Dr. Madan Mohan Joshi vs State of Utarakhand and Others

This case is being decided afresh in compliance of order dated 13th May 2008, passed by the apex court in Civil Appeal No. 3540 of 2008, by which the matter is remitted back to this Court.

By means of this writ petition, the Petitioner has sought writ in the nature of mandamus commanding the Respondent No. 1 to record the Petitioner''s name between Serial No. 101 and 102 in the final seniority list, circulated on 03-09-2003, giving him benefit of his initial appointment.

Heard learned Counsel for the parties and perused the affidavits, counter affidavits and rejoinder affidavits, filed on their behalf.

Brief facts of the case giving rise to this petition, as stated in the writ petition, are that the Petitioner- Dr. Madan Mohan Joshi was initially given an ad-hoc appointment as Lecturer (in Botany). Before establishment of Kumaon University, Degree Colleges and Post Graduate Colleges in Kumaon Division were affiliated with Agra University. One of such Colleges was at Almora, known as Government Post Graduate College, Almora. Earlier, said College retained status of Government Post Graduate College, but later, the administrative and financial control of the College was transferred to Kumaon University. However, during transitional period, Vice Chancellor of the University had powers to make ad-hoc appointments on the post of Lecturers. On 16-08-1977, all Teachers and employees of aforesaid College were treated on deputation with Kumaon University, till there transfers are made by Director Higher Education, Uttar Pradesh, to some other place. The Petitioner continued to serve in aforesaid College till 31-07-1980 on deputation with the University. Whereafter, he was transferred to Government Post Graduate College, Augustmuni, District Chamoli (Now Augustmuni is part of District Rudraprayag). Meanwhile, U.P. Regularization of Ad-hoc Appointments (On Posts within the purview of Public Service Commission) Rules, 1979, were notified. Vide order dated 22-05-1980, Director Higher Education, U.P. regularized 355 ad-hoc Lecturers, appointed before 01-01-1977, and their names were arranged in order on the basis of their initial appointments. Ms. Savita Dhondiyal (Respondent No. 4) was also regularized by said order and her name figured at Serial No. 271. All the persons from Serial No. 271 to Serial No. 355 were junior to the Petitioner. A representation was made by the Petitioner to Respondent No. 3, claiming his regularization, on which letter dated 01 -07-1980 (copy annexure 7 to the writ petition) was sent by the Registrar of Kumaon University to the Director Higher Education and vide order dated 11-07-1980 (copy annexure 8 to the writ petition), the Petitioner''s services were regularized under the aforesaid Rules. It is pleaded by the Petitioner that there was no fault on the part of the Petitioner in his delayed regularization, and he made a representation dated 10-10-1980 (copy annexure 9 to the writ petition) to Respondent No. 3 to give him seniority on the basis of his initial appointment. However, the Petitioner did not receive any response to the representation made by him, relating to his seniority, but he got confirmed vide order dated 09-06-1988 (copy annexure 10 to the writ petition), and thereafter, a selection grade of pay was given to him vide order dated 22-12-1993 (copy annexure 11 to the writ petition). After the State of Uttarakhand was carved out from the State of Uttar Pradesh, a fresh representation is said to have been made by the Petitioner to Director Higher Education, Uttarakhand, praying fixation of his seniority. On 29-10-2002, a tentative seniority list was circulated and objections were invited within a month. The Petitioner''s name figured in said list at Serial No. 137, while that of Dr. Savita (Mohan) Dhondiyal (initial appointee of 17-10-1975) figured at Serial No. 103. In response to said list, Petitioner filed his objection dated 02-11-2002 (copy annexure 14 to the writ petition). A final seniority list was issued vide memorandum dated 03-09-2003, in which it was mentioned that all the objections were considered, it is alleged by the Petitioner that his objection appears to have not been considered before the final seniority list was prepared, as Petitioner''s name in the final seniority list figured only one up i.e. at Serial No. 136 and that of Dr. Savita (Mohan) Dhondiyal remained at her position i.e. Serial No. 102. Hence, this petition, challenging the seniority list dated 03-09-2003 with the prayer that the Petitioner''s name be recorded between Serial No. 101 and 102 of the list.

A counter affidavit was filed on behalf of Respondent No. 2 i.e. Director, Higher Education, Uttarakhand, in which it has been stated that the impugned seniority list has been prepared in accordance with Uttarakhand Higher Education (Group-A) Service Rules, 2003. It is further stated in the counter affidavit, filed on behalf of the Respondent No. 2, that as per Rule 20 of aforesaid Rules of 2003, the Petitioner''s seniority is fixed keeping in mind his substantive appointment/regularization. As far as the Petitioner''s initial appointment and confirmation, and the date of appointment of Savita (Mohan) Dhondiyal are concerned, the same are not disputed.

Earlier, this Court vide its judgment and order dated 21-3-2006, allowed the writ petition and directed the Respondents to re-fix the seniority of the Petitioner. The said order was challenged by the State of Uttarakhand and Director Higher Education, Uttarakhand, before the apex court by filing SLP (C) No. 12124 of 2006. Vide order dated 13-05-2008 (passed in Civil Appeal No. 3540 of 2008), the apex court set aside the order dated 21-03-2006, passed by this Court, and remitted the matter for fresh decision, after impleadment of Savita (Mohan) Dhondiyal and others. Consequently, the Petitioner impleaded Respondent No. 4-Dr. Savita (Mohan) Dhondiyal and other Respondents No. 5 to 37. Notices were sent to the newly impleaded Respondents.

Only Respondent No. 35-Dr. Harendra Singh Rawat filed his counter affidavit to the writ petition, in which it has been stated that the Petitioner was appointed on 20th September 1975, in a constituent College (at Almora) of Kumaon University, which was not a Government Institution on said date. It is further stated by the Respondent No. 35 that the Vice Chancellor had no authority to appoint a person in a Government Institution, as such those who were regularized (including Respondent No. 35) vide order dated 22-05-1980, under UP. Regularization of Ad-hoc Appointments (On Posts within the Purview of Public Service Commission) Rules, 1979, cannot be treated junior to the Petitioner, whose services were regularized sub-sequently vide order dated 11 -07-1980 under the aforesaid Rules. It is also stated in the counter affidavit, filed by Respondent No. 35, that under Rule 7 of the aforesaid Rules of 1979, the seniority was to be fixed on the basis of the appointment made under the Rules and there was a condition in the order of regularization that the candidate would not claim seniority vis-a-vis those already regularized. It is also pleaded by the answering Respondent that the seniority is being challenged after 25 years of regularization by the Petitioner and the petition suffers from laches.

In the rejoinder affidavits, filed on behalf of the Petitioner, the averments made in the writ petition are reiterated and explained.

Before further discussions, we think it just and proper to quote the relevant provisions of Rules applicable to the case:

(i) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall in all cases, be placed below the persons appointed in accordance with the relevant service rules, or as the case may be, the regular prescribed procedure prior to the appointment of such persons under these rules.

(ii) If two or more persons are appointed together, their seniority inter-se shall be determined in order mentioned in the order of appointment.

It is pertinent to mention here that admittedly the Petitioner was initially appointed on ad-hoc basis and got regularized in service under Rule 4 of Rules of 1979. Rule 20 of Uttaranchal Higher Education (Group ''A'') Service Rules, 2003, is relied by the Respondents to defend the impugned seniority list, reads as under:

Seniority:

(1) Except as hereinafter provided, the seniority of persons in any category of posts shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together by the order in that case it will mean the date of issue of the order:

Providedthat-

(a) if the appointment order specifies a particular back date with effect from which a person is appointed, substantively, that date will be deemed to be the date of order of substantive appointment and in other cases it will mean the date of issue of the order;

(b) if more than one orders of appointment are issued in respect of any one selection, the seniority shall be as mentioned in the combined order of appointment issued under Sub-rule (2) of Rule 17.

(2) The seniority inter-se of persons appointed directly on the result of any one selection shall be the same as determined by the Commission:

Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when the post is offered to him. The decision of the Appointing Authority as to the validity of reasons shall be final.

(3) The seniority inter-se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted.

Whether the seniority is determined under Rule 7 of the Rules of 1979, or the Rule 20 of the Rules of 2003, quoted above, in both the cases from the aforesaid rules, it is evident that the Petitioner is entitled to seniority from the date of his regularization i.e. the substantive appointment. There is no doubt that a substantive appointment of an ad-hoc employee takes effect from the date of his regularization in service under the Rules (unless some other date is specifically mentioned in such regularization order). It is not a disputed fact that the Petitioner got regularized in service under the Rules of 1979, vide order dated 11-07-1980 (copy of which is annexure 8 to the writ petition). It is also not disputed that regularization of the Respondents No. 4 to 37 were made on 22-05-1980 (i.e. more than one month before the regularization of the Petitioner) under the same Rules of 1979. This Court feels it necessary to mention the last Para of the order dated 11-07-1980, whereby the Petitioner''s services were regularized. Said Para reads as under:

? ? ? | ? ? ? ? ? | (Seniority of these Lecturers would be as serially mentioned in the schedule. And these Lecturers would be junior to those Lecturers, who were earlier regularized, before their regularization).

At Serial No. 2 of the schedule of order dated 11-07-1980, name of the Petitioner-Dr. Madan Mohan Joshi is mentioned as Lecturer in Botany. This schedule does not contain names of the Respondents No. 4 to 37 (who were earlier regularized vide order dated 22-05-1980). The condition quoted above from the regularization order itself makes it clear that the Petitioner is not entitled to the seniority over and above those who were regularized before his regularization.

Sri Manoj Tiwari, learned Counsel for the Petitioner argued that the Petitioner''s initial appointment (ad-hoc) was made vide order dated 20-09-1975 (copy annexure 1 to the writ petition), and his regularization got delayed under Rule 4 of Rules of 1979, due to the nonavailability of Annual Confidential Remarks/Service Record from the University. In this connection, it is further contended that there was no fault on the part of the Petitioner, as such merely for the reason that his record was made available sub-sequently to that of the Respondents No. 4 to 37, he cannot be made junior to them. We have gone through the record of the case and considered the submission, advanced on behalf of learned Counsel for the Petitioner. We are of the view that it is not a case where the Petitioner was appointed on ad-hoc basis in a Government College, like other Lecturers (Respondent No. 4 to 37) by the Director Higher Education, Uttar Pradesh. His initial ad-hoc appointment itself is made by Vice Chancellor of Kumaon University in its constituent College at Almora. No doubt the said College at Almora was a Government Post Graduate College, before Kumaon University is established under U.P. State Universities Act, 1973. Had the Petitioner''s ad-hoc appointment been made by Director, Higher Education, when said College was the Government College it could have been said that for no fault of the Petitioner, he has been made junior to his other colleagues of the same College or other similar Colleges. But, here admittedly Petitioner''s ad-hoc appointment was made by the Vice Chancellor, during the transitional period, under different provision of law. Apart from this, as discussed above, the conditions mentioned in the regularization order relating to Petitioner, by which he is appointed substantively, itself clearly shows that he cannot claim seniority over the persons regularized earlier.

Learned Counsel for the Petitioner further contended that the aforesaid condition in the regularization order, whereby it is mentioned that the Petitioner would not be entitled to claim seniority over the persons regularized earlier to him, was challenged by the Petitioner in his representation made to the authorities concerned. It is further contended that said condition was not a special one for the Petitioner, as it was also mentioned in the regularization orders of the Respondents No. 4 to 37. The contention made on behalf of the Petitioner is of no help to him for the reason that the condition mentioned in the regularization orders of the Petitioner and Respondents No. 4 to 37 is in consonance of Rule 7 of Rules of 1979, quoted above, and the condition mentioned in the order of Respondents No. 4 to 37 bars them from claiming seniority over persons regularized prior to 22-05-1980 but not against sub-sequently regularized Lecturers.

For the reasons as discussed above, we do not find any merit in this writ petition, which is liable to be dismissed. The same is dismissed.