- (1.) The petitioner seeks a writ of certiorari quashing order Annexure P-1. The petitioner claims that she was appointed along with respondent No. 3 on purely temporary basis on the post of Clerk by the Deputy Commissioner, Faridkot in the year 1972. At the time of selection, no merit list was prepared because the petitioner, as well as the respondent No. 3 joined on temporary basis. The petitioner joined as a Clerk on 26th September, 1972 whereas the respondent No. 3 joined as Clerk on 30.9.1972. Since then both the petitioners and respondent No. 3 had been working in the cadre of Clerk. The petitioner further claims that the seniority of the officials who joined the service before 1976 was determined under the Punjab Subordinate Service Rules, 1942 (hereinafter referred to as the 1942 Rules). On the basis of these rules respondent No. 2 circulated a seniority list amongst all the Clerks. This was finalised after considering all the objections raised by any employee vide order dated 21.10.1981. The petitioner was shown as senior to respondent No. 3 and the name of the petitioner appears at Serial No. 107 and that of respondent No. 3 at Serial No. 108. Respondent No. 3 filed representation-cum-appeal before respondent No. 1 on 31.3.1982. This was rejected by order dated 31.3.1983. Respondent No. 3 made an application for reviewing of the order which was accepted by order No. EA-11-86/7353 dated 11.8.1986. This order was passed after giving due opportunity of hearing to the petitioner and two other employees namely Sh. Amar Nath, and Sadhu Singh as well as respondent No. 3. It was held that the seniority had to be determined under the Ist proviso to Rule 11 of the Punjab District Services (Class-III) Rules 1976 (hereinafter referred to as the 1976 Rules). Since respondent No. 3 had been placed higher in merit by the Selection Committee constituted by the Government, he had to rank senior to the petitioner and the other two officials mentioned above. It may be noticed that Selection Committee had placed respondent No. 3 at Serial No. 3 and the petitioner and the other two officials were at Serial No. 5 and 7 and 9 respectively.
(2.) Learned counsel for the petitioner submitted that the seniority of the members of the cadre is to be determined on the basis of the 1942 rules, and not on the basis of the 1976 Rules. It is further submitted that respondent No. 1 had no power of review as no such power is provided under the rules governing this service. It is submitted that respondent No. 1 cannot exercise any inherent power of review of the earlier orders. It is further submitted that merit could be the determining factor for seniority only if the selection has been made by the Commissioner or any Recruiting Authority. The petitioner and respondent No. 3 were appointed only on purely temporary basis. Therefore, the aforesaid rules cannot be made applicable. In fact, note No. 1 under Rule 11 of the 1976 Rules provides that the rule shall note be applicable to members appointed on purely provisional basis. Therefore, the seniority has to be governed by Rule 16 of the 1942 Rules which provides that in case of two or more employees recruited by direct appointment on the same date, an older member shall be ranked senior to a younger member. The petitioner being older in age had been rightly given seniority over respondent No. 3.
(3.) Written Statement has been filed and the claim put forward by the petitioner has been controverted. It is reiterated that since respondent No. 3 higher in merit he had to rank senior to the petitioner and the other two employees mentioned above. It is denied that the seniority of the Clerk is to be determined on the bases of 1942, Rules. The respondents have neither given any justification nor brought on the record any legal provision under which respondent No. 1 had the power to review the earlier order passed by the then Commissioner, Ferozepur Division, Ferozepur.;