Neelam Vats v. State of Haryana & Anr.

Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Appellant-plaintiff was appointed by transfer in the department of Commercial Taxation on 12.7.1994. While doing so, a condition (No.2) was imposed to the effect that her seniority will be fixed afresh as a new entrant from the date of joining in the office of D.E.T.C, Hisar as a Senior Scale Stenographer. Having accepted this conditional absorption, the appellant-plaintiff started making request for determining her seniority from the date of her initial appointment and not from the date of transfer/absorption. When this was not accepted, the appellant filed a suit, claiming that the condition so imposed to regulate her seniority was illegal, against the REGULAR SECOND APPEAL NO.2464 OF 2008 :{ 2 }: rules, null and void, besides being arbitrary, discriminatory etc. The appellant would plead that the respondents had imposed this condition being in the position of dominance about which she was in no position to contest or defy. This was also stated to be in violation of the principles of natural justice and the service rules. In the written statement filed, the factual position has been disclosed. It is stated that the appellant was working as Junior Scale Stenographer in the Command Area Development Authority, Hisar, when she submitted an application to the Excise and Taxation Commissioner, after obtaining no objection from the said Command Area Authority, whose office was shifted to Manimajra from Hisar. No vacancy, however, was circulated, yet the appointment letter was issued on 12.7.1994 with the condition as referred above. It was clarified to the appellant that she would be entitled to the benefit of previous service towards pay and allowance but would not be assigned seniority by counting her previous service. This was stated to be in accordance with the rules, which provided that the seniority of the members of the service shall be determined by the length of continuos service on any post in the service. It is pointed out that the appellant had first made a request for her absorption in the Department on her own and subsequently joined the department accepting the condition without making any challenge. She did not file any representation till she issued a notice dated 11.7.1997. In the reply, it is also stated that the appellant would not be entitled to higher standard scale on the basis of service rendered by her in her parent department as service rendered in the Government is counted REGULAR SECOND APPEAL NO.2464 OF 2008 :{ 3 }: for this purpose and accordingly she did not fulfill the condition of 10 years Government service for making her eligible for grant of higher standard scale. The suit was tried on the following issues:- “1. Whether the plaintiff is entitled to get his previous service benefits as alleged? OPP

2. Whether the Civil Court has no jurisdiction to try and entertain the present suit? OPD

3. Whether the proper court fee has not been affixed on the plaint? OPD

4. Relief.” The trial Court dismissed the suit. Same was the fate of the appeal and, thus, the present Regular Second Appeal was filed. The counsel appearing for the appellant contends that he would not contest the prayer regarding grant of seniority but the decision not to consider her previous service rendered with Command Area Development Authority is not legally justified and this aspect of the matter has not been rightly considered by the Courts. Counsel would further contend that once the appellant was transferred to another Department, she would be entitled to count her previous service for the purpose of promotion. This service otherwise may not be counted for the purpose of seniority. The submission made on these lines can not be accepted in its entirely. Once the appellant has given up her claim for seniority, she certainly can not make claim for counting this service for the purpose of grant of promotion. The reference made by the counsel to the law laid down in Scientific Advisor to Raksha Mantri and another Vs. V.M.Joseph, 1998 (5) SCC 305 in support of this part REGULAR SECOND APPEAL NO.2464 OF 2008 :{ 4 }: of submission also would not be of any help. In this case, some service was rendered on an equivalent post in other organization before unilateral transfer on its own request. No doubt it was held that such service count for promotion, though it may not count for seniority. These observations were made by the Hon'ble Supreme Court while considering the aspect of eligibility for promotion. To say that seniority may not be granted but still it will be relevant for the purposes of promotion would be some thing of a contradictory nature. In V.M.Joseph's case (supra), the Supreme Court was considering the service for the purposes of experience and eligibility for promotion. The Court observed in no uncertain terms that eligibility for promotion can not be confused with seniority as these are two different factors. By making reference to the case of Union of India Vs. C.N.Ponnappan, (1996) 1) SCC 524, the Supreme Court observed that when an employee is transferred from one unit to another on compassionate ground and is placed at the bottom of seniority list, the service rendered by him at the earlier place from where he has been transferred being regular service has to be counted towards experience and eligibility for promotion. If the prayer made by the appellant herein is allowed, it would mean granting her seniority. The case as set up by the appellant is not that there was any condition towards experience or eligibility for promotion for which this service should be taken into consideration. What all can be observed is that in cases where experience is the requirement or if there is some provision made for making one eligible for promotion on completion of particulars years of service, then the service rendered in the parent department is countable. It would only be to REGULAR SECOND APPEAL NO.2464 OF 2008 :{ 5 }: see the eligibility or the experience for promotion and the promotion ultimately made would be on the basis of seniority in the new department. When specifically asked to point out if there was any condition of experience or eligibility for which the appellant would want her earlier service to be counted, the counsel candidly submitted that there is no such situation arising. The ratio of law to the above effect would emerge from Renu Mullick (Smt.) Vs. Union of India and another, (1994) 1 Supreme Court Cases 373. The Supreme Court in this case was also considering the eligibility condition and went on to observe that to count minimum length of service, the service rendered prior to unilateral transfers, would count for determining the eligibility condition. Following observations are relevant:- “The transferee is to be treated as a new entrant in the collectorate to which he is transferred for the purpose of seniority. It means that the appellant would come up for consideration for promotion as per her turn in the seniority list in the transferee unit and only if she has put in 2 years' service in the category of UDC. But when she is so considered, her past service in the previous collectorate cannot be ignored for the purposes of determining her eligibility as per Rule 4 aforesaid. Her seniority in the previous collectorate is taken away for the purpose of counting her seniority in the new charge but that has no relevance for judging her eligibility for promotion under Rule 4 which is a statutory rule. The eligibility for promotion has to be determined with reference to Rule 4 REGULAR SECOND APPEAL NO.2464 OF 2008 :{ 6 }: alone, which prescribes the criteria for eligibility. There is no other way of reading the instructions aforementioned. If the instructions are read the way the Tribunal has done, it may be open to challenge on the ground of arbitrariness.” Similar ratio of law would emerge from Dwijen Chandra Sarkar and another Vs. Union of India and others, (1999) 2 Supreme Court Cases 119, where the Supreme Court considered the aspect of time bound promotion in the background of counting past service. This was also a case of computation of the eligibility period of 16 years and the question was whether the service rendered by the employee prior to his transfer is to be counted or not. To compute the eligibility period, the service rendered in the earlier department prior to transfer was directed to be taken into account. Thus, the submissions made by learned counsel for the appellant that this service is to be counted for the purpose of promotion can not be accepted. The question of law has rightly been decided by the Courts and would not call for any interference. The Regular Second Appeal is accordingly dismissed. March 29, 2010 khurmi ( RANJIT SINGH ) JUDGE