# ARVINDER SINGH BAINS v. STATE OF PUNJAB AND ORS

- **Citation:** [2006] Supp. 2 S.C.R. 886
- **Court:** Supreme Court of India
- **Decided:** 2006-05-24
- **Bench:** Dr. Ar. Lakshmanan, Lokeshwar Singh Panta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arvinder-singh-bains-v-state-of-punjab-and-ors-21288
- **Pages:** 32

## Headnote

Service law:
Punjab Civil Services (Executive Branch) (Class I) Rules,1976-Rules
I 8and21---Seniority---lnter-se seniority of direct recruits and promoteesJoint requisition for promotees as well as direct recruits by the State--
Consolidated recommendation by Public Service Commission for recruitment
of both-Jn-service candidates appointed prior to the direct recruits--
Seniority determined in order of their appointment-Seniority List challenged
by direct recruits-Claiming the same to be fv:ed by applying roster--
Dismissal of claim by Single Judge and Division Bench of High Court-On
appeal, held: The seniority could not have been determined from the date
of appointment-The act of the state was in disregard of rota-quota
prescribed in Rue 18 of the Rules.
The appellant was one of the direct recruits to the PCS and the
dispute is regarding their seniority vis-ii-vis recruits from other sources.
Both the batches arose out of posts of 1978 to 1982 as per requisitions
sent by the Government to the public Service Commission. In the
requisition 50% of the posts were meant for direct recruits (Register B)
F
and remaining 50% were meant for promotees/in-service candidates
(Registers A-1, A-11, A-III and C). The Commission made consolidated
recommendations in respect of the candidates on two different dates.
The in-service candidates were appointed in 1984 while the direct
recruits were appointed in 1986. Seniority List of the direct recruits was
G
H
prepared without assigning their places in the consolidated seniority of
the cadre. Appellant filed Writ Petition before High Court claiming that
the inter-se seniority of the 80 candidates (40 direct recruits and 40
promotee) should be fixed by applying roster provided fJr in* rule 18
Punjab Civil Services (Executive Branch) Rules, 1976 by reading Rules
18 and 21 together. High Court dismissed the Writ Petition holding that
determination of seniority of members of the service would be in order
886
AR VIND ER SINGH BAINS v. STATE
887
of their appointment irrespective of the Register from which they were
A
appointed. Letter Patent Appeal filed by the appellant was also dismissed
by Division Bench of High Court Hence the present appeal.
Allowing the appeal, the Court
HELD: 1. The action of the State is contrary to Punjab Civil
Services (Executive Branch) (Class I) Rules, 1976. The seniority under
the 1976-Rules must be based on a collective interpretation of Rule 18
and Rule 21 of the 1976-Rules. The acti<in of the authorities is negation
of Rule 18 of the 1976-Rules in determining the seniority by the
impugned order. [917-A-C]
2. Actual appointment is by virtue of Rule 18of1976 Rules which
says that first and thereafter every alternative vacancy shall be filled
up by Register-B candidates. This position is also fortified by Rule 24(5)-
(Un-amended), the plain reading of which reveals that reference point
is once again candidate from Register-B. Government has also admitted
that direct recruits have precedence over others. Such precedence has
to be reflected in the matter of seniority also. Even otherwise the direct
recruits can never be senior to promotees if date of appointment is made
B
c
D
the sole criterion in determining the seniority as their process of
selection is always lengthier than the promotees. It is in view of this, and
E
to rule out any discrimination/arbitrariness that the Roster under Rule
18 has been prescribed which has to be read with Rule 21 in determining
the seniority. Making date of joining as the basis of determining
seniority would have led to discretion in the hands of the Government
and there would have been a possibility of misuse. It is to avoid this that
F
a Roster has been prescribed in the Rules for fixing seniority. It is
mandatory to apply Rota and Quota in determining seniority where the
same is provided for under the rules. [903-G-H, 904-A-D]
Prafulla Kumar Das and Ors. v. State of Orissa and Ors., [2003) 11
SCC 614 and Mervyn Coutindo and Ors. v. Coll

## Text

_Characters 0–39,940 of 70,135. This is a partial read: ask again with offset=39940 for what follows._

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B
c
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ARVINDER SINGH BAINS
V.
STATE OF PUNJAB AND ORS.
MAY 24, 2006
[DR. AR. LAKSHMANAN AND LOKESHWAR SINGH PANTA, JJ.]
Service law:
Punjab Civil Services (Executive Branch) (Class I) Rules,1976-Rules
I 8and21---Seniority---lnter-se seniority of direct recruits and promoteesJoint requisition for promotees as well as direct recruits by the State--
Consolidated recommendation by Public Service Commission for recruitment
of both-Jn-service candidates appointed prior to the direct recruits--
Seniority determined in order of their appointment-Seniority List challenged
by direct recruits-Claiming the same to be fv:ed by applying roster--
Dismissal of claim by Single Judge and Division Bench of High Court-On
appeal, held: The seniority could not have been determined from the date
of appointment-The act of the state was in disregard of rota-quota
prescribed in Rue 18 of the Rules.
The appellant was one of the direct recruits to the PCS and the
dispute is regarding their seniority vis-ii-vis recruits from other sources.
Both the batches arose out of posts of 1978 to 1982 as per requisitions
sent by the Government to the public Service Commission. In the
requisition 50% of the posts were meant for direct recruits (Register B)
F
and remaining 50% were meant for promotees/in-service candidates
(Registers A-1, A-11, A-III and C). The Commission made consolidated
recommendations in respect of the candidates on two different dates.
The in-service candidates were appointed in 1984 while the direct
recruits were appointed in 1986. Seniority List of the direct recruits was
G
H
prepared without assigning their places in the consolidated seniority of
the cadre. Appellant filed Writ Petition before High Court claiming that
the inter-se seniority of the 80 candidates (40 direct recruits and 40
promotee) should be fixed by applying roster provided fJr in* rule 18
Punjab Civil Services (Executive Branch) Rules, 1976 by reading Rules
18 and 21 together. High Court dismissed the Writ Petition holding that
determination of seniority of members of the service would be in order
886
AR VIND ER SINGH BAINS v. STATE
887
of their appointment irrespective of the Register from which they were
A
appointed. Letter Patent Appeal filed by the appellant was also dismissed
by Division Bench of High Court Hence the present appeal.
Allowing the appeal, the Court
HELD: 1. The action of the State is contrary to Punjab Civil
Services (Executive Branch) (Class I) Rules, 1976. The seniority under
the 1976-Rules must be based on a collective interpretation of Rule 18
and Rule 21 of the 1976-Rules. The acti<in of the authorities is negation
of Rule 18 of the 1976-Rules in determining the seniority by the
impugned order. [917-A-C]
2. Actual appointment is by virtue of Rule 18of1976 Rules which
says that first and thereafter every alternative vacancy shall be filled
up by Register-B candidates. This position is also fortified by Rule 24(5)-
(Un-amended), the plain reading of which reveals that reference point
is once again candidate from Register-B. Government has also admitted
that direct recruits have precedence over others. Such precedence has
to be reflected in the matter of seniority also. Even otherwise the direct
recruits can never be senior to promotees if date of appointment is made
B
c
D
the sole criterion in determining the seniority as their process of
selection is always lengthier than the promotees. It is in view of this, and
E
to rule out any discrimination/arbitrariness that the Roster under Rule
18 has been prescribed which has to be read with Rule 21 in determining
the seniority. Making date of joining as the basis of determining
seniority would have led to discretion in the hands of the Government
and there would have been a possibility of misuse. It is to avoid this that
F
a Roster has been prescribed in the Rules for fixing seniority. It is
mandatory to apply Rota and Quota in determining seniority where the
same is provided for under the rules. [903-G-H, 904-A-D]
Prafulla Kumar Das and Ors. v. State of Orissa and Ors., [2003) 11
SCC 614 and Mervyn Coutindo and Ors. v. Collector of Customs, Bombay
G
and Ors., [1966) 3 SCR 600, followed.
Gonal Bihimappa v. State of Karnataka and Ors., (1987) SCC 207
and Devendra Prasad Sharma v. State of Mizoram and Ors., [1997) 4 SCC
422, relied on.
H
888
SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
A
Ajit Kumar Rath v. State of Orissa and Ors., (199919 SCC 596; Sura)
B
Parkash Gupta and Ors. v. State of J&K and Ors., (2000] 7 SCC 561 and
Dr. Chandra Prakash and Ors. v. State of U.P. and Anr., (20021 IO SCC,
distinguished.
M Subba Reddy and Anr. v. A.P. state Road Transport Corporation
and Ors., 12004) 6 sec 729, referred to.
3. It is not justified for the Government to deviate from the long
established practice without any specific reason.
C
Direct Recruit Class II Engineering Officers' Association v. State of
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Maharashtra and Ors., (1990) 2 SCC 715, followed.
4. The Government has admitted that recruitment to the service
cannot be made from one particular Register/source in isolation by
ignoring other Registers. On the same analogy, the seniority of officers
from one Register cannot be finalized by ignoring other Registers. Even
Rule 21 envisages a joint/composite seniority list of all the Registers.
However, in the present case this has not been done. Composite seniority
list of officers appointed in 1984 and those appointed in 1986 was never
issued in spite of the fact that the officers were appointed as a result
E of requisitions sent by the Government in the year 1982 for the
vacancies of years 1978, 1979, 1980, 1981 and 1982. In the seniority list
of Direct Recruits there is no mention of name of any of the promotee
officers inspite of the fact that a joint requisition of promotees and
Direct Recruits was sent in the year 1982, and as such a Joint/composite
F
seniority in respect of Direct Recruits and Promotees was required to
be issued. (910-A-EI
G
5. Had there been an intention of the legislature to say that the
seniority shall be determined from the date of appointment/order they
would have used the term "date" in Rule 21 as has been done in Rule
20. Even in Rule 21 proviso (a) the term 'date' has been used in an
eventuality where the legislature has an intention to make the 'date'
relevant. (911-A-BJ
6. Had the date of appointment been the sole criterion for fixing
H seniority there would have been no need for proviso (a) to Rule 21 as
ARVINDER SINGH BAINS v.STATE
889
any appointment after cancellation of original appointment will always
be treated as original/first appointment. If the term "in accordance with
the order of their appointment" in Rule 21 actually means "in accordance
with the date of their appointment" there is no need for proviso (a) to Rule
21. (911-B-D)
7. Action of the authorities in determining seniority of all the
members of the PCS (EB) with reference to their date of appointment
and not with reference to the order by which they were required to be
appointed under Rule 18 is mis-interpretation of Rule 21 of 1976-Rules
and is liable to be set aside. The action of the authorities is also contrary
to the Register prescribed for purpose of appointment to the PCS. The
mandate of the roster is that unless his appointment in the order
prescribed under Rule 18, the appointment is invalid. Consequently, the
order of appointment must be deemed to be the order prescribed in Rule
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18 of the 1976-Rules. The term order of appointment is also being misinterpreted by the authorities and is being confined to individual order
of appointments issued to individual members of service whereas the
term of appointment refers only to the order/consequence prescribed
under Rule 18. Further, from a perusal of Rule 21 it would be manifestly
clear that if it is to be interpreted in the manner in which it is presently
being done, namely, to determine the seniority on the basis of the order
of appointment i.e. the date on which the order of appointment is issued,
E
the same must necessarily relate to inter se seniority of individual
sources of recruitment. This procedure was adopted in preparing the
seniority list confined to Register-B. [916-F-G, 916-B-F)
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6373 of
f
2001.
From the Judgment and Order dated 12.12.2000 of the High Court of
Punjab and Haryana at Chandigarh in L.P.A. No. 1705/2000.
L.N. Rao, Sr. Adv., Rishi Malhotra and Prem Malhotra, Advs. with him
for Appellant.
M.N. Krishnamani, Ashok Panda, Sr. Advs., Mrs. Kanwajlit Kochar,
D. Jha, Arun K. Sinha, Ms. Kanchan Kaur Dhodi, Rajesh K. Sharma, Ms.
Shalu Sharma, S.K. Pabbi, Ms. Shikha Roy and Ms. S. Janani, Advs., with
G
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890
SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
A them for the Respondents.
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The Judgment of the Court was delivered by
DR. AR. LAKSHMANAN, J. : Respondent Nos. 6 and 7 - Khushi
Ram and Gurpal Singh Bhatti are impleaded as parties in I.A.No. _3 __
as per order dated 18.05.2006.
The appellant - Arvinder Singh Bains filed the above appeal against the
final judgment and order dated 12.12.2000 passed by the High Court for the
States of Punjab and Haryana at Chandigarh in LPA No. 1705/2000 whereby
the High Court has dismissed the LP A filed by him.
BACKGROUND FACTS:
ADVERTISEMENT OF THE YEAR 1976
State Government issued an advertisement in the year 1976 for 10
vacancies in the cadre of PCS Officers. The 1976-Rules were enforced w.e.f.
02.12.1976. As per the case of the State Government itself requisition for
l 0 posts meant for direct recruits (Register-B) were sent to Punjab Public
Service Commission.
ADVERTISEMENT OF THE YEAR 1980:
State Government issued an advertisement in the year 1980 for direct
recruitment to the PCS. With respect to the said advertisement, State
F
Government had issued a corrigendum, inter a/ia, relaxing the age of
recruitment to PCS. With regard to the 1980 advertisement, competitive
examinations were held for direct recruitment. Selection was to be made by
the Punjab Public Service Commission.
A list of candidates selected by the Commission by way of direct
G recruitment was notified. This included the name of the petitioner and
respondent No. 3 - Dipinder Singh. Promotees from other Registers (other
than Register-B) were appointed as PCS in 1984-85. The appellant had
applied pursuant to the above-mentioned advertisement of 1980-82. The
appellant and others were selected by the Punjab Public Service Commission
H joined as PCS Officers on the basis of competitive examination.
ARVINDER SINGH BAINS v.STATE [LAKSHMANAN, J.]
891
It is to be noticed that these vacancies had occurred in the interregnum
1978 to 1982. These vacancies were filled up only in the year 1986.
According to the appellant, had these vacancies been filled up timely, direct
recruits coming in through Register-B would have found higher places in the
impugned seniority list.
During the interregnum 1978 to 1986 appointment to the service took
place from other Registers. In the meantime, the promotee candidates were
brought in as PCS officers. According to the appellant, delay on the part of
the Government to appoint direct candidates could not result in appellant
losing seniority to these promotee candidates. On 24.08.1988, tentative
seniority list of candidates who had been selected and appointed by direct
recruitment (via Register-B) was prepared and circulated. The appellant
represented against the above tentative seniority list and submitted that Rule
21 has to be read with Rule 18 of the 1976-Rules and thereby seniority is
governed by the order of vacancies mentioned in Rule 18 of the 1976-Rules.
On 01.07.1994, a final seniority list of Register-B candidates was prepared
without assigning their places in the consolidated seniority of the cadre. The
final seniority list of Register-B candidates was also circulated.
PROCEEDINGS BEFORE THE HIGH COURT:
A
B
c
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The appellant and respondent No.3 - Dipinder Singh filed writ petition
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No. 16516 of 1995 before the High Court.
SUBMISSION IN THE WRIT PETITION:
The appellant contended that Rule 21 which governs seniority refers
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to Rule 18 and Rule 18 provided for the filling up of the slab of l 00
vacancies. Rule 21 reads thus:
"21. Seniority of the members of the Service.- The seniority of
officers appointed to the Service shall be determined in accordance
with the order of their app?intment to the Service; provided that
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(a)
ifthe order ofappointment ofany candidate is cancelled under
the provisions of rule 20 and such candidate is subsequently
appointed to the Service, the order of appointment for the
purpose of this rule shall be determined by the date of such
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892
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SCPREME COURT REPORTS (2006] SUPP. 2 S.C.R.
subsequent appointment;
(b)
if any officer appointed to the Service fails to qualify himself
for substantive permanent appointment within the prescribed
period of probation, the Government may determine whether
the date of his appointment for purpose of this rule shall be
postponed by a period not exceeding the period by which such
officer's substantive permanent appointment is delayed beyond
the prescribed period of probation;
( c)
the persons appointed as a result of earlier selection from a
Register shall be senior to those appointed as a result of
subsequent selection from the same Register."
It was submitted that seniority list be governed by order of their
appointment and order of their appointment was provided for in Rule 18 of
D the 1976-Rules. It was thus contended that seniority would be governed by
the serial number of the vacancy and not the date of appointment. Rule 18
reads as follows:-
"18. Appointment of accepted candidate~ to the service. The
Government shall make appointments to the Service in pursuance
E
of rule 7 from amongst the candidates entered on the various
Registers in a slab of I 00 vacancies as follows:-
F
(i)
the first vacancy and thereafter every alternative vacancy shall
be filled from amongst candidates borne on Register 'B'.
(ii)
the 2nd, 8th, 14th, 20th, 26th, 32nd, 38th, 44th, 50th, 56th,
62nd, 68th, 74th, SOth, 86th, 92nd, 96th and IOOth vacancy
shall be filled from amongst the candidates borne on Register
A-I;
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(iii) the 4th, I 0th, 16th, 22nd, 28th, 34th, 40th, 46th, 52nd, 58th,
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64th, 70th, 76th, 82nd, 88th and 98th vacancy shall be filled
from amongst candidates borne on Register A-II.
(iv) The 12th, 30th, 42nd, 54th, 66th, 78th and 90th vacancy shall
be filled from amongst the Excise and Taxation Officers
ARVINDER SINGH BAINS v.STATE [LAKSHMANAN, J.]
893
accepted as candidates on Register A-III;
A
(v)
The 18th, 36th, 60th and 84th vacancy shall be filled from
amongst the District Development and Panchayat Officers or
Block Development and Panchayat Officers accepted as
candidates on Register A-III; and
(vi) The 6th, 24th, 48th, 72nd and 94th vacancy shall be filled
from amongst the candidates on Register 'C' :"
The State Government and respondent Nos. 1 and 2 filed written
statement to the above statement.
STAND OF THE STATE:
A perusal of rule 18 makes it abundantly clear that the rotation system
provided in this rule is in fact meant for recruitment to the Service from
various sources and to ensure prescribed representation of candidates drawn
from various sources. The words "vacancy" and "filled" occurring in this
rule are important and therefore, worth noticing.
A perusal of various rules of the 1976 Rules reveals that these rules
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do not, implicitly or explicitly, permit application of rota system provided
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in rule 18 thereof, for the purpose of determining seniority which is governed
'by rule 21 alone. If seniority of the members of service is determined in
accordance with rule 18, rule 20 and 21 will become redundant."
It was submitted that Rule 20 of 1976-Rules had operated in a
F
completely different field and that Rule 20 of the 1976-Rules was concerned
with the case of a candidate whose appointment had been cancelled and so
subsequently appointed. It is only in such an eventuality that the date of such
subsequent appointment has been made relevant. It was also contended that
Rules 18 specifically refers to appointment to Service and Rule 21 cannot
be interpreted by ignoring Rule 7 and Rule 18.
G
In another written statement filed before the High Court with regard
to the other Registers, the date of such appointments were 19 .11.1994 and
20.11.1994. These were appointments from 2 different Registers made on
given as 19 .11.1994 and 20.11.1994. To explain the seniority positions
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
allocated to these candidates, it was stated that:
"Therefore, it is clear that even for this appointment, seniority has been
determined as per Rule 21. Inter-jection was only a via-media adopted by
the State Government in view of the fact that the rules are totally silent as
to what would happen if persons from two registers are issued orders of
appointment on the same date."
Khushi Ram and Gurpal Singh Bhatti - who were respondent Nos. 3
& 4 in the writ petition and now respondent Nos. 6 & 7 in this appeal filed
written statement before the High Court. They contended that the appellants
and their batch mates will have to remain junior to respondent Nos. 6 & 7,
they having been appointed 2 years after the appointment of the answering
respondents and, therefore, they would remain junior to them for the purpose
of seniority and selection/promotion to the post of !AS cadre.
JUDGMENT OF THE HIGH COURT (SINGLE JUDGE):
The learned single Judge on 08.12.1999 dismissed the writ petition filed
by the appellant. The High Court was of the opinion that there was nothing
in the Rules from which it could be inferred that candidates from the various
services were required to be selected simultaneously. In this respect, the
E
learned Single Judge of the High Court recorded that:
"In this context, it is important to bear in mind that Rule 18 earmarks
the vacancies to be filled from among the candidates entered in the various
Registers, but there is nothing in the language of the said rule or the scheme
F
of Rules 7 ,8,9 to 11, 12 to 14 and 15 from which it can be inferred that
selection for entering the names of the accepted candidates in the various
Registers should be made simultaneously." And Moreover, as the scheme
of the 1976 Rules does not envisage simultaneous selection of the candidates
for entering their names in different Registers."
G
It is submitted that a joint reading of Rules 7,12,18 and 21 of the 1976Rules leads to the conclusion that the 1976-Rules contemplate simultaneous
appointment. All Officers from various sources i.e. (from various Registers)
whose name had been entered in the said Registers as accepted
candidates were to be considered for appointment simultaneously/
H contemporaneous.
ARVINDER SINGH BAINS v.STATE [LAKSHMANAN, J.]
895
The other finding of the learned Single Judge was that seniority could
not be linked to the year of the vacancy. In this respect, it was recorded that:-
"The plaint language of Rule 21 speaks 0£ determination of seniority
of members of the service in accordance with the order of their appointment
and not as per the roster points enumerated in Rule 18. The expression in
accordance with the order of their appointment to the Service refers to the
point of time when the officers are appointed and not the slots allotted to
them under Rule 18. In other words, those appointed earlier in point of time
will rank senior to the others who are appointed subsequently irrespective
of the Register from which they are appointed."
Aggrieved by the order passed by the learned Single Judge the appellant
preferred LPA No. 1705 of 2000 before the Division Bench.
DECISION OF THE DIVISION BENCH:
The Division Bench dismissed the LPA filed by the appellant by
observing:-
"Heard.
A
B
c
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In our view there is no provision made for determination of seniority
E
in accordance with order or appointment on rotation of vacancies based upon
quota of reservation for direct recruitment and promotion under the Punjab
Civil Services (Executive Branch) {Class I) Rules, 1976. Rule 18 provides
for appointment to the Service on availability of vacancies in a slab of l 00
vacancies. Rotation of vacancies, it is pertinent of note, is not based on any
F
quota of reservation for direct recruitment and promotion respectively fixed
in the rules. This read with Rule 21 for determination of seniority cannot be
construed as rota-quota rule.
We concur with the judgment of the learned Single Judge and find no
reason to interfere with it.
G
Dismissed in limine."
Aggrieved by the order of dismissal in LPA, the appellant preferred the
above special leave petition. The delay was condoned. Leave was granted
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
A
on 03.09.200 I. This Court made it clear that any action taken will be subject
to the outcome of the appeal.
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We have heard Mr. L.N. Rao, learned senior counsel assisted by Mr.
Prem Malhotra for appellants and Mrs. Kawaljit Kochar, learned counsel and
Ms. Kanchan Kaur Dhodi for respondent No.3 and Mr. M.N. Krishnamani
for respondent No.5 and Mr. Ashok Panda for respondent Nos. 6 and 7.
Mr. L.N. Rao, learned senior counsel, made the following submissions:-
a)
That the Division Bench which dismissed the LPA filed by the
appellant has not even addressed itself to the real controversy
which is evident upon a reading of the order passed by the
Division Bench. The submission of the appellant was that
seniority under Rule 21 is to be governed by the 'order of
appointment' to the service as provided for in Rule 18 of the
1976-Rules which further refers to Rule 7. This point has not
been addressed to by the Bench;
b)
Learned Single Judge held that it was not incumbent upon the
Government to hold simultaneous selection with regard to the
various sources i.e. from the various registers. It is submitted
E
that reading of Rules 7, 8, 12, 14, 18 & 21 demonstrates that
the 1976-Rules clearly envisage simultaneous/contemporaneous
appointment from the various sources, namely, the various
registers;
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c)
That simultaneous/contemporaneous appointment from various
sources is contemplated by the Rules to give adequate
representation to the various categories of employees. So also,
to grant appropriate seniority to the various categories of
officers.
d)
The Government has not explained the reasons for delay in
recruitment. On account of delay by the Government in
making selection of direct recruits from Register-B, such
direct recruits could not lose their seniority.
e)
That Rule 21 of the 1976-Rules was the Rule governing
ARVJNDER SINGH BAINS v.STATE (LAKSHMANAN, J.]
897
seniority which contemplated seniority in 'order of their
A
appointment' and this order of appointment was as stipulated
f)
in Rule 18;
Learned single Judge rejected the contention of the appellant
on the reasoning that acceptance of the contention of the
appellant would result in Rule 20 being rendered redundant.
Rule 20 of the 1976-Rules reads thus:
"20. If a candidate on appointment to a particular post, is unable,
B
for any reason other than the orders of the Government, to join his
appointment within one month from the date of receipt of the orders
C
of appointment, the Government may remove his name from the
Register or may cancel the orders of appointment, and if he is
subsequently appointed, may assign to him seniority in accordance
with the date of the revised orders of appointment."
g)
that the scope and ambit of Rule 20 is completely different
and was in no way rendered redundant and is meant for
another eventuality which may arise.
h)
The State Government in their written statement had admitted
D
that from two other sources, orders of appointment had been
E
issued on 19.11.1994 and 20.11.1994 and thereafter, the stand
of the State Government was :-
"Therefore, it is clear that even for this appointment, seniority has
been determined as per Rule 21. Inter-jection was only a via-media
F
adopted by the State Government in view of the fact that the rules
are totally silent as to what would happen if persons from two
registers are issued orders of appointment on the same date."
i)
that the State Government had itself done interjection in the
matter of assignment of seniority. The stand of the State
G
Government itself was that interjection had been done as a
via-media. The State Government had not assigned
seniority purely on the basis of the date of appointment. Thus,
the stand of the State Government was conflicting at various
~~
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
j)
That Rule 24(5) of the 1976-Rules reads thus:
"(5) The year of allotment of an officer appointed to the Service
from Register B shall be the year in which he is appointed and the
year of allotment of an officer appointed from other Registers shall
be the same as that of the officers appointed to the Service from
Register B against their corresponding quota of vacancies."
The above Rule clearly contemplates simultaneous appointment of PCS
Officers from various Registers. Moreover, the reference point is the direct
recruitment from Register-B. Others appointed from other Registers are
C
given year of allotment as Officers appointed in service from Register-B
against their corresponding vacancy. Mr. Rao submitted that the above Rule
also demonstrates linkage between year of allotment and the vacancies.
D
k) That the Government at times may not make selection from a
particular source on account of unexplained reasons. For such
inaction of the Government in making selection from a particular
source, appellant from Register-B could not be made to suffer loss
of seniority vis-a-vis other sources from which recruitment had
been made.
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I)
that PCS is a feeder cadre for appointment to IAS. Seniority in
PCS would govern entry into !AS service. On account of delay
of the Government in making selection of direct recruit candidates,
their seniority has been permanently depressed vis-a-vis other
sources of recruitment in PCS service. If this is allowed to
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continue, direct recruit candidates would invariably face
disadvantage.
m)
As is well known selection by direct recruitment takes longer time
to finalise than promotion and direct recruitment involves a
process of detailed selection through PCS. It is, therefore, contended
that in fact the process of selection of direct recruit candidates
should start c;arlier in point of time than the process of selection
of candidates from other sources. Therefore, it is submitted that
this is the mode to ensure obedience to the letter and spirit of the
1976-Rules which Rules contemplates simultaneous/
contemporaneous appointment from the various sources, namely,
ARVINDER SINGH BAINS v.STATE [LAKSHMANAN, J.]
899
the various registers. So much so Rule 24(5) of 1976-Rules
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contemplates allocation of year of allotment to a direct recruit as
a reference point for grant of year of allocation to candidates
recruited from other sources. Under these circumstances, Mr. Rao
prayed that the final judgment and order dated 12 .12 .2000 passed
by the High Court in LP A No. 1705 of2000 be set aside and relief
prayed for by the appellant is granted.
Respondent Nos. I & 2 State of Punjab filed counter affidavit in this
appeal It is submitted that after the disposal of the LPA Nos. 851/1982, 843/
1982 by the High Court, the seniority ofManinder Singh and H.S. Bains and
4 other affected persons figuring in between them was re-determined by the
Government vide its order dated 15.11.1986 and that the seniority of all other
PCS officers appointed to the service through various registers which stood
duly determined under the 1930 Rules i.e. in accordance with Rule 20 read
with R,ule 17 was kept in tact without effecting any change thereto. It is
further stated in para 6 of the counter affidavit that in the light of the above
noted factual position as also the legal· advise obtained by the legal
remembrancer on the 09.12.1982 and reiterated thereafter, the State
Government decided to deviate from the long established practice and
switched over to the determination of seniority in accordance with the date
of appointment/orders of appointment/act of actual appointment in terms of
the provisions of Rule 21 alone of the 1976 rules. It is also stated in para
· ( d) of 5 of the counter that the post of direct recruitment to be filled up on
.the basis of PCS (Executive Branch) and other allied services examination
were duly advertised by the Commission vide advertisement dated 01.05.1982
and that the competitive examination was held by the Commission March,
1984 and after taking viva-voce, the Commission made its recommendation
in June, 1985 whereafter appointment of candidates ofRegister-B were made
in March, 1986. Learned senior counsel for the State of Punjab reiterated the
contentions raised in the counter affidavit at the time of arguments.
Separate counter affidavits were filed on behalf of respondent Nos. 3
& 4 - Mr. R.L. Mehta and Mr. G .R. Bansal. Ms. Kaur Dhodi, learned counsel
reiterated the submission made in their counter affidavit at the time of
hearing. It is submitted that the relief.as prayed for i.e. fixation of seniority
according to the roaster prescribed under Rule 18 could not have been
claimed by the appellant as the statutory rules Rule 21 specifically provided
for determination of seniority in accordance with the order of their appointment
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
to service. According to them, there was no challenge to Rule 21 and as such
in the absence of any challenge the relief as sought for by the appellant with
regard to the determination of seniority other than as provided under Rule
21 could not be granted to the appellant. It is further submitted that the
appellant had been appointed to the PCS (Executive Branch) by way of direct
recruitment on 26.04.1986 and that the writ petition was filed in the year
1995 questioning the delayed direct recruitment and seeking seniority on the
basis of the roaster provided under Rule 18. The appellant having accepted
his date of appointment thus was estopped by his act and conduct to allege
that the appellant is entitled to be treated as a member of PCS with reference
to a fictional/deemed date i.e. the date of accrual of vacancy and not from
the date of actual appointment against the said vacancy.
Mr. M.N. Krishnamani appeared on behalf of respondent No. 5 -
Dipinder Singh. He has adopted the argument of Mr. L.N. Rao. He placed
strong reliance on two judgments of this Court reported in Direct Recruit
Class fl Engineering Officers' Association v. State of Maharashtra and
Others, [1990] 2 SCC 715 and Gonal Bihimappa v. State of Karnataka and
Others, 1987, Supp. [SCC] 207.
Mr. Ashok Panda, learned senior counsel appeared on behalf of Shri
Khushi Ram and Shri B.S. Bhatti - respondent Nos. 6 & 7. He invited our
attention to the written statement filed on their behalf as respondent Nos. 3
& 4 in writ petition No. 16516/1995 in the High Court. He reiterated the
averments made in the written statement and also cited Ajit Kumar Rath v.
I
State of Orissa and Others, [ 1999] 9 SCC 596 at 602 paras 13 & 14, Dr.
Chandra Prakash and Others v. State of U. P. and Another, [2002] l 0 SCC
710 at 726 paras 41 & 42 and Sura} Parkash Gupta and Others v. State of
J&K and Others, [2000] 7 SCC 561 at 599 para 4.
Mr. Panda invited our attention to the relevant rules and submitted that
no legal right has accrued to the appellants to invoking extraordinary writ
jurisdiction of the High Court, and, therefore, the writ petition is liable to
G be dismissed. He denied that the appellants are entitled to be given seniority
on the basis of alleged roaster system and against the vacancies of 1978 for
the years 1978 and 1979. They were not the members of service. According
to Mr. Panda that the direct recruits gets seniority from the date they were
actually appointed although the vacancies existed in the earlier years and the
· H promotees got seniority from the date when they were fitted within their
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ARVINDER SINGH BAINS v.STATE [LAKSHMANAN, J.]
901
quota. It is the case of Mr. Panda that the answering respondents and other
members of service appointed from Registers Al, A2, A3 and Register-C
cannot be considered to have been promoted in the strict sense of definition
for promotion as their method of appointment is not in the nature of
promotion but his appointment by way of nomination on the basis of their
outstanding merits in their respective cadres of service and the answering
respondents and other members of service appointed from Registers A I, A2,
A3 and Register-C have been appointed against their own quota of vacancies
and, therefore, their seniority cannot be shifted back in the garb of alleged
roaster theory. It is further contended that so far as the question of existence
of vacancies in the earlier years is concerned, the vacancies in the case of
other registers also were available in the years of 1978, 1979, 1980, 1981
and 1982 and, therefore, the position regarding existence of vacancies in
different years is the same as is in the case of candidates of Register-B.
Therefore, it is submitted the appellant is not entitled to be given seniority
from the date prior to their date/year of appointment in the garb of
availability of vacancies in the earlier years as the respondents and the
members of service appointed from other registers have been appointed
against the vacancies of their respective quota and, therefore, their seniority
cannot be shifted back. Concluding his arguments, Mr. Panda submitted and
in view of the position explained the appellants and their batch mates will
have to remain junior to the answering respondents, they having been
appointed 2 years after the appointment of the answering respondents and,
therefore, they would remain junior to the answering respondent for the
purpose of seniority and selection/promotion to the post of IAS cadre.
Concluding his arguments Mr. Panda submitted that the prayer in the writ
petition and in this appeal is not legally tenable and, therefore, this appeal
is liable to be dismissed.
We have carefully and thoughtfully considered the rival submissions
made by the respective parties through their learned counsel. We have also
perused the entire pleadings, counter affidavits filed before the High Court
and also of this Court and the judgments rendered by the learned single Judge
and of the Division Bench.
The following questions of law arise for consideration by this Court:-
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(i)
Whether a reading of Rules 7, 8, 12, 14, 18, 21 of the Punjab Civil
Services (Executive Branch) (Class I) Rules, 1976, does not lead
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to the conclusion that simultaneous/contemporaneous appointment
is envisaged by the 1976 Rule from the various sources i.e.
from the various Registers?
(ii)
Vv'hether the Division Bench of the High Court could have
dismissed the LPA of the Petitioner without addressing itself to
the real controversy at hand?
(iii) Whether the Division Bench of the High Court was correct in
concluding that there was no provision for determining seniority
on the basis of rotation of vacancies?
(iv) Whether the Division Bench of the High Court was correct in
considering quota when rota alone (and not quota) is provided for
in the 1976-Rules?
(v)
Whether the mere reading of Rules 7, 18 and 21 was not sufficient
to conclude that seniority was on rotation of vacancy and not post?
(vi) Whether on account of delay on the part of the State Government
in making appointment of the Petitioner from Register-B, Petitioner
could have been denied seniority?
The issue in this case relates to the inter-relation between Rules 18 and
21 of the PCS (EB) (Class I) Rules, 1976.
Rule 7 lays down that appointment to the service shall be made from
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amongst Accepted Candidates whose names have been duly entered in the
registers of the Accepted Candidates. Rule 8 details the various registers of
Accepted Candidates.
A-1:-
Tehsildars \\\
G A-11 :- Ministerial Employees of the State Government
(Class II&III)
A-III:- ETOs/BODs/DDPOs
B:-
Direct Recruits
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C:-
Other Govt Servants
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ARVINDER SINGH BAINS v.STATE [LAKSHMANAN, J.]
903
Rules 9, 10, 11 & 15 lay down the procedure for selection of in-service
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candidates.
Rules 12, 13 & 14 lay down the procedure for selection of direct
recruits (Competitive Exam).
Rule 18 clearly lays down the rotation (on a 100 point roster) on the
basis of which the various Accepted Candidates from different registers (as
laid down in Rule 7. Supra) are to be appointed to the service.
Rule 21 which relates to seniority mandates that seniority of officers
shall be determined in accordance with the order of their appointment.
The appellants are. direct recruits (1986 batch) to the PCS and the
dispute is regarding their seniority vis-a-vis recruits from other sources ( 1984
batch). Both these batches arose out of posts of 1978 to 1982 as per
requisitions sent by the Government to PPSC. In the said requisitions, it was
mentioned by the Government that 50% of posts are meant for Direct
Recruits (Register-B) and remaining 50% are meant for promotees/inservice
candidates (Registers A-1,A-II,A-III and C). (Vide communication dated
24.9.1982 the Punjab Government made a specific request to the Punjab
Public Service Commission to make its recommendations against total
number of vacancies intimated to it). The PPSC made consolidated
recommendations in respect of 40 (For in-service/nominated candidates +40
(Direct recruits) on two different dates to the Government. Accordingly, the
candidates of Registers A-1, A-II, A-III and C were appointed in November
and December, 1984 whereas the candidates of Register-B were appointed
in March, 1986. This was admitted in the counter affidavit of the Government.
The appellant is not seeking any ante dated promotion. The case of
the appellant is that the inter-se seniority of 80 officers ( 40 Direct Recruits
+ 40 Promotees) should be fixed by applying roster provided for in Rule 18
of PCS (EB) Rules, 1976 by reading Rules 18 and 21 together.
Joint reading of Rules 7 and 18 envisages that appointments are to be
made when the names have been entered in all the Registers.
Actual appointment is by virtue of Rule 18 only which says that first
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and thereafter every alternative vacancy shall be filled up by Register-B
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.
A
candidates. In other words, the first officer to be appointed has to be from
Register-B. This position is also fortified by Rule 24(5)-(Un-amended), the
plain reading of which reveals that reference point is once again candidate
from Register-B. In para 5(1) of counter affidavit, Government has also
admitted that direct recrmts have precedence over others. Such precedence
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has to be reflected in the matter of seniority also. Even otherwise the direct
recruits can never be senior to promotees if date of appointment is made the
sole criterion in determining the seniority as their process of selection is
always lengthier than the promotees. It is in view of this, and to rule out any
discrimination/arbitrariness that the Roster under Rule 18 has been prescribed
which has to be read with Rule 21 in determining the seniority. Making date
of joining as the basis of determining seniority would have led to discretion
in the hands of the Government and there would have been a possibility of
misuse. It is to avoid this that a Roster has been prescribed in the Rules for
fixing seniority. This Court held that it is mandatory to apply Rota and Quota
in determining ~eniority where the same is provided for under the rules as
held by this Court in Mervyn Coutindo & Ors. v. Collector of Customs,
Bombay & Ors.