Smt. Roshni Devi v. State of Haryana & Ors.

Mr. R.K.S. Brar, Addl. A.G., Haryana. *** PERMOD KOHLI.J (ORAL) Aggrieved of the gradation list (Annexure P-6), showing the seniority position as stood on 1.1.2006, petitioner has filed this petition seeking a direction for re-fixation of the seniority below Sr. No. 7330. The petitioner applied for the post of S.S. Mistress in response to the Advertisement No. 5/1987 in category 9. The Haryana Subordinate Selection Board made the selection and recommended as many as 257 candidates for appointment against the available vacancies vide letter dated

23.8.1989. The Govt., however, appointed only 67 candidates in general category in January, 1990 and the candidates next in the merit irrespective of the category were not considered for appointment. Some of the selectees, who were denied appointment filed a number of writ petitions before this Court seeking appointment to the post against the available vacancies. One of the writ petition being CWP no. 12249 of 1991 was allowed giving a direction to the respondents to appoint the petitioners therein on the post of S.S. Mistress keeping in view their merit in the selection list. The State of Haryana filed SLP No. 10354 of 1991 before the Hon'ble Supreme Court. CWP. No. 19836 of 2008 -2- Some other S.L.Ps were also filed against orders passed in other connected writ petitions. All these matters were disposed of by the Hon'ble Superme Court with the following directions:- “ (1) All the remaining selectees as recommended by Subordinate Services Selection Board for the various subjects above mentioned shall be appointed by the State on or before 31st December, 1992. (2) These appointments may be either against the existing vacancies or in the vacancies which are to occur herein after till 31st December, 1992. (3) The appointment shall be, if necessary either by displacement of ad hoc appointees on the basis of last come first go or by creating supernumerary posts, if need be. (4) The seniority of these persons who have been recommended by Subordinate Services Selection Board shall be reckoned in the order which they had been assigned ranks by the SSSB.” Pursuant to the directions of the Hon'ble Supreme Court the petitioner came to be appointed vide order dated 19.3.1993. It is relevant to mention that the petitioner was at Sr. No. 138 of the merit list prepared by the Services Selection Board and recommended for appointment amongst 188 recommendees. The State of Haryana notified the provisional gradation list of the Haryana Education Service Class-III Masters (State Cadre) as it stood on 1.1.2006 (Annexure P-6). In the aforesaid gradation list petitioner's name figures at Sr. No. 11109 along with Rashmi Devi. Petitioner filed objection to the aforesaid provisional gradation list but the objections having not been decided, present writ petition has been filed. CWP. No. 19836 of 2008 -3- Under normal circumstances, the respondents, should have been directed to decide the objections filed by the petitioner, however, in view of the clear stand taken by the respondents in the reply, this petition is being decided on merits. The respondents in their written reply filed before this Court have taken the stand that 130 posts of S.S. Mistress were referred to the Haryana Services Selection Board in the year 1987 for selection. The Board, however, recommended list of 238 candidates for appointment. It is admitted position that the petitioner's name figures at Sr. No. 138 of the recommendees. It is contended that the recommendations of the Board were beyond the requisition made by the Govt. and it was not possible to appoint those candidates, who were recommended beyond Sr. No. 130. The respondents have, however, admitted the directions issued by the Hon'ble Supreme Court in SLP No. 10354 of 1991. As regards the question of seniority is concerned, it is stated that the seniority has been assigned on the basis of their joining the service. I have heard learned counsel for the parties. The stand of the respondents is apparently contrary to the directions of the Hon'ble Supreme Court in its order passed in SLP No. 10354 of 1991. It is admitted position of the parties that the petitioner was appointed consequent upon the directions of the Hon'ble Supreme Court. Direction No.1 clearly provides the State to appoint the remaining selectees as recommended by the Board. It is also not in dispute that the petitioner is one of the recommendees at Sr. No. 138 amongst 238 recommendees as per the State and 188 as per the petitioner. In any case the petitioner is amongst the recommendees. Pursuant to the aforesaid direction, the petitioner has CWP. No. 19836 of 2008 -4- been given appointment. Para 4 of the directions of the Hon'ble Supreme Court further directs for determination of the seniority of the appointees/recommendees on the basis of the merit assigned by the Haryana Services Selection Board. The petitioner's merit is at Sr. No. 138 and thus, in view of the aforesaid direction the petitioner is entitled to be placed in the seniority not from the date of joining but on the basis of the merit assigned by the Haryana Subordinate Services Selection Board. Apart from above, the seniority of the petitioner is required to be fixed in accordance with Rule 11 of the Haryana State Education School Cadre (Group C) Service Rules, 1998, which reads as under:- “ 11. Seniority:- Seniority inter se of the members of the service shall be determined by the length of continuous service on any post in the service: Provided that where there are different cadres in the service, the seniority shall be determined separately for each cadre: Provided further that in the case of a member appointed by direct recruitment, the order of merit determined by the Commission or any other recruiting authority as the case may, shall not be disturbed in fixing the seniority.” Proviso 2 of the aforesaid rule provides for determination of the seniority of the direct recruits in the order of the merit determined by commission or any other recruiting authority as the case may be. Therefore, the statutory provisions also enjoins duty upon the respondents to fix the seniority on the basis of the merit of the candidates fixed by the recruiting authority at the time of the selection. CWP. No. 19836 of 2008 -5- In view of the categorical unambiguous directions of the Hon'ble Supreme Court and the mandate of the statutory rules, the stand of the respondents is not justified. The impugned seniority list (Annexure P-6) is quashed to the extent it has fixed the seniority of the petitioner at Sr. No. 11109 with a further direction to place the petitioner in the seniority/gradation list on the basis of the merit assigned to her in the selection made by the Haryana Subordinate Services Selection Board at the appropriate place amongst the appointees/recommendees. Let the consequential seniority be fixed within a period of three months from today. Petition disposed of.

10.2.2010. Whether to be reported to the Reporters? Yes. (PERMOD KOHLI) JUDGE