A.L. Bahri, J. - (1.) FACTS are not disputed, on the basis of which question of fixation of seniority of the Plaintiff -Appellant Balbir Singh vis -a -vis Defendant -Respondent Siri Ram was required to be determined on the posts of peons held by them in the Cooperative Training Institute, Rohtak. The trial Court decreed the suit filed by Balbir Singh holding him to be senior and the action of the official Respondents treating Siri Ram as senior and granting him selection grade to be illegal. The Plaintiff was held to be entitled to the grant of selection grade. On appeal the judgment and decree of the trial Court was set aside and the suit stood dismissed. Hence this regular second appeal by the Plaintiff.
(2.) BALBIR Singh, Plaintiff joined as peon in 1963 and was confirmed as such on September 5, 1966. Siri Ram was appointed as peon on November 16, 1964. The State of Haryana granted selection grade with effect from February, 1981. Such orders were implemented in the month of December, 1985 with retrospective effect As stated above, selection grade was given to Siri Ram peon treating him to be senior. The Defendants while contesting the suit admitted aforesaid facts but stated that as per instructions issued fey the State, though earlier seniority was at State level, fresh seniority was determined circle -wise and the Plaintiff, therefore, lost his seniority of his previous service at Jhajjar since he was transferred in April, 1981 to the office of Cooperative Training Institute, Rohtak. The following issues were frame on the pleadings of the parties: (1) Whether orders passed in December, 1985 declining the selection grade to Plaintiff are honest, arbitrary and without jurisdiction as alleged? OPP. (2) Whether the suit of the Plaintiff is pre -mature? OPD (3) Whether Plaintiff has no cause of action? OPD (4) Whether no valid notice under Section 80 Code of Civil Procedure has been served upon the Defendants? If so its effect? OPD (5) Relief. The trial Court under issue No. 1 held that the Plaintiff did not lose his seniority on his transfer from Jhajjar in implementation of the instructions which came into being thereafter. Such instructions were issued on November 7, 1983 Exhibit DW1/B. No options were obtained on enforcement of such instructions from the employees with regard to their maintenance of seniority. While fixing seniority circle -wise on such instructions, the period of service prior there to could not be ignored. The action of the Respondents granting selection grade to Siri Ram ignoring the case of Balbir Singh was held to be illegal. Issues Nos. 2 to 4 were decided against the Defendant and the suit was decreed. The lower appellate Court has reversed the finding of the trial Court under issue No. 1, holding that on transfer to Rohtak the previous period of service at Jhajjar could not be taken into consideration while determining the seniority.
(3.) BEFORE the Courts below the parties gave an impression that no Service Rules were applicable to the service of Class IV employees relation to the determination of mode of their seniority either at State level or at circle level. During arguments learned Counsel for the Respondent has referred to the Punjab State (Class IV) Service Rules, 1963 as amended by the Punjab State (Class IV) Service (Haryana Second Amendment) Rules, 1973 (hereinafter called 'the Rules') Rule 9 as amended which is relevant for determining seniority of the members of the Service reads as under: 9. Seniority of members of the service : The seniority inter se of members of the service shall be determined by the length of continuous service on a post in the service in each department or office separately: Provided that where there are different cadres in the service the seniority shall be determined separately for each cadre: Provided further that in case of two or more members appointed on the same date, the seniority shall be determined as follows: (a) a member appointed by direct recruitment shall be senior to a member recruited otherwise; (b) a member appointed by promotion shall be senior to a member appointed by transfer; (c) in the case of members who are appointed by promotion seniority shall be determined according to their seniority in the appointment from which they are promoted; (d) in the case, of members appointed by transfer from the same offices seniority shall be determined according to seniority in the appointments previously held in that cadre; (e) in the case of members appointed by transfer frank different departments or offices of the Government seniority shall be determined according to pay of such members, preference being given to a member who was drawing a higher rate of pay in his previous appointment; and if the rates of pay drawn are also the same then by their length of service in those appointments, and if the length of such services is also the same an older member in these appointments shall be senior to a younger members; and (f) the case of members appointed by direct recruitment seniority shall be determined by their age, an older member being senior to a younger; member: Provided that in the case of members appointed by direct recruitment the order of merit, if any, drawn up at the time pf selection shall not be disturbed and persons recruited as a result of an earlier selection shall be senior to those appointed as a result of subsequent Section.;