Kanta Sharma vs State Of Punjab & Ors.

Sandeep Moudgil, J.

(1). The jurisdiction of this Court has been invoked under Article 226 of the Constitution of India, inter alia, for issuing a writ of certiorari for quashing the impugned order dated 04.10.2001 (Annexure P5) whereby the petitioner has been given seniority as Clerk w.e.f. 11.06.1968 i.e. the date from when Amarjit Singh Sodhi was given seniority as Clerk, however, his seniority as Senior Assistant has been fixed w.e.f. 07.01.1986 and as Superintendent w.e.f. 07.01.1993 on the divisional basis.

(2). The petitioner was appointed as a Clerk in the Excise and Taxation Department on 07.07.1967 and was regularized w.e.f. 03.03.1969. She passed the Assistant Grade Examination on 18.09.1985 and was promoted as Senior Assistant on 07.01.1986 and thereafter as Superintendent on 07.01.1993. Her grievance is that although this Court in RSA No.63 of 1991 held that under Rule 10 of the Punjab Excise and Taxation Department Subordinate Offices (Ministerial) Class III Service Rules, 1964 (in short the 1964 Rules), the seniority of ministerial employees was required to be maintained at the State level and not at the Divisional level, the respondents continued to determine her promotional seniority at Divisional level, resulting in denial of her promotion to the post of Excise and Taxation Officer while extending such benefit to persons allegedly junior to her.

(3). The record reveals that pursuant to the directions issued by this Court vide order dated 19.07.2001 in CWP No.10308 of 2001, the impugned order dated 04.10.2001 came to be passed whereby the respondents granted the petitioner the benefit of seniority as Clerk w.e.f. 11.06.1968, but held that her dates of promotion as Senior Assistant and Superintendent would continue to remain 07.01.1986 and 07.01.1993, respectively.

(4). Hence this writ petition.

(5). Learned counsel for the petitioner submits that once this Court, in RSA No.63 of 1991, declared that the executive instructions dated 31.10.1988 providing for divisional seniority were contrary to the statutory Rules and held that seniority was required to be maintained at the State level, the respondents could not have continued to determine the petitioner's promotional seniority on divisional basis. It is argued that had the statutory Rules been correctly implemented, the petitioner would have ranked senior to Chander Kanta, Amarjit Singh Kahlon and Harjit Singh Bedi and consequently would have been promoted as Excise and Taxation Officer against the vacancies available prior to abolition of the promotional quota.

(6). Per contra, learned State counsel submits that the respondents duly reconsidered the petitioner's representation in compliance with the earlier directions issued by this Court. It is contended that although the petitioner's seniority as Clerk was revised, no change was required in her dates of promotion as Senior Assistant and Superintendent. It is further submitted that the officers with whom comparison has been sought, belonged to different Divisions and had earned their promotions against vacancies available in their respective Divisions under the then prevailing seniority arrangement. It is also submitted that the litigation concerning the divisional seniority attained finality on 06.05.1996 and, therefore, promotions made prior thereto could not be reopened. Lastly, it is contended that the promotional quota available to the ministerial staff for appointment as Excise and Taxation Officer stood abolished w.e.f. 27.01.1992 and, therefore, no enforceable right survived in favour of the petitioner.

(7). Heard learned counsel for the parties and the judgment was kept reserved on 03.07.2026.

(8). There is no dispute with the proposition that the statutory service rules would prevail over executive instructions inconsistent therewith. The petitioner specifically relies upon the judgment rendered by this Court in RSA No.63 of 1991, whereby the legal position regarding maintenance of seniority at the State level under the applicable statutory Rules was declared. The respondents themselves rely upon the said litigation and have placed on record the instructions dated 31.10.1988 (Annexure R-1) and the subsequent communication dated 02.06.1996 (Annexure R-2). Thus, the controversy is not as to whether the respondents were required to ultimately prepare State-level seniority, but whether the petitioner's claim could nevertheless be rejected by merely asserting that the employees with whom she sought comparison had been promoted earlier in their respective Divisions.

(9). The petitioner has pleaded specific facts forming the basis of her grievance, namely, her date of appointment and regularization, her dates of promotion, the dates on which vacancies of Excise and Taxation Officers allegedly became available and the names and dates of promotion of the employees whom she claims to be junior to her. The petitioner joined the respondent-Department as Clerk on 07.07.1967 and passed the departmental examination on 18.09.1985 whereafter she was promoted as Senior Assistant on 07.01.1986 whereas Smt. Chander Kanta joined as Clerk on 06.08.1968 and passed the said examination on 14.09.1986 followed by her promotion as Senior Assistant on 24.11.1986 and as such, she is junior ot he petitioner in all aspects.

(10). The respondents, in answer thereto, have taken a specific and positive stand that the said employees were not junior to the petitioner because the seniority of the ministerial staff was being maintained on divisional basis and that, even on the subsequent State-level seniority exercise, the petitioner continued to rank below them. The aforesaid assertion constituted the very basis for denying the petitioner's claim. Therefore, once such a specific defence was taken by the respondents, it was incumbent upon them to substantiate the same from the relevant official record. Significantly, the respondents have placed no seniority list, comparative statement or other contemporaneous record to demonstrate the petitioner's inter se position vis-à-vis Chander Kanta, Amarjit Singh Kahlon and Harjit Singh Bedi or to show how her claim was considered against the vacancies which had arisen prior to 27.01.1992.

(11). The petitioner having laid the factual foundation of her claim, the respondents, who relied upon the departmental seniority position to deny it, were required to substantiate that position from the official record maintained by them. A mere assertion in the written statement that the other employees were senior cannot substitute such record. Likewise, the abolition of the ministerial quota for promotion to the post of Excise and Taxation Officer w.e.f. 27.01.1992 does not answer the petitioner's claim in respect of vacancies which, according to her, had arisen prior thereto. The respondents were required to establish that she was not entitled to consideration against such vacancies on the basis of the legally applicable seniority and eligibility, once she stood promoted to the post of Clerk w.e.f. 11.06.1968 in view of ratio of RSA-63-1991.

(12). This Court is conscious that correction of seniority does not, by itself, confer an automatic right to retrospective promotion. However, before denying such consequential consideration, the respondents were required to determine the petitioner's claim on the basis of the State-level seniority mandated under the statutory Rules and keeping in view the essence of the judgment of this Court in RSA No.63 of 1991 and justify the denial of promotions to the petitioner. In the absence of the relevant material demonstrating that, even on such basis, the petitioner remained junior to the persons relied upon by her, the impugned decision cannot be sustained.

(13). Consequently, the writ petition is allowed. The impugned order dated 04.10.2001 (Annexure P-5), insofar as it maintains the petitioner's promotional seniority as Senior Assistant and Superintendent on divisional basis and consequentially denies consideration of her claim for promotion from the date her juniors were promoted, is set aside. The respondents are directed to reconsider the petitioner's seniority and consequential claim for promotion with reference to the vacancies which had arisen prior to 27.01.1992, by applying the legally permissible State-level seniority in accordance with the statutory Rules and the judgment in RSA No.63 of 1991. If, upon such reconsideration, the petitioner is found entitled to promotion including that of as Excise and Taxation Officer, she shall be granted the deemed date of promotion with all consequential benefits, including notional seniority, as admissible in law. The exercise shall be completed within three months from the date of receipt of a certified copy of this order and in case she is found entitled to, the necessary service/monetary benefits shall be worked out and disbursed to her within one month thereafter with interest @ 6% p.a. from the date they became due till its actual realisation.

(14). The present writ petition stands allowed in the aforesaid terms.

(15). Pending application(s), if any, stands disposed of.