies of different registers and forwarded the same to the State Government. The names of the selected candidates were entered in the respective registers on 13.11.1984 in terms of Rule 8 of the Rules. However, they were appointed on different dates, as is evident from the statement given below : JUDGEMENT_173_LAWS(P&H)8_2003_2.html The appointment of the petitioner and other candidates selected against the vacancies earmarked for register A-I were delayed on account of stay order dated 18.10.1984 passed by the High Court in C.W.P. No. 4730 of 1984 Tek Chand and another v. State of Punjab and others. The grievance made by Tek Singh and another was that even though the names of Sarvshri Bhagwant Singh, Amarjit Singh and Shardool Singh had been forwarded to the Commission despite delayed receipt of the recommendations made by the concerned authorities their names were not sent to the Commission. The High court allowed the process of selection to continue but directed that no appointment be made from Register A-I. In the course of hearing of the writ petition, the learned Additional Advocate General, Punjab gave an undertaking that names of the petitioners will be sent to the Commission and in case they are selected, their inter se seniority shall be determined afresh. In view of his statement, counsel for the petitioners prayed for withdrawal of the writ petition. Accordingly, the writ petition was dismissed by the court on 7.12.1984 by passing the following order:- "Mr. Sandhu, learned Additional Advocate General states at the Bar that six posts are still available; that against these six posts, the names of the petitioners shall be sent to the Punjab Public Service Commission along with the names of four others, whose suitability shall be adjudged by the Financial Commissioner and that in case the petitioners and others are selected by the Commission, then inter se seniority along with other persons, who have already been selected by the Commission shall be determined afresh. In view of what Mr. Sandhu has stated, Mr. Kuldip Singh, Senior Advocate states that this petition may be dismissed as withdrawn. We order accordingly. However, before parting with the order, it may be made clear that the Financial Commissioner has not to adjudge the suitability of the petitioners afresh and their names have to be sent to the Commission straightaway, as has been stated by the learned Additional Advocate General." After the decision of the writ petition filed by Tek Chand and another and similar petition bearing No. 5416 of 1984 filed by Hardharampal Garg and another, the petitioner and others selected against the vacancies earmarked for Register A-I were appointed vide order dated 20.12.1984. In the meanwhile, the State Government initiated the process for considering the names of respondents No. 4 and 5 and other similarly situated persons for adjudging their suitability for appointment to PCS (Executive Branch) against the vacancies of Register A-I and on being found suitable by the Commission, their names were also entered in Register A-I. They were appointed to PCS (Executive Branch) vide order dated 29.4.1985. After about two years of the appointment of respondents No. 4 and 5 Chief Secretary, Punjab issued order dated 16.4.1987/27.4.1987 vide which he circulated tentative seniority list of the officers of PCS (Executive Branch) who had joined service in 1975 and onwards. The criteria adopted for fixing the seniority of the officers was the date of their appointment in the service. The petitioner's name was shown at Sr. No. 103 and those of respondents No. 4 and 5 were shown at Sr. Nos. 106 and 107 respectively. The petitioner and other similarly situated persons represented against the tentative seniority list. They pleaded that their seniority should be fixed as per the roster points specified in Rule 18 of the Rules. Their representations were accepted by the State Government and in the final seniority list circulated vide order dated 12.3.1988 of the Chief Secretary, the names of the officers were arranged as per the roster points. Respondents No. 4 and 5 were assigned roster points No. 2 and 8 respectively and the petitioner was assigner roster point No. 44. Sarv Shri R.L. Kalsia and H.R. Gangar, whose seniority position was downgraded in the final list, represented against order dated 12.3.1988 by contending that the rule of rotation cannot be read in the rule of seniority. Dr. Arvinder Singh, who was appointed to PCS (Executive Branch) in December, 1981 in pursuance of the order passed by the High Court in C.W.P. No. 3372 of 1980 also pleaded for re-fixation of his seniority. Likewise, Shri Surinder Singh Puri, who was selected from the quota of Ex-serviceman and had filed C.W.P. No. 5928 of 1988 for fixation of seniority and pay in accordance with the provisions of Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the PCS (Executive Branch) Rules, 1972, also represented for re- fixation of his seniority by taking into consideration his past service and by assigning him deemed year of appointment. The petitioner represented against his placement below respondents No. 4 and 5 by contending that they were not even eligible to be considered for appointment to PCS (Executive Branch) till 16.1.1984. Many other officers represented against their placement in list dated 12.3.1988. The State Government considered all the representations and decided to re-cast the seniority list. Accordingly order dated 12.6.1992 was issued proposing to fix the seniority of the officers on the basis of date of appointment. On receipt of the copy of order dated 12.6.1992, the petitioner submitted application dated 2.7.1992 for supply of the copies of orders passed by the High Court in C.W.P. Nos. 3372 of 1980, 5928 of 1988 and 4370 of 1984, copy of roster maintained under Rules 18 of the Rules and the recommendations sent to the Commission for selection of candidates against the vacancies of Registerers A-I, A-II, A-III and C. He also prayed for inspection of the record. His request was rejected by the Government vide memo dated 19.8.1992. Thereafter, he made representation dated 31.8.1992 against the proposed revision of seniority. This time, the State Government did not accept the plea of the petitioner and other similarly situated officers and issued the final seniority list vide order dated 18/19.3.1993. The petitioner's plea against the placement of respondents No. 4 and 5 above him was also rejected. The petitioner has averred that the action of the State Government to appoint the candidates from different Registers on different dates is liable to be declared as vitiated by mala fides because this was done with the sole object of favouring the candidates selected for appointment against the vacancies of Register A-II, most of whom were posted in the Secretariat. He has further averred that the delay caused in his appointment on account of stay order passed by the High Court cannot be made basis for depriving him of his legitimate right to be assigned seniority as per Rule 18 of the Rules. He has also challenged the fixation of his seniority below respondents No. 4 and 5 by asserting that they were not even eligible to be considered for appointment prior to 16.1.1984 and, therefore, they cannot be assigned seniority on the basis of deemed appointment against the vacancies of earlier year. Another point raised by the petitioner is that the final seniority list issued vide order dated 12.3.1988 could not be disturbed by the State Government by entertaining representations made by some of the officers and in any case, the impugned list should be declared illegal and quashed because he was not given effective opportunity to make representation against the tentative seniority list circulated vide order dated 12.6.1992.
(3.) Respondents No. 1 to 3 have invoked Section 19 of the Punjab General Clauses Act, 1898 (for short, the 1898 Act) to defend the government's decision to revise the seniority list finalised vide order dated 12.3.1988, According to them, the State Government has the inherent power to amend, revise or modify the seniority list and no illegality was committed by revising the seniority list on the basis of representations made by the aggrieved officers. In the written statement filed on behalf of respondents No. 1 to 3, it has been averred that seniority of the members of service is governed by Rule 21 of the Rules, which prescribes the date of order of appointment and not the sequence of appointment as the criteria for determination of seniority. They have also objected to the maintainability of the writ petition on the ground that the offences likely to be affected by quashing order dated 18/19.3.1993 have not been impleaded as party respondents. On merits, it has been averred that the petitioner was selected for appointment to PCS (Executive Branch) against one of the two vacancies of 1981 and respondents No. 4 and 5 were recommended for appointment against the left over vacancies for the year 1978. Their candidature were considered for appointment to PCS (Executive Branch) in view of the undertaking given by the learned Additional Advocate General, Punjab in CWP No. 4730 of 1984. Respondents No. 1 to 3 have denied the allegation of mala fides levelled by the petitioner in relation to the appointment of the candidates selected against the vacancies earmarked for Register A-II. In paragraph 10 of the written statement, they have given the details of such candidates and averred that posting of some of them in Civil Secretariat had no bearing on the date of their appointment to PCS (Executive Branch).;