Gangadharan Nair vs State of Arunchal Pradesh and Others

I.A. Ansari, J.—By this common judgment and order, I propose to dispose of the present batch of writ petitions.

The petitioners, in the present writ applications, were initially appointed as LDCs on ad hoc by the respondent No. 3, namely, Deputy Commissioner, Lohit District, Tezu, the petitioner in WP (C) No. 405 (AP) 2002, namely Shri Gangadhar Nair having been appointed vide order, dated 11.3.1985, the petitioner in WP(C) No. 401 (AP) 2002, namely Shri Prasanna Kumar G having been appointed vide order, dated 28th June, 1984, with effect from 2.7.1984, the petitioner in WP (C) No. 398(AP) 2002, namely Smti Prasanna Kumari CR having been appointed vide order, dated 27.9.1984 with effect from 1.10.1984, the petitioner in petitioner in WP (C) No. 399(AP) 2002, namely. Shri Sambhu Kumar Tamang having been appointed vide order dated 7.8.1985, the petitioner in WP (C) No. 400 (AP) 2002, namely, Shri Mahendra Gogoi having been appointed vide order, dated 26.11.1984, the petitioner in WP (C) No. 401 (AP) 2002, namely, Shri S.K. Pillai having been appointed vide order, dated 26.11.1984, and the petitioner in WP (C) No. 403 (AP) 2002, namely, Miss Rup Jyoti Sharma having been appointed vide order, dated 29.10.1985, the above appointment orders having been annexed as Annexure A to the respective writ petitions. The petitioners made several representations seeking regularization of their services as LDCs. When the petitioners representations were so pending for consideration, the Seniority Lists (Annexures E & F to the writ petitions) were published on 25.6.1991 and 5.2.1996 respectively. In the Seniority Lists so published, the petitioners were shown as junior to the private respondents No. 4 to 12, though private respondents had joined their services as LDCs after the initial appointments of the petitioners. As a result of several representations made by the petitioners, as hereinbefore indicated, the services of the petitioners were regularised with effect from their initial date of appointments. This reflected from the order, dated 11.12.1987 (Annexure D to WP(C) No. 401(AP) 2002 - Shri S.K. Pillai) and order, dated 4.3.2001 (Annexure G to the remaining writ petitions) passed by the respondent No. 3 namely, Deputy commissioner, Lohit District. However, though the petitioners'' services stood regularized, their seniority positions were not changed in the relevant gradation lists. Moreover, before the petitioners'' could be so regularized, private respondent Nos. 4 to 12 has already been promoted to the posts of UDC in the said establishment. Aggrieved by the denial of promotion and granting of appropriate seniority in the gradation list, the petitioners have approached this Court with the present applications made under Article 226 of the Constitution of India seeking issuance of writ/s commanding the respondent to promote the petitioners to the posts of UDC with effect from the date on which their junior, namely, respondents No. 4 to 12 stood promoted to the posts of UDC.

The private respondents have not filed any affidavit and not contested this case. The official respondents have also not contested this case by filling their affidavit.

I have perused the materials on record. I have heard Mr. J. Hussain, learned counsel for the petitions, and Mr. B.L. Singh, learned Sr. Govt. Advocate, appearing on behalf of the respondent Nos. 1, 2 and 3.

Before entering into the merit of the present writ petition, it is imperative to note that none of the respondents have filed any affidavit disputing or denying the correctness of truthful of the averments made by the petitioners in the present writ petition. In such a situation, this Court has no option, but to proceed on the premises that the averments made by the petitioners in their respective writ petitions are true and correct.

What transpires from the writ petitions are that the petitioners were, initially, appointed as LDC on adhoc basis. These appointments are not claimed to have been made following any recruitment rules. Thus, these appointments were, admittedly, de-hors the relevant recruitment rules. The petitioners made several representations seeking regularization of their services with effect from the respective dates of their initial appointment as LDC. Eventually, the petitioners'' services were so regularized, as had been sought for by them. Though the petitioner''s services were so regularized their seniority positions in the gradation list were not altered and they remained junior to the private respondents Nos. 4 to 12 though these respondents, admittedly, joined the said establishment as LDCs after the date on which the services of the petitioners were regularized as aforesaid. However, what is of utmost importance to note is that the said gradation lists, in question (i.e., Annexures E & F) were published on 25.6.1991 and 5.2.1996 respectively. There is nothing in the writ petitions to show that the appointments of the respondents No. 4 to 12 were initially on ad hoc basis or de-hors the relevant recruitment rules as had been the cases of the petitioners. In fact, from the gradation lists, it appears that the appointments of the private respondents as LDCs were regular appointments. This shows that before the services of the petitioners were regularized, private respondents were already regularly employed persons of the said establishment.

Situated thus, it is clear that the private respondents cannot be allowed to be superseded by and/or made junior to, the writ petitioners, when the private respondents were regularly recruited persons even before the services of the writ petitioners were regularized. Reference may be made, in this regard, to Ananda Ram Borah and Others Vs. State and Assam and Others, , wherein a Division Bench of this Court held thus ;

"The appellants having not been appointed in accordance with the Rules cannot claim seniority over the persons who have been regularly recruited in accordance with the services Rules." (emphasis is supplied)

Coupled with the above, it is also of immense importance to note that the petitioners have not mentioned in their writ petitions the dates on which the respondents 4 to 12 received their promotion to the posts of UDCs. Thus, the present batch of writ petitions suffer from suppression of materials facts.

Situated thus, it will not be just and fair if this Court, in the face of such vague pleadings in the writ petitions, interfere with the promotions already granted to the private respondents. This apart, the petitioners services were not initially regular as indicated hereinabove. For the omission of the official respondents to regularize petitioners'' services, the petitioners never approached this Court. The petitioners have approached this Court only after their services stood regularized. Thus, the petitioners'' applications for granting of seniority over respondents No. 4 to 12 are inordinately delayed and in view of the fact that the petitioners could not show as to when the private respondents were promoted, it will be unfair and unjust to unsettle the settled positions, which the private respondents are enjoying. Viewed from this angle, the promotions granted to the private respondents cannot be interfered with. A relief under Article 226 is an equitable relief and delay defeats equity. However, in view of the fact that the official respondents have regularized the services of the petitioners as LDCs, the petitioners deserve to be promoted to the posts UDC as and when such posts become available in the said establishment for accommodating the petitioners as UDCs in order of their seniority position, in the said establishment without adversely affecting the promotions of the private respondents.

Considering, therefore, the matter in its entirely and in the interest of justice, the official respondents, namely, respondent Nos. 1, 2 and 3 are hereby directed that if the post/posts of UDC in the said establishment is/are vacant or fall/falls vacant in future and the official respondents decide to fill up the same, the petitioners'' case shall be considered, first, for promotion against such vacancies in order of their respectively seniority without adversely affecting the promotions of the private respondents.

With the above observations and directions, these writ petitions shall stand disposed of.

No order as to costs.