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Judgment
M.M.S. Bedi, J.—The petitioner is aggrieved by an order passed by Director General, Higher Education, Haryana, Panchkula, annexure P-4 which is reproduced hereunder:-
From
Director General Higher Education,
Haryana, Panchkula
To
ADC, Panipat-cum-Administrator,
Governing Body, IB College, Panipat.
Memo. No. 3/3-2013 C-IV (3)
Dated, Panchkula, the 3.9.13.
Subject: Clarification regarding seniority of Dr. V.K. Gupta, Associate Professor in Mathematics, IB College, Panipat.
Kindly refer to your letter No. IBC/793/13 dated 30.7.2013 on the subject cited above.
After thorough examination of the subject cited matter, in the light of the provisions of Haryana Affiliated Colleges (Security of Service) Rules, 1993 and Haryana Affiliated Colleges (Security of Service) Rules, 2006 and clarification issued by this department vide Memo. No. 2176-2/112-85 CIV (3) dated 7.10.1991, it is evident that Dr. V.K. Gupta is the senior most lecturer in IB College, Panipat. Hence, according to the provisions of Kurukshetra University Calendar Volume I, 2009, the officiating charge of the Principal, be given to him with immediate effect.
Sd/- Deputy Director-IV, For Director General Higher Education, Haryana, Panchkula.
Endst. No. Even Dated, Panchkula the
A perusal of the above said order indicates that the said order has been passed on the basis of a communication dated July 30, 2013. The Director General has formed an opinion that respondent No. 4 Dr. Vijay Gupta, is senior most Lecturer in I.B. College, Panipat as such according to the Haryana University Calendar Volume I, 2009, officiating charge of the Principal should be given to him with immediate effect.
Grievance of the petitioner is that respondent No. 4 had filed a writ petition No. 23010 of 2011 with a grievance that Mrs. Renu Sharma, (Petitioner) had been arbitrarily declared senior to him. The said writ petition was dismissed vide judgment dated May 24, 2012. Dr. Vijay Gupta, respondent No. 4 preferred an LPA No. 1371 of 2012 which is listed for hearing on December 13, 2013. Grievance of the petitioner further is that despite the claim of respondent No. 4 regarding seniority having been rejected vis-�-vis the petitioner vide judgment dated May 24, 2012 which holds the field till date, the Director General, has with one line order set aside the decision dated May 24, 2012 which is subject matter of LPA.
The impugned order mentioned hereinabove reflected that the decision to declare Dr. Vijay Gupta as senior most Lecturer in the College has been taken by Director General, Higher Education, Haryana on September 3, 2013 without taking into consideration the judgment of this Court dated May 24, 2012 and the pendency of LPA against the said order.
Respondents have filed separate written statements referring to Rule 9(1) of Haryana Affiliated Colleges (Security of Service) Rules, 2006, hereinafter referred to as ''2006 Rules'', to contend that the seniority of the employees shall be determined by length of continuous service on a post in the college and if there are different cadres in the service, the seniority shall be determined separately for each cadre. It has been claimed by the respondents that as per the 2006 Rules, the categories of Lecturers in Physical Education and other employees are different and seniority list of all the categories are to be prepared separately as such these cannot be merged. So far as the decision in CWP No. 23010 of 2011 titled Vijay Gupta Vs. State of Haryana and others, decided on May 24, 2012 is concerned, it has been averred that fixation of seniority is an administrative matter and needs administrative intervention whenever there is contravention to the statutory rules. It appears that the representation of respondent No. 4 dated July 19, 2013 (annexure R-2-2) has been made basis for passing the impugned order by the Director General.
I have heard counsel for the parties, gone through the pleadings and seen the original record. In the representation dated July 19, 2013 submitted by respondent No. 4, annexure R-2/2, addressed to the Director General, Higher Education, Haryana, claiming himself senior to petitioner (Mrs. Renu Sharma) a confirmed lady DPE, a request has been made to decide his seniority as he is to retire in the month of December 2013. Surprisingly, no reference has been made to the decision of this Court in CWP No. 23010 of 2011 or the pendency of LPA which is pertaining to the dispute regarding seniority of respondent No. 4. The representation of respondent No. 4 Annexure R-2/2 dated July 19, 2013 was forwarded by the ADC-cum-Administrator, IB College, Panipat, to the Director General vide a letter dated July 30, 2013. The said letter is reproduced hereunder:-
From
ADC-cum-Administrator IB College, Panipat.
To
The Director General, Higher Education, Haryana Shiksha Sadan, Sector 5, Panchkula.
No. IBC/793/13 Dated: 30.7.2013
Sub: Representation of Dr. V.K. Gupta, HOD (Mathematics) regarding violation of Statutory Rules of the Haryana Affiliated Colleges (Security of Service) Rules, 1993 and 2006 and Haryana Government orders in the fixation of Lecturer''s seniority, in I.B. College Panipat and request to decide the Seniority of Dr. V.K. Gupta.
Dear Sir,
Dr. V.K. Gupta, Associate Professor, I.B. College, Panipat has submitted a representation addressed to you, on the subject cited above and requested to the undersigned to forward the same to your office.
As per representation, he had filed a CWP No. 23010 of 2011 which has already been dismissed. He had further stated that LPA has also been filed by him bearing No. 1371 of 2012 (O & M) which was earlier fixed for 16.5.2013 and now the same is fixed for 26.8.2013 for adjudication. Hence, the representation alongwith its enclosures received from Dr. V.K. Gupta is forwarded in original for taking the further decision at your end please.
Sd/- ADC-cum-Administrator, IB College, Panipat.
Endst. No. IBC/794/13 dated: 30.7.2013
A copy is forwarded to the Principal Secretary to Govt. of Haryana, Education Deptt. Chandigarh for information please.
Sd/- ADC-cum-Administrator, IB College, Panipat.
It is apparent that while forwarding the letter to the Director Genera, a reference was made to the writ petition filed by respondent No. 4 which stood dismissed and about the pendency of the LPA with next date of hearing but the Director General intentionally without bothering to refer to the decision in civil writ petition or pendency of the LPA has passed the impugned order annexure P-4 dated September 3, 2013. The decision annexure P-4 dated September 30, 2013 deserves to be set aside solely on the ground that the decision of this Court in CWP No. 23010 of 2011 which was specifically brought to the notice of the Director General by the Administrator of the College in the forwarding letter has neither been considered nor an attempt was made to determine the spirit of the order. No doubt, the Director General could have arrived at the same conclusion but when an order is passed, by intentionally avoiding the judicial decision, the order cannot be said to be a legal order. Even otherwise, the order has been passed at the back of the petitioner without giving her an opportunity of hearing regarding seniority as she was specifically impleaded as a party in the lis initiated by respondent No. 4. The judgment annexure P-2 governs the rights of respondent No. 4 and the petitioner till it is set aside by higher Court.
I have appreciated the contention of learned counsel for respondent No. 4 that his seniority has not been determined in accordance with the Rules and that he is going to retire in December 2013. The said contention could have been raised by respondent No. 4 in his LPA for seeking expeditious adjudication of his rights, he being on the verge of retirement and being aspirant for the post of Principal on the basis of his alleged seniority.
The order annexure P-4 dated September 3, 2013 is hereby quashed with liberty to the Director General, Higher Education, Haryana to reconsider the claim of respondent No. 4 in accordance with law without ignoring any decision of the Court on the subject matter of seniority.
Allowed in the aforesaid terms. It will be appreciated in case the matter is concerned expeditiously subject to any other direction by any other Bench.