S K BHANDARI Vs. UNION OF INDIA

JUDGEMENT

(1.) O.P. Garg, Vice Chairman 1. This is a second round of litigation with regard to the determination of seniority of the applicant vis-a-vis Respondent No. 4. The woodcut profile of the case is as follows; The two applicants, namely, S/Shri S.K. Bhandari and Sukhdev Sharma, who were respectively Steno-typist and Clerk in the office of Deputy Commissioner, Chandigarh, were appointed as Taxation Inspectors by way of transfer in March, 1984. In the appointment letter dated 9.3.1984 (Annexure A/1), it was stipulated that the applicants shall be on probation for a period of one year and if during the said period their work and conduct is not found satisfactory, they will be reverted to their former post. It was further stipulated that they shall have to pass departmental examination within a period of 3 years from the date of their appointment failing which they were to stand reverted to their former post. Shri Sher Singh, Respondent No. 4, was also similarly appointed as Taxation Inspector by way of transfer vide order dated 25.1.1985 subject to the same stipulations. The two applicants qualified in the departmental examination on 12.6.1986 i.e. within a period of three years. The Respondent No. 4 passed the departmental examination in January, 1986, i.e. earlier to the applicants. The Respondent No. 4 was confirmed against a substantive post and on the basis of his passing the departmental examination earlier to the applicants, he was assigned seniority higher to the applicants. The applicants were confirmed w.e.f. 26.5.1986 by an order dated 4.6.1986 (Annexure A/4). The applicants, for the first time, came to know in the month of November, 1987 that their claim for seniority has been totally ignored and that the Respondent No. 4 had made a march over them. The applicants made a representation, but, it was of no consequence. In course of time, Respondent No. 4 was given powers of Assessing Authority to the serious detriment of the applicants. The applicants made another representation but it also did not evoke any favourable response.

(2.) In order to challenge the inaction on the part of the official Respondents No. 1 to 3 and illegal placement of the Respondent No. 4 in the seniority list, the applicants filed O.A. No. 775/CH/89. The said O.A. was dismissed after due contest on 10.10.1995. The applicants went before the Apex Court by filing S.L.P. (Civil) No. 24503/95. The respondent No. 4 appeared before Hon'ble Supreme Court to oppose the S.L.P. The S.L.P. was dismissed by the Hon'ble Court on 5.2.1996 by passing the following order: "ORDER Heard learned Counsel for the parties. The Special Leave Petition is dismissed as withdrawn. However, we make it clear that we are not expressing any opinion so far the vires of Rule 9 of the Punjab Excise Subordinate Service Rules 1943 is concerned. That is left open." Armed with the above order of the Hon'ble Supreme Court, the applicants have filed the present O.A. to challenge the vires of Rule 9 of the Punjab Excise Subordinate Services Rules, 1943 (hereinafter called the Rules of 1943) on the ground that the said provision is violative of the principles of natural justice and is also hit by Articles 14 and 16 of the Constitution of India. According to the applicants, seniority cannot be determined with reference to the date of confirmation and since Rule 9 implies that the seniority is to be reckoned from the date of confirmation, it is against the series of decisions of the Apex Court which has not approved linking of the seniority with the date of confirmation.

(3.) A replication has been filed by the applicants.