Birendra Chandra Sarmah vs State of Assam and Another

D. Biswas, J.—The common questions involved in both the writ petitions is whether an appointee under Regulation 3(1) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 regularised subsequently is entitled to computation of seniority with effect from the date of initial appointment.

The petitioner Shri Birendra Chandra Sarmah in Civil Rule No. 2180 of 1994 submitted an application for appointment to the post of Project Manager in pursuance of an advertisement published inviting applications under Regulation 3(1) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 in the year 1984. The petitioner was called for interview and after selection was appointed as Project Manager under Regulation 3(f). The petitioner joined the post on 31.3.1985. On 26.8.1993 the Assam Public Service Commission, for short the Commission, published an advertisement for regular appointment and the petitioner applied and was interviewed. On selection, he was recommended by the Commission for appointment by letter dated 11.10.1993. The petitioner''s name appeared at serial No. 5 of the merit list. On 29.4.1994 the petitioner submitted a representation for determination of his seniority taking into account the period he had served under Regulation 3(f) since 1985. As recommended, his services was regularised with effect from 11.10.1998 on condition that his interse-seniority would be determined as per his position in the merit list. The petitioner''s case is that since he had joined the department In the year 1985 after selection and continuously served the Department without any interruption, he is entitled to computation of seniority from 31.3.1985 and not from a subsequent date.

The petitioner Ramani Kanta Dey of Civil Rule No.3517 of 1997 also stands on the same footing with the petitioner in Civil Rule No.2180 of 1994. Initially he was appointed as Project Manager under Regulation 3(f) after interview and selection, and he had joined the post on 25.2.1985. In the like manner he was ultimately recommended and regularised in service with effect from 11.10.1993. His grievance is that he is entitled to seniority with effect from the date of his appointment under Regulation 3(f) after interview and selection.

4.1 have heard the learned counsel for both the petitioners and also the learned state counsel.

It would be relevant to mention here that the State has not filed any affidavit in this case. However, an affidavit has been filed by Respondent No.3 Civil Rule No.2180 of 1994 challenging the appointment of the writ petitioner on the ground of qualification. That apart, it has been pleaded that since the writ petitioner was appointed under Regulation 3(1), he is entitled to seniority from the date of his regular appointment only.

It would appear from Rule 5 of the Assam Industries Services Rules, 1997 that the posts of Deputy Director, Functional Manager and Project Manager are equivalent posts and it provides for direct recruitment through the Commission. Rule 12 provides for promotion form one cadre to another on selection by a Committee. Rule 20 deals with the seniority. It reads as follows:

"20. Seniority:

(1) A seniority of a member in cadre, appointed by direct recruitment or by promotion shall be determined according to the order of merit in the respective select list if he join in the post within the 15 days form the date of receipt of the order or within the extended period as mentioned in rule 17.

(2) If a member fails to join in the post within initial 15 days of receipt of the order or within the extended period as mentioned in rule 17, but joins later, his seniority shall be determined in accordance with the date of joining.

(3) A member appointed to a cadre by promotion in a year shall be senior to a member appointed to that cadre by direct recruitment in that year."

The provisions in Rule 20 quoted above clearly lays down that seniority of a member appointed by direct recruitment shall be determined according to the order of merit provided he joins the post within 15 days from the date of receipt of the order or within the extended period as mentioned in Rule 17. The Rule does not provide that the period spent on appointment under Regulation 3(f) is to be reckoned for the purpose of seniority on regularisation. It, therefore, necessitates to refer to the provisions of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951. It reads as follows -

"3. It shall not be necessary for the commission to be consulted in matters relating to methods of recruitment to civil services and posts or the suitability of the candidates for such appointments, in the following cases, namely -

(a) .....

(b) .....

(c) .....

(d) .....

(e) .....

(f) when an appointment is to be made by direct recruitment to a temporary post created in a service if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay; provided that if the post has been sanctioned for, or is likely to last for more than four months, the Commission shall, as soon as possible, be consulted in all matters mentioned in sub-clause (3) of Article 320 of the Constitution.

(g) .....

(h) .....

(i) .....

(j) .....".

The aforesaid provision came up for consideration before a Division Bench of this Court in Dr. Anup Kumar Das v. Dr. Sanjib Kakati and ors. (2000) 2 GLR 479. The Division Bench held as follows:-

"7. In support of what is stated above, we may refer to some of the decisions of the Supreme Court. In the The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, the Supreme Court was of the view that 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 from the date of his confirmation. The Supreme Court further held 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. This view is also available in the Judgment of the Supreme Court in Union of India v. S.K. Sharma AIR 1092 SC 1188 in which case the ratio laid down in D.N. Agrawal and another Vs. State of Madhya Pradesh and others, was followed. In V. Sreenivasa Reddy and others Vs. Govt. of Andhara Pradesh and others, it was held that appointment/promotion must be made in accordance with rules and the direct recruit takes his seniority form the date on which he starts discharging the duty of the post borne in the Cadre. According to the Supreme Court, a temporary appointee appointed de-hors the rules on an adhoc basis or to a fortuitous vacancy gets seniority from the date of regular appointment. In Y.H. Pawar Vs. State of Karnataka and another, the Supreme Court was of the opinion that when appointment was made on ad-hoc basis without any competitive examination, such appointment although made prior to commencement of the recruitment rules are ad-hoc and not regular appointment and that on subsequent regularisation of the appointment sometime after the coming into force of the recruitment rules, the appointee is entitled to seniority not from the date of initial appointment but from the date of regularisation. In the State of U.P. and Others Vs. Dr. R.K. Tandon and Others, reiterating the same view the Supreme Court held that all ad-hoc appointment de-hors the rule do not confer any right to pension or seniority, they acquire the rights only from the date of their regular appointment according to the rule. If, however, the initial appointments are according to rules though on ad-hoc or temporary basis the seniority then would be counted form the date of initial appointment.

It is obvious from the above decision that when stop-gap or adhoc appointment is made de-hors the Rules, the appointee will not be entitled to seniority from the date of stop-gap or ad-hoc appointment. The position, however, would be different if the initial appointment on ad-hoc, temporary or stop-gap basis if made under any provisions of the Service/Recruitment Rules. In such case, if the appointee is allowed to continue for a longer period without any interruption and he is regularised in service, either on the recommendation of the Commission or in accordance with the provisions of the Rules, the appointee will be entitled to seniority from the date of initial appointment.

In the instant case both the writ petitioners have claimed that they were interviewed and selected for appointment under Regulation 3(f). Annexure-1 in Civil Rule No. 2180 of 1994 shows that the advertisement was issued for appointment to the post of Project Manager under Regulation 3(f) by the Directorate of Industries. The advertisement was not issued for and on behalf of the Commission. Annexure-2, the appointment letter dated 22nd February, 1985 shows that the petitioner along with others were appointed under Regulation 3(f). This letter nowhere indicates that the appointment is made in pursuance of the recommendation of the Commission or under any provision of the Rules. A copy of the appointment letter has been marked to the Secretary of the Commission with a request to advertise the post and forward the recommendation after completion of selection process. Therefore, the initial appointment of the writ petitioners was made by the department concerned in pursuance of the advertisement issued by the Director of Industries and not the Assam Public Service Commission. The advertisement issued by the Director of Industries for selection of candidates for appointment under Regulation 3(f) was beyond the provisions of the Rules. If any appointment is sought to be made under Regulation 3(f), the authority concerned may do so only for a period of four months only. The appointments under scrutiny being de-hors the Rules will not vest any right with the appointee to claim seniority from the date of ad-hoc appointment. The initial appointment of the petitioners for a period of four months under Regulation 3(f) is an appointment de-hors the rules and as such it is ad-hoc. Therefore, the appointees cannot claim seniority from the date of initial appointment. This position is well supported by various decisions of the Supreme Court discussed in Dr. Anup Kr. Das (supra). The petitioner would, therefore, be entitled to get seniority only with effect from the date of regular appointment on the recommendation of the Commission as per merit list and not from any date ante. In Rudra Kumar Sain and Others Vs. Union of India and Others, the Supreme Court had the occasion to deal with similar question in respect of appointment of an officer to the Delhi Higher Judicial Service. If we go by the ratio available therein, it would appear that the appointment of the writ petitioners in the instant case were ad-hoc in nature and not in accordance with the relevant Service Rules. That being so, the petitioners under no circumstances can be placed above the direct recruitees having better position on merit in the same set of recommendation.

The discussion above and the ratio available in paragraph 7 of the Division Bench Judgment of this Court referred to above indicate that the writ petitioners in both the writ petitions have no reasons to be aggrieved. They will be entitled to seniority from the date of their regular appointment as per their position in the merit list as recommended by the Commission and, this having been done, the writ petitions are liable to be dismissed.

In the result the writ petitions are dismissed. No order as to costs.