Arun Kumar vs State of Jharkhand And Ors

Heard, Mr. A.K. Sahani,, learned counsel for the petitioner and Mr. Rohit Sinha, learned counsel for the respondent-State.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

The petitioner preferred this writ petition for quashing of office order dated 26.12.2019 contained in annexure-3 whereby the promotion granted to the petitioner to the post of Junior Accounts Clerk on the pay scale of Rs. 3050-4590 has been cancelled.

The petitioner was initially appointed on the post of peon in the office of Rural Engineering Organisation, Work Circle, Hazaribagh after roster clearance on the pay scale of Rs. 775-1025. By office order dated 21.05.2008 the petitioner was promoted from Class-IV post to Assistant Accounts Clerk (Class-III post) against the vacancy on the pay scale of Rs, 3050-4590/-. The petitioner has already passed the Hindi Noting & Drafting Examination on 07.12.2011 and the said certificate has been brought on record by way of Annexure-1 to the writ petition. The petitioner passed Accounts examination on 11.05.2013. The petitioner was posted as Junior Accounts Clerk in the office of the respondent no. 3. Vide office order dated 26.12.2019, the promotion of the petitioner has been cancelled.

Mr. A.K. Sahani, learned counsel for the petitioner assailed the impugned order on the ground that the impugned order has been issued without following the principle of nature justice and without any enquiry or show-cause impugned order has been passed. He submits that there is no any misrepresentation on the part of the petitioner and in that view of the matter the impugned order is bad in law. He draws the attention of the Court to the letter dated 05.09.2005 and submits that by way of this letter, the Personnel Administrative Reforms and Rajbhasha Department has issued decision whereby it has been informed that for the promotion from Class-IV post to Class-III post letter dated 16.09.1992 is applicable in the State of Jharkhand. He submits that in that view of this letter and after following all the procedure of law, Establishment Committee has considered and passed the appropriate order with regard to different employee thereafter the petitioner has been given promotion. He submits that this letter was followed in its true spirit thereafter the Establishment Committee has come to that conclusion. He further submits that only in the counter-affidavit another letter dated 17.12.2011 has been annexed as Annexure-C whereby it was informed that only letter no. 11243 dated 06.12.1995 is preferable for promotion from Class-IV post to Class-III post. He submits that by way of this letter the entire criteria of the promotion is same only it has been added that will be process through the Bihar Public Service Commission. He submits that there is no misrepresentation on the part of the petitioner and in that view of the matter the impugned order is not sustainable in the eye of law. To buttress his argument he relied on judgment in the case of "Kusheswar Nath Pandey Vs. State of Bihar & Ors." reported in Manu/SC/0837/2013. The relevant para of the said judgment is quoted here- in-below:-

"10. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The Appellant was not at all in any way at fault. It was a time bound promotion which was given to him and some eleven years thereafter, the Authorities of the Bihar Government woke up and according to them the time bound promotion was wrongly given and then the relevant rules are being relied upon and that too after the Appellant passed the required examination."

Learned counsel for the petitioner further relied on judgment in the case of "Siraj Ahmad Vs. State of Uttar Pradesh & Anr" Civil Appeal No. 9412 of 2019 (Arising out of SLP(C) No. 30061 of 2017), particularly paragraph nos. 11, 12, 13 and 29 of the said judgment. Learned counsel for the petitioner further submits that only on the basis of complaint of one Manoj Kumar Jha whose case was not considered by the Establishment Committee, the said action has been taken against the petitioner. Earlier Mr. Manoj Kumar Jha has moved W.P.(S) No. 2004 of 2013 before this Court which was dismissed for default vide order dated 27.08.2015. Thereafter, this action has been taken. He refers Annexure-E of the counter-affidavit.

Per contra, Mr. Rohit Sinha, learned counsel for the respondent-State submits that this is not the fact that the action has been taken pursuant to complaint made by one Manoj Kumar Jha. He submits that the promotion of the petitioner was dehors the rule. Referring to the letter dated 17.12.2011, he submits that letter dated 11243 dated 06.12.1995 was preferable in the State of Jharkhand for promotion from the Class-IV post to Class-III post . He submits that in that view of the matter the case of the petitioner was not considered by the Bihar Public Service Commission and promotion was made which is not in accordance with law. He submits that sofar as the principle of natural justice is concerned, it is not applicable in the facts and circumstances of the present case. He relied on judgment in the case of "Sitaram Thakur Vs. The State of Bihar and Others" reported in 1992 SCC Online Pat 347. The said para 20 is quoted here-in-below:

"20. It is relevant to note that recently N. Jha, J. speaking for the division bench Teja Prasa Vs. State of Bihar reported 1992 (2) PLJR 568 has held that the principal of natural justice are not required to be ??? plied with when the appointment had ??? made in violation of the provisions of statute, although His Lordship was a part the Full Bench in Rajkishore Sinha's case."

Learned counsel for the respondent-State further relied on judgment in the case of " Union of India Vs. Dharam Pal ETC" Civil Appeal No. 948 of 2009 (Arising out of SLP (C)No. 5094 of 2006) and submits that in view of this judgment the case of the petitioner is fit to be rejected. Para 14 of the said judgment is quoted here-in-below:

"14. Indisputably, Rule 216 provides for ad hoc promotion against selection and non-selection posts.

In T. Vijayan (supra), this Court opined:

"18. The above para indicates that ad hoc promotion is permissible pending regular selection. Once ad hoc promotion is found to be permissible under the Rules and Respondents 4 to 143 were promoted on ad hoc basis in the exigencies of service, pending regular selection, which, incidentally, took sufficient time as Respondents 4 to 143 who were on official duty "online" were not available at one point or at one time to facilitate the selection, the entire period of ad hoc service will have to be counted towards their seniority, particularly as all the respondents (4 to 143) were duly selected and their services were also regularised with effect from 16-12-1991 by order dated 18-1-1992. The employees concerned, including Respondents 4 to 143 had already been alerted for the process of selection which had been started in 1988 (sic 1987). While making direct recruitment against posts which were advertised in 1985, it was given out to the present appellants that their absorption and seniority was subject, inter alia, to the finalisation of the selection to the post of First Fireman which was in progress. The appellants, as stated earlier, were selected in 1988 and were put on two years' training as Apprentices whereafter they were absorbed by order dated 18-7-1990 and were issued separate and individual appointment letters in which, it was clearly mentioned that their seniority was subject to the finalisation of the selection for promotion to the post of First Fireman which was in progress. The appellants, in this situation, cannot claim seniority over Respondents 4 to 143 who had already been appointed to the posts of First Firemen on ad hoc basis and were after due selection regularised on those posts."

Apart from the fact that in T. Vijayan (supra), the effect of Rule 302 of the Rules had not been taken into consideration, the question as to whether the seniority of the employees could have been reckoned only on the basis of their date of initial appointment irrespective of the fact as to whether in doing so the mandatory procedure laid down in the rules have been followed or not, had not been taken into consideration. It proceeded on the premise that as IREM permits ad hoc promotion, the date on and from which the employee concerned was promoted on an ad hoc basis would be relevant. It was decided keeping in view the peculiar fact situation obtaining therein. Respondents therein were promoted on ad hoc basis in a situation where regular promotion was not immediately possible. There was a huge time gap. A question as to whether the respondents therein were entitled to the benefit of ad hoc service rendered by them for the purpose of reckoning their seniority fell for consideration in the aforementioned situation. The direct recruits were appointed on probation in 1988 and were put to two years' training as Apprentice whereafter only they were absorbed in the service of the Railways with effect from 18.7.1990 subject to the finalization of the selection for promotion. It is in the aforementioned situation, the question of inter se seniority between the direct recruits and the promotees came up for consideration.

Even otherwise, the decision in T. Vijayan (supra) has no application to the fact of the present case. We have noticed hereinbefore that the question in regard to inter se seniority amongst the promotees on the one hand and the direct recruits on the other, are governed by Rule 302 of the Rules. It is now a well settled principle of law and in respect whereof there is absolutely no quarrel that in view of the decision of this Court in Direct Recruit Class-II Engineering Officers' Association & ors.vs. State of Maharashtra & ors.[(1990) 2 SCC 715] an employee appointed to a post according to rule would be entitled to get his seniority reckoned from the date of his appointment and not from the date of his confirmation. It is, however, also well settled that where the initial appointment is only ad hoc, not according to rules and made a stop-gap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority.

Rule 216 of IREM in no uncertain terms provides that such an appointment should be made for short duration vacancy only. Such orders of promotion are required to be made only upon obtaining the approval of Chief Personnel Officer. In the instant case, such an approval was not obtained. Approval was obtained only at the Divisional level. Even while extending the period of three months, the circular letter of the Board dated 23.2.1974 laying down for sanction of the General Manager, therefore, had not been complied with.

When an ad hoc appointment is made, the same must be done in terms of the rules for all purposes. If the mandatory provisions of the rules had not been complied with, in terms of Direct Recruit (supra), the period shall not be taken into consideration for the purpose of reckoning seniority. Furthermore, it is one thing to say that an appointment is made on an ad hoc basis but it is another thing to say that inter se seniority would be determined on the basis laid down in another rule.

This aspect of the matter has been considered by this Court in Swapan Kumar Pal & ors. vs. Samitabhar Chakraborty& ors. [(2001) 5 SCC 581], wherein this Court keeping in view the provisions of IREM held as under:

"...The next case relied upon by Mr Rao is the case of Suraj Parkash Gupta v. State of J&K. In the aforesaid case, on consideration of the relevant rules governing the service conditions of the Assistant Engineers of the Jammu and Kashmir Government, the Court had observed that ad hoc or temporary service of a person, appointed by transfer as an Assistant Engineer or by promotion as an Assistant Executive Engineer can be regularised through the Public Service Commission and Departmental Promotion Committee from an anterior date in a clear vacancy in his quota, if he is eligible and found suitable for such transfer or promotion, as the case may be, and his seniority will count from that date. The aforesaid conclusion was drawn because of the provisions of Rule 23 and Rule 15 of the Jammu and Kashmir Rules but in the case in hand, there is no provision, which has been brought to our notice, which enables the appointing authority to regularise a promotion from an anterior date, though the suitability test is held at a later date. In the absence of any such provision in the Rules in question, the ratio of the aforesaid decision, on interpretation of the relevant rules of the Jammu and Kashmir Engineering Rules will have no application. In the aforesaid premises, we have no hesitation in coming to the conclusion that merely because a suitability test had not been held at regular intervals an employee promoted on ad hoc basis can claim that it is a regular promotion after due process of selection. As such the seniority of promotees in the cadre of Senior Clerk can be counted only from the date of regular promotion, after due process of selection."

In State of W.B. & ors. vs. Aghore Nath Dey & ors. (1993) 3 SCC 371, this Court held:

"20. The Constitution bench having dealt with Narendra Chadha in this manner, to indicate the above principle, that decision can not be construed to apply to cases where the initial appointment was not according to rules.

We shall now deal with conclusions (A) and (B) of the Constitution bench in the Maharashtra Engineers' case quoted above.

There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed 'according to rules'. The corollary set out in conclusion (A), then is, that 'where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such posts cannot be taken into account for considering the seniority.' Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stop gap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.

This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) can not include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.

The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A).

In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the rules' and the later expression 'till the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases."

This Court in R.K. Mobisana Singh vs. Kh. Temba Singh & ors. [(2008) 1 SCC 747] following the principles laid down by this Court in Direct Recruit (supra) as also Swapan Kumar Pal (supra) held as under:

"39. Applying the principles of the aforementioned decisions to the facts of this case, we are of the opinion that although in terms of the office memorandum, no retrospective effect could be given to the order of regularisation passed in favour of the promotees, as in absence of any seniority rules operating in the field, the State was required to evolve a policy. It for its own reason did not do so.

The office memorandum of 1959 was applicable in the case of this nature. In some of the cases, promotion might have been given only in the exigency of situation without following the Rules, the period cannot be counted towards seniority

If they had been given regularisation with retrospective effect, the same by itself may not be a ground to apply the said order ipso facto for determining the inter se seniority. Seniority although is not a fundamental right but a civil right. Such a right of the direct recruits could not have been taken away without affording an opportunity of hearing to them.

It was obligatory on the part of the official respondents to take into consideration that the retrospective regularization could be granted only when there exists such a rule. If rules were not followed at the time of grant of promotion, question of grant of regularization with retrospective effect would not arise. Retrospective regularization whether in terms of the directions of the High Court or otherwise, thus, although could confer other service benefits to the officer concerned, but the same cannot be held to be of any assistance for reckoning seniority with retrospective effect."

In view of submission of the learned counsel for the parties, the Court proceeded to examine the submissions of the learned counsel for the petitioner as well as respondent-State. By letter dated 05.09.2005, the Personnel Department has communicated to the Deputy Commissioner that promotion from Class-IV post to Class-III post, letter no. 335 dated 16.09.1992 is applicable. The said letter has been brought on record by way of counter-affidavit. There is no mention that the procedure will be through the Bihar Public Service Commission, considering this letter Establishment Committee has applied his mind and came to the decision about promotion to the petitioner. In taking decision the entire procedure of this letter has been taken place. There is advertisement, limited examination and typing test thereafter, merit list was prepared. Pursuant to that Establishment Committee has recommended the case of the petitioner. There is no doubt that letter dated 07.12.2011 has been brought on record by way of counter-affidavit speaks that one letter no. 11243 dated 06.12.1995 is preferable for promotion from Class-IV post to Class-III post. This letter has been issued on 07.12.2011 whereas the petitioner has already been promoted on 21.05.2008. In that view of the matter at the time of promotion of the petitioner, letter dated 05.09.2005 was applicable which says that letter no. 335 dated 16.09.1992 will apply, letter dated 07.12.2011 has been issued later on meaning thereby this letter cannot be said to be retrospective. The appointment of the petitioner has taken place on 21.05.2008 at that time letter no. 335 dated 16.09.1992 was applicable. The Establishment Committee has applied this rule. Even at best it can be said that the case of the petitioner was not sent to the Bihar Public Service Commission does not refer that the petitioner's appointment is fit to be cancelled.

The Court has perused Annexure-E brought on record by way of counter-affidavit which suggests that the complaint filed by Manoj Kumar Jha is there.

Non-concurrence with the Public Service Commission, at the most would make the appointment irregular and not illegal, reference in this regard may be made to paragraph 29 of "Siraj Ahmad Vs. State of Uttar Pradesh & Anr" Civil Appeal No. 9412 of 2019 (Arising out of SLP(C) No. 30061 of 2017 wherein the Hon'ble Supreme Court has held as under:-

"29. As already discussed, the non-concurrence with the U.P. Public Service Commission, at the most would make the appointment of the appellant irregular and not illegal. We are therefore of the considered view that the High Court erred in dismissing the petition of the appellant. The appeal deserves to succeed on more than one ground."

However, in the present case letter no. 335 dated 16.09.1992 was applicable. At that time it was not required to send letter to the Public Service Commission. The petitioner has already worked for more than 11 years thereafter this in the light of judgment rendered in "Kusheswar Nath Pandey Vs. State of Bihar & Ors." reported in Manu/SC/0837/2013, in which the Hon'ble Supreme Court has held as under:

"9. Mr. Jain, learned Additional Solicitor General appearing for the Accountant General drew our attention to another judgment of this Court in Chandi Prasad Uniyal and Ors. V. State of Uttrakhand and Ors, reported in Manu/SC/0656/2012: (2012) 8 SCC 417 and particularly paragraph 14 thereof which states that there could be situations where both the payer and payee could be at fault and where mistake is mutual then in that case such amounts could be recovered."

In view of the said judgment, it can be said that it is not misrepresentation on the part of the petitioner. Admittedly, on complaint of one Manoj Kumar Jha, who has not been selected by the Establishment Committee and has filed W.P. (S) No. 2004 of 2013 contained in annexure-13 to the rejoinder to the counter-affidavit, which was dismissed for default and the said action has been taken against the petitioner. Thus the action on the complaint of Manoj Kumar Jha is not sustainable in the eye of law in view of the fact that the writ petition filed by one Manoj Kumar Jha has been dismissed by the High Court,. The judgment relied by the learned counsel for the petitioner in "Sitaram Thakur" (supra) is not applicable in the facts and circumstances of the present case. In that case the petitioner was terminated who was working on daily wage and the Hon'ble Supreme Court came to a conclusion that there is no requirement for the principle of natural justice. In this case petitioner's case was considered by the Establishment Committee and petitioner has already worked on the promoted post for more than 11 years. and in that view of the matter, only it has not been done in this case. Para 64 of "Sitaram Thakur Vs. The State of Bihar and Others" reported in 1992 SCC Online Pat 347 is quoted here-in-below:

"64. There cannot be any doubt that in absence of stature or statutory rules, the State may formulate scheme and/or adopt policy decisions for regularization of its adhoc employees if they had continued for a number of years subject to the criteria laid down therefor and reservation policy of the State."

In that view of the matter in the present case only two letters have been brought on record. The judgment relied on by the learned counsel for the respondent-State in "Union of India Vs. Dharam Pal FTC" (supra) relates to seniority between the parties. The Hon'ble Supreme Court in the case of "Direct Recruit Class-II Engineering Officers Assn. Vs. State of Maharashtra" reported in (1990) 2 SCC 715. In paragraph 47 of the said Judgment, the Hon'ble Supreme Court .came to the conclusion which reads as under:

To sum up, we hold that:

(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.

(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.

(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.

(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.

(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.

(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.

(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.

(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.

With respect to Writ Petition No. 1327 of 1982, we further hold:

(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final."

In view of the "Direct Recruit Class-II Engineering Officers Assn" (supra) the case of the petitioner comes under clause (B) of para 47 of the said judgment and the Court comes to the to the conclusion that at the time of appointment/promotion, letter no. 335 dated 16.09.1992 was in force.

As a cumulative effect of the discussions made above, the writ petition is allowed and the impugned order dated 26.12.2019 is quashed. Pending, I.A., if any, stands disposed of.