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Judgment
Immaneni Panduranga Rao, J.—This writ petition is filed seeking a Writ of Mandamus directing the first respondent to count the petitioner''s service with effect from 8-11-1976 and to refix his seniority by placing him as senior to Respondents 2 to 15 with consequential benefits like promotion etc.
The petitioner''s case is that he was selected by a regularly constituted selection committee as a Telephone Operator after conducting an interview on 21-5-1975. He was appointed by Proceedings dated 6-6-1975 upto 11-7-1975 in a leave vacancy. Subsequently he was appointed again by Proceedings dated 14-7-1975 in a maternity leave vacancy. According to the petitioner, his name was sponsored by the Employment Exchange alongwith others and he was selected to fill-up a clear vacancy and that there were two permanent posts of Telephone Operators vacant in the first respondent-Institute at the time of his selection. However, he was issued appointment orders dated 10-10-1977, 6-11-1977, 14-4-1978, 12-7-1978, 16-10-1978, 16-1-1979, 17-4-1979, 18-7-1979 and 22-1-1980 with a break of one or two days. On the ground that the petitioner has served as a Telephone Operator from 8-11-1976 to 30-9-1977 and from 10-10-1977 to 30-4-1980 with breaks of one or two days, he claims that his seniority should be fixed with effect from 8-11-1976 when he has joined in pursuance of the Proceedings dated 5-11-1976, though the first respondent by its Proceedings dated 19-5-1980 has given the order of appointment to the petitioner on a regular basis from 2-5-1980.
After his regular appointment the petitioner made representation on 9-2-1983. The first respondent without conceding the request of the petitioner, has issued Proceedings dated 17-5-1983 giving the petitioner three increments and refixing his pay but fixing the seniority only from 2-5-1980. As his representations dated 24-9-1986, 28-11-1986 and 11-3-1987 reiterating his request did not have the desired effect, the petitioner has filed this writ petition.
The learned Counsel for the petitioner submitted that the petitioner was regularly selected as a direct recruit in the year 1975 by which time the recruitment rules of 1969 were in force; that at that time there were two clear vacancies; that it is only in the recruitment rules of 1977 which came into force on 18-4-1977 that a pass in typewriting test was included; that even otherwise the petitioner passed the typewriting examination in November 1979 and communicated that fact to the first respondent and that the petitioner is entitled to claim seniority with effect from 8-11-1976.
The learned Counsel for the first respondent, on the other hand, submitted that the petitioner was appointed only in a leave vacancy and, as such, it is only the Temporary Service Rules that apply to the petitioner; that respondents 14 and 15 were appointed as Typists which belongs to a different category altogether and that since the petitioner was appointed only in a leave vacancy, he cannot claim seniority with effect from 8-11-1976. Relying upon the averments in the counter-affidavit, wherein the various orders of appointment are given in a tabular form, the learned Standing Counsel for the first respondent argued that all the appointments are only temporary in nature and, hence, the request of the petitioner is untenable.
Though there is a specific allegation in the affidavit filed in support of the petition that there are two permanent vacancies of Telephone Operators in the first respondent-Institute; mat his name was sponsored by the Employment Exchange alongwith others and that he was selected to fill up a clear vacancy, these allegations are not specifically denied in the counter-affidavit filed on behalf of the first respondent. The very fact that the petitioner was appointed between 1977 and 1980 under different appointment orders with breaks of service in between shows that there was clear vacancy. When there is a clear vacancy, appointing the petitioner in temporary vacancy is irregular.
The Supreme Court in Damodar Valley Corporation v. Mridul Kumar, Vol. 50 198 (1) SLR 322 held that prescribing qualifying test as a condition precedent for further promotion will be effective prospectively but it will not affect those who are already promoted without insistence upon the qualifying test for promotion. While observing that it is always open to the employer to make regulations prospectively regulating the conditions of service, the learned Judges directed that the promotions already effected shall not be challenged on the ground that screening or departmental tests were not cleared by those who had been promoted. The Supreme Court directed that the passing of the examination has no effect on the seniority in the present categories and that if the seniority lists have been drawn up taking into account the passing and non-passing of examinations appropriate revision should be effected. Following the decision of the Supreme Court referred to above, I hold that when there is no requirement of typewriting in 1969 Rules which were in force when the petitioner was interviewed on 21-5-1975, the requirement of a pass in typewriting which was introduced in the Recruitment Rules of 1977 which came into force on 18-4-1977 cannot be made applicable to the petitioner.
The Supreme Court in Sri Rabinarayan Mohapartra Vs. State of Orissa and others, has deprecated the practice of the employer in making appointments for 89 days with one day break thereby depriving the employee of his salary for the period of summer vacation (in the case of a teacher) and other service benefits. Their Lordships condemned such practice as wholly arbitrary suffering from the vice of discrimination. In the case before the Supreme Court the appellant was appointed on 12th July, 1982 and has been working with the approval of the managing committee for almost four years with short breaks. The managing committee still utilised his services though there was no approval by the educational authorities for the period subsequent to 1986. Under these circumstances, the learned Judges directed the respondents to treat the appellant as the regularly appointed Hindi Pandit in the School with effect from 12th July,1982 and further held that he is entitled to his salary including the salary for summer vacation and other breaks which must be taken as non-est from the date of his regular appointment i.e., 12th July, 1982.
The Supreme Court in Sushil Kumar v. Union of India, 1986 L.I.C. 1105 considered the case of a temporary teacher in Kendriya Vidyalaya Sangathan whose services were terminated after three years. A fresh appointment was given to him but expressly without benefit of past service. The Supreme Court held that he was entitled to the benefit of continuous service notwithstanding the term to the contrary in his fresh appointment. Though the appointment was to a temporary post and it is specifically mentioned in the subsequent order of appointment that no benefit of the previous service rendered by him in Kendriya Vidyalaya Sangathan would be admissible, the Supreme Court held that the appellant was entitled to condonation of the break in his service despite the term to the contrary in his fresh appointment. Though the terms on which he was appointed afresh expressly stated mat he would not be entitled to continuity of service, the Supreme Courtheld that the appellant was in no position to bargain for a better deal and he was compelled to accept whatever was dictated to him.
Applying the decisions referred to above to the facts of this case it is seen from the order dt. 14-5-1975 that the petitioner was informed that the appointment was purely temporary and that it would stand terminated as soon as Smt. J.J. Ramchander, reported for duty. Accordingly, the services of the petitioner were terminated with effect from 31-7-1975 afternoon consequent on Smt. J.J. Ramchander reporting for duty. In spite of the fact that the subsequent order of appointment dt. 5-11-1976 describes the appointment as purely temporary, the petitioner continued in service without break till 30-9-1977 and thereafter he was continued in service till 30-4-1980 with breaks of two or three days in between as indicated in page two of the counter-affidavit. The specific allegation in the affidavit filed in support of the writ petition that there were two permanent vacancies of Telephone Operators in the first respondent-Institute on the date of his interview and appointment not having been specifically denied, I hold that the petitioner is entitled for regularisation of his service with effect from 8-11-1976 when he has reported to duty in response to the order of appointment dated 5-11-1976. The very fact that the first respondent issued Proceedings dt. 17-5-1983 giving the petitioner three increments and refixing the pay of the petitioner shows that the first respondent was convinced of the injustice caused to the petitioner by virtue of the orders of temporary appointment issued to him from time to time. Having realised that mistake, the first respondent has erred in not fixing the seniority of the petitioner with effect from 8-11-1976.
The petitioner has impleaded the persons who are going to be affected as respondents 2 to 15. It is submitted by the learned Counsel for the petitioner that respondents 2 to 15 have been served with notices in the writ petition but they have not chosen to appear either in person or through their Counsel and to contest the writ petition. However respondents 14 and 15 are said to belong to a different category altogether and their seniority will not be affected.
The writ petition is, therefore, allowed directing the first respondents to refix the seniority of the petitioner with effect from 8-11-1976 and as senior to respondents 2 to 13 with all consequential benefits due to the petitioner by virtue of the re-fixation. No costs.