Shashi Bhushan Kaushik vs Haryana State Industrial and Infrastructure Development Corporation Ltd. and Others

Rajesh Bindal, J.—The petitioner, who is working as Senior Manager (Accounts) in Haryana State Industrial and Infrastructure Development Corporation Ltd. (for short, ''the Corporation''), has approached this court impugning the promotion of respondent No, 3 to the post of Assistant General Manager and for a direction for consideration of his case for promotion as Assistant General Manager. Challenge has also been made to the seniority list of Senior Manager (Accounts), where respondent No. 3 has been shown senior to the petitioner. Learned counsel for the petitioner submitted that the Corporation advertised the posts of Manager (Accounts), in response to which the petitioner as well as respondent No. 3 applied. Both were recommended for appointment in the meeting of the Selection Committee held on 15.10.1998 (Annexure P-1). They were issued appointment letters on 20.11.1998. In terms of the condition laid down in the appointment letter, the selected candidates could join duty on or before 7.12.1998. Respondent No. 3 was already working in the Corporation, hence, he got the letter on the same day and joined his duty on 20.11.1998, whereas the petitioner received the letter by post and joined his duty on 27.11.1998. Both were promoted from the post of Manager (Accounts) to Senior Manager (Accounts) on 27.6.2007. Though the petitioner should have been considered senior to respondent No. 3 being higher in merit, but still ignoring his claim, respondent No. 3 was promoted as Assistant General Manager on 14.9.2011.

In support of his plea that the petitioner is to rank senior to respondent No. 3, reference has been made to clause 5 of the appointment letter, wherein it was specifically provided that newly appointed persons will be governed by the Haryana State Industrial Development Corporation Employee''s Service Bye-laws (for short, ''Service Bye-Laws'') of the Corporation except inter-se seniority, which shall be determined in terms of the amendment being made in the Service Bye-laws providing for inter-se seniority according to the merit list drawn by the Selection Committee as against the existing provision of inter-se seniority based on the date of joining. He further referred to document (Annexure P-1), i.e., recommendations made by the Selection Committee, where the petitioner was shown at Sr. No. 2 in the merit list and respondent No. 3 was shown at Sr. No. 3.

On the other hand, learned counsel for the respondents submitted that tentative seniority list of Senior Manager (Accounts) was circulated on 21.5.2010, in response to which a representation was made by the petitioner as well as respondent No. 3, praying for separate seniority lists for specialized and non-specialized cadres, where the petitioner conceded that respondent No. 3 be placed at Sr. No. 1 in that seniority list. Learned counsel further submitted that at the time when the appointments were made, Service-Bye Laws of 1964 were in force, in terms of which seniority was to be determined on the basis of date of substantive appointment and further in case of direct recruitment, a person older in age shall rank senior to younger. He further submitted that the amendment made in the Service-Bye Laws providing for grant of seniority on the basis of merit position in the selection list was made on 5.2.1999, which was prospective in operation, hence, the petitioner cannot get the benefit thereof. He further submitted that in all the appointment letters, now being issued, it has been specifically mentioned that Service Bye-Laws of the Corporation are applicable.

Heard learned counsel for the parties and perused the paper book.

The facts of the case, which are not in dispute, are that both the petitioner as well as respondent No. 3 were appointed as Manager (Accounts) vide letters of appointment dated 20.11.1998 in response to the selection made on direct recruitment basis. Prior to that, respondent No. 3 was working in the Corporation on some lower post. In terms of the letter of appointment, issued on 20.11.1998, for the post of Manager (Accounts), respondent No. 3 joined on the same day, whereas the petitioner joined on 27.11.1998. Both were promoted as Senior Manager (Accounts) on 27.6.2007. There is nothing on record to show that any seniority list was circulated in the cadre of Manager (Accounts). The first tentative seniority list was circulated on 21.5.2010 in the cadre of Senior Manager (Accounts), in which respondent No. 3 was shown at Sr. No. 4, whereas the petitioner was shown at Sr. No. 5. Subsequent thereto, respondent No. 3 was promoted from the post of Senior Manager (Accounts) to the post of Assistant General Manager by relaxing the minimum service condition of five years, vide order dated 14.9.2011.

The issue under consideration is as to whether the petitioner who was ranked senior to respondent No. 3 as Manager (Accounts) in the merit list of selected candidates is entitled to be promoted as Assistant General Manager before respondent No. 3.

To appreciate the contentions raised by learned counsel for the parties, it would be appropriate to extract the condition regarding seniority imposed in the letter of appointment as Manager (Accounts) and also the merit list prepared by the Selection Committee at the time of making recommendations for appointment. The same are as under:--

Condition regarding seniority in the letter of appointment

You will be governed by the Service Bye Laws of this Corporation except that the inter se seniority will be determined subject to the amendment in the service bye laws which is under consideration of the Corporation and that inter alia provides for inter se seniority according to the merit list drawn by the Selection Committee as against the existing provision of inter se seniority based on the date of joining.

Recommendations of the Selection Committee

1.4 Candidates were called for interview today i.e. On 15.10.1998 based on their performance in the written test. 13 candidates appeared for interview at 11.00 a.m. and the interviews lasted for 3 hours. On the basis of performance at the time of interview, qualifications and experience, the Selection Committee recommends the following candidates for appointment in order of merit:--

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From a perusal of condition No. 5 mentioned in the letter of appointment, it is clear that the appointee shall be governed by the Service Bye Laws of the Corporation except that inter-se seniority will be determined in terms of the amendment in the Service Bye-Laws, which is under consideration. The same, inter-alia, provides that inter-se seniority shall be according to the merit list drawn by the Selection Committee as against the existing provision of inter-se seniority based on the date of joining. A perusal of the merit list, as prepared by the Selection Committee, clearly shows that the name of the petitioner finds mention at Sr. No. 2, whereas name of respondent No. 3 is at Sr. No. 3. In terms of the condition laid down in the letter of appointment, seniority in the cadre of Manager (Accounts) was to be determined as per the merit list and in view of that the petitioner would rank senior to respondent No. 3. Undisputedly, both of them were promoted as Senior Manager (Accounts) on 27.6.2007, hence, at that stage, there was no issue as to who was senior or junior. In fact, the admitted case of the parties is that no seniority list in the cadre of Manager (Accounts) was circulated so as to enable any of the parties to raise any objection.

The contention raised by learned counsel for the respondents that the amendment made in the Service Bye-Laws on 5.2.1999 was prospective and is not applicable in the case of the petitioner is merely to be noticed and rejected. Once it has been specifically mentioned in the letter of appointment that the amendment being made in the Service Bye Laws pertaining to inter-se seniority of the candidates shall be applicable, nothing lies in the mouth of the respondents to raise such a plea. Even the plea about the admission of the petitioner regarding his placement in the seniority in the representation dated 3.5.2010 (Annexure R-1) is also mis-conceived, as the issue sought to be raised therein was regarding preparation of separate seniority lists of specialized and non-specialized cadres in the Accounts Division. For the reasons mentioned above, the writ petition is allowed. The promotion of respondent No. 3 as Assistant General Manager is set aside. The petitioner is held senior to respondent No. 3 as Senior Manager (Accounts). He is entitled to be considered for promotion to the post of Assistant General Manager as per rules before respondent No. 3.