I.S. Tiwana, J. - (1.) The petitioners stood promoted to the posts of Assistant Town Planner from the posts of Planning Assistant During the period 9th Jan., 1971 to 20th March, 1972. They impugn the orders of the State Government dated 6th March, 1986 (Annexure P 16) and Annexure P17/A determining their seniority below that of respondents No. 3 to 19 and rejecting their representations against that. In order to appreciate the controversy raised, the following facts deserve to be taken notice of. The Punjab Town Planners (State Service Class I) Rules, 1972, came into force which effect from 11th Aug., 1972. As per rule 8 of these Rules dealing with the method of recruitment to the Service, which means the Assistant Planners it was provided that 80% of the vacancies will be filled in by direct recruitment and the remaining 20% by promotion from amongst the Planning Assistants who have at least three years experience. Further, rule 10 of these Rules lays down that the seniority inter se of the members of the Service in each cadre shall be determined by the length of their continuous service on a post in that cadre of the Service. The case of the petitioners is that since as per the Rules, the vacancies in the quota of the promotees were available on 11th Aug., 1972, they should be taken to have been appointed or regularised against those vacancies and those dates being earlier to that of the date of appointment of private respondents, i.e., the 6th March, 1974, they have to be treated senior to the latter in the light of rule 10 referred to above.
(2.) On an earlier date when the inter se seniority of the petitioners and the private respondents was yet to be finalised by the State Government, I had directed on 31st July, 1985, that while hearing the objections against the tentative seniority list prepared on 10th July, 1985, against which objections had been invited from the persons concerned, the State Government should consider the representation of the petitioners and dispose of the same by passing a speaking order. In pursuance of that directions, the State Government has passed the impugned order Annexure P16 whereby, as already indicated, the petitioners have been held to be junior to the private respondents. One of the main reasons for this conclusion as disclosed in the very opening para (i) of this order is that on 11th Aug., 1972, six vacancies of the promotee Assistant Town Planners who had been appointed to the higher cadre posts could not be taken to have been available to the Government as, according to it, those were not regular promotions and in view of that the petitioners could not be taken to have been appointed or regularised against those vacancies. It is again not in dispute that some time later three more vacancies of Assistant Town Planner who were promoted to the next higher posts of Divisional Town Planners with effect from 8th Oct., 1972, also became available. In the light of these facts it is maintained by the respondent-authorities that till the officers who had been promoted from the posts of Assistant Town Planner to that of Divisional Town Planners were either confirmed or absorbed permanently on the promoted posts, i.e. the Divisional Town Planners, the posts of Assistant Town Planners could not be taken to have been vacated and could not be treated as vacancies for purposes of regularising the appointment of the petitioners against those vacancies. Besides that it has also been pleaded on behalf of these authorities in para 21 of the Written Statement as follows. "A fresh vacancy roster w.e.f. 11-8-72 has been cast (R-18) and six posts of Assistant Area Planner re designated as Assistant Town Planners has been included in this roster. It is submitted for kind information of this Honourable Court that as per rule 8 of Punjab Town Planner (State Service Class-1) Rules, 1972, 80% of the posts of Assistant Town Planner are to be filed by direct recruitment and 20% by promotion from amongest Planning Assistants. Based on ratio prescribed in the rules, it has further been decided by the Govt. that first four vacancy points should be filed by the direct recruitment of Assistant Town Planners and fifth by promotion from Planning Assistant. Since direct recruitment of Assistant Town Planner only matured in the month of March, 1974 it was not legally sound to promote the petitioners as Assistant Town Planners on regular basis earlier than March, 74. As soon as the direct recruitment of Assistant Town Planners materialised Govt. regularised the petitioner No. 1, 2 & 3 as Assistant Town Planners w.e.f. 2-4-74, 3-4-74 and 4-8-81 respectively." After hearing the learned counsel for the parties I find that the impugned action of the respondent-authorities holding the petitioners to be junior to the private respondents cannot be sustained.
(3.) To take up the latter of the alternative plea raised on behalf of the respondent-authorities in para 21 of the Written Statement (as quoted above) is concerned, it runs counter to the ratio of the Supreme Court judgment in B.S. Yadav and others Vs. State of Haryana and others, 1980 (3) SLR 591. As is apparent from this plea, the sole reason for not regularising the petitioners against the vacancies which were available to their quota (as detailed in Ex. R18) was that the Government did not want to regularise them till it had brought in the private respondents by way of direct recruitment. In the above-noted judgment where the seniority of the members of the Superior Judicial Services of Punjab and Haryana depended on the date of their confirmation in the Service, their Lordships of the Supreme Court expressed themselves in the following manner:- "We are of the opinion, on a proper interpretation of the rules, that promotees are entitled to be confirmed in the vacancies which are available within their quota of ⅔rd, whether or not ⅓rd of the vacancies are occupied by confirmed direct recruits. And similarly, direct recruits are entitled to be confirmed in vacancies which are available within their quota of ⅔rd, whether or not ⅓rd of the vacancies are occupied by confirmed direct recruits. And similarly, direct recruits are entitled to be confirmed in vacancies which are available within their quota of ⅓rd, whether or not ⅔rd of the vacancies are occupied by confirmed promotees. What we find lacking in justification is the refusal of the High Court to confirm the promotees even if vacancies are available in their quota in which they can be confirmed merely because, by doing so, more than two promotees may have to be confirmed at one time, without the confirmation of a proportionate number of direct recruits. The fairness which Articles 14 and 16 postulates is that if a promotee is otherwise fit for confirmation and a vacancy falling within the quota of promotees is available in which he can be confirmed, his confirmation ought not to be postponed until a direct recruit whether yet appointed or not completes his period of probation and thereupon becomes eligible for confirmation. The adoption of this principle in the matter of confirmation will not, in practice, give any under advantage to the promotees." It is, thus patent that not to regularise or appoint the petitioners against the vacancies which were available to them prior to the appointment of the private respondents with effect from 6th March, 1974, would involve the violation of Articles 14 and 16 of the Constitution of India. Therefore, this plea of the respondents has obviously to be rejected in the light of this authoritative pronouncement.;