Mahesh Kumar Sharma vs State Of Chhattisgarh

The petitioners have preferred the present writ petition praying for the following reliefs:-

“1] That, this Hon'ble Court may kindly be pleased to issue a writ/writs, order/orders, direction/directions quashing the impugned order dated 02.09.2010, passed by the Engineer-in-Chief and the respondents may kindly be directed to consider the case of the petitioners with regard to grant of seniority on the post of Assistant Engineer Degree Holder, Water Resources Department from the date of their initial appointment /promotion on the post of Assistant Engineer Degree Holder i.e. from 29.11.1995.

2] That, this Hon'ble Court may kindly be pleased to grant any other relief(s), which is deemed fit and proper in the aforesaid facts and circumstances of the case.”

Brief facts of the case are that the petitioners were initially appointed on the post of Sub Engineer and were promoted on the post of Assistant Engineer and were holding the substantive post of Assistant Engineer at the relevant point of time. Subsequently, the promotion orders of the petitioners were cancelled in pursuance of the order/guideline issued by the Hon’ble Supreme Court in this regard in the matter of Ramesh Chaudaha and others, as a result of which the petitioners were appointed and treated as adhoc Assistant Engineers vide order dated 29.11.1995 and subsequently the services of the petitioners were regularized on the post of Assistant Engineers degree holder vide order dated 29.06.2000 and their seniority was counted from the date of their regularization on the said post according to the circular dated 30.03.1981 issued by the erstwhile State of Madhya Pradesh in this regard, whereby the seniority of employee would be counted from the date of his/her confirmation/ regularization and the same would not be counted from the date of his/her promotion on the post of Assistant Engineers in case of adhoc appointment, against which the petitioners filed representation before the respondent authorities, but the same has been rejected on the ground that since the promotion of the petitioners on the post of Assistant Engineers were on adhoc basis and they were regularized vide dated 29.06.2000, therefore, according to the circular dated 30.03.1981 issued by the erstwhile State of Madhya Pradesh, the seniority of the petitioners would not be counted from the date of their promotion on the post of Assistant Engineers on adhoc basis i.e. from 29.11.1995 and the same will be counted from the date of confirmation/ regularization, against which the present writ petition has been filed.

Learned counsel for the petitioners submits that the action of the respondents is illegal, erroneous and contrary to law. The petitioners were promoted on the post of Assistant Engineers degree holder vide order dated 29.11.1995 and their services were regularized vide order dated 29.06.2000 and till the order of regularization, the petitioners continued in the post uninterruptedly, therefore, the period of officiating service will be counted. The representation of the petitioners has been rejected applying the circular dated 30.03.1981 issued by the erstwhile State of Madhya Pradesh, but the subsequent notification issued on 02.04.1998 has been ignored. The Engineer-in-Chief has grossly erred in rejecting the representation without considering the case of the petitioners in the light of judgments passed by the Hon'ble Supreme Court in case of Engineering Officers Association Vs State of Maharashtra, reported in 1990 (2) S.C.C. 715 and C.H. Narayana Rao Vs. Union of India & others, reported in 2010(10) S.C.C. 247. The Engineer-in-Chief has rejected the representation without application of mind and in fact the representation has been rejected without considering the grounds raised in the representation despite the fact that the petitioners were working on the post of Assistant Engineers on adhoc basis and admittedly they had worked till the order of regularization was passed, therefore their past services ought to have been counted for determining the seniority on the post of Assistant Engineers. Therefore impugned order is illegal, erroneous and contrary to law, therefore, it is liable to be set-aside.

Learned State counsel opposes the submission made by the petitioners’ counsel and submits that the petitioners were initially appointed as Sub Engineers (Civil) and were promoted on the post of Assistant Engineer. Subsequently, a petition was filed before the erstwhile M. P. State Administrative Tribunal bearing O.A. No.616/1993 regarding promotion on higher post, against which an S.L.P. was preferred before the Hon'ble Supreme Court, which was allowed and order of the Tribunal was set aside. Pursuant to order of the Hon'ble Supreme Court, the respondent authorities passed an order dated 11th March, 1997, by which the promotion of petitioners and others to the post of Assistant Engineer (Civil) vide order dated 29/11/1995 was declared as adhoc instead of officiating and the seniority and other benefits was not provided to them till the vacant post as per the sanctioned set up and due consideration by the Departmental Promotion Committee. He further submits that as per the direction of General Administration Department dated 30/11/1987, the ad-hoc appointee or ad-hoc promotee will not get benefit of any seniority, as such the petitioners’ representation has rightly been considered and rejected vide order dated 02/09/2010, as the petitioners were working prior to 29/06/2000 on the post of Assistant Engineer on ad-hoc basis and their services were regularized vide order dated 20/09/2000 and after due consideration and recommendation of Departmental Promotion Committee, the petitioners were promoted on the regular post of Assistant Engineer (Civil) and as such their seniority would be counted from 20.09.2000. Therefore, the writ petition may kindly be dismissed. Reliance has been placed on the judgment rendered by this Court dated 15.02.2017 in WPS No.748/2005 parties being Mahesh Giri vs The State of Madhya Pradesh and another and other connected matters.

Heard learned counsel for the parties and perused the material available on record.

It is clear from the impugned order dated 02-09-2010 that this order has been passed rejecting the claim of the petitioners for grant of seniority from the date of their appointment on the aforesaid post applying the memo/notification dated 30.03.1981 (Annexure-P/9), which says that officiating service of the ad hoc employee shall be counted from the date of his/her regularization and not from the date of appointment, but as per the petitioners, their seniority should be fixed as per amended notification dated 02.04.1998 (Annexure-P/7), as they were regularized after the incorporation of amended notification, the relevant part of which is as under:-

“(4) Seniority of Adhoc employees.-(a) A person appointed on adhoc basis shall not get any seniority till the regularisation of his services.

(b) If a person is appointed on adhoc basis by substantially following the procedure laid down by the Recruitment Rules and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service shall be counted for seniority.”

This Court in the matter of Mahesh Giri (supra) held in para 28 as under:-

“28. The petitioners have also rested their claim on the basis that there was an amendment in the M.P. Civil Services (General Condition of Service) Rule 1961 (Annexure D-3 filed along with the additional submission of the petitioner) vide notification dated 2.4.1998 and a rule of seniority of ad hoc employees was incorporated that if a person appointed on ad hoc basis by substantially following procedure laid down by the Recruitment Rules and the appointee continues in the post uninterruptedly till regularization of his service in accordance with the Rules, the period of officiating service shall be counted for seniority.

The aforesaid submission is liable to be rejected because the petitioners have been regularized under a special rule of Regularization promulgated in the year 1986 whereas, this amendment in the Rules, as stated herein above, was made in the year 1998 i.e. long after petitioner's regularization and grant of seniority under the special rule of regularization. An ad hoc appointee who is regularized under the Regularization Rules of 1986 will be governed by rule of seniority as laid down in the Rule 12 thereof, it being a special provision, excluding operation of rule of general application, as included by way of amendment under the general conditions of service rules in the year 1998. The amended Rule of 1998 will apply only in cases where regularization takes place after the promulgation of the said rules and where it is found that the ad hoc appointment was made by substantially following the procedure laid down under the recruitment rules. The claim of seniority by application of the said rule is not based on any foundational facts. Lastly, the petitioners have sought relief on the basis that in the Panchayat Department, one employee V.K. Jain was granted seniority from initial date of ad hoc appointment, by conjoint application of Rule 7 and Rule 12 of the Regularization Rules 1986. This Court having held hereinabove above, that rule did not permit grant of seniority prior to date of regularization, any illegal order of regularization by the Government would not justify claim of the petitioners, as negative equality, contrary to law, cannot be enforced.”

In the case in hand, the petitioners were initially appointed as Sub Engineer and were promoted on the post of Assistant Engineer vide order dated 29.11.1995, but subsequently in pursuance of the judgment/guideline issued by the Hon’ble Supreme Court in the matter of Ramesh Chaudaha and others, petitioners’ promotion was cancelled on the aforesaid post and they were treated as adhoc Assistant Engineer and since then they were continuously working on the post of Assistant Engineer and subsequently vide order dated 29.06.2000, they were regularized on the post of Assistant Engineer Degree Holder, but their seniority was counted from the date of regularization instead of their appointment on the aforesaid post as per the notification dated 30.03.1981 (Annexure-P/9).

Perusal of the notification dated 02.04.1998 makes it clear that if a person is appointed on adhoc basis by substantially following the procedure laid down by the Recruitment Rules and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service shall be counted for seniority.” in the present case also, the petitioners were appointed/treated as adhoc Assistant Engineer in the year 1995 itself and they were continuously working on the aforesaid post and subsequently they were regularized in the year 2000, as such their seniority should have been counted from the date of their appointment on the post as per the amended notification dated 02.04.1998, but their seniority has wrongly been fixed by applying the earlier notification dated 30.03.1981.

It is a settled principle of law as laid down by the Hon’ble Apex Court that once an incumbent is appointed on a post according to Rules and he continues on the post without any break in service, his seniority has to be counted from the date of his appointment and not from the date of his confirmation.

In view of the foregoing discussions and keeping in view the impugned order, it is clear that that the respondents have not passed the said order in accordance with the amended notification dated 02.04.1998, as such the impugned order dated 02.09.2010 is liable to be and is hereby set aside. The respondents are directed to consider the seniority of the petitioners according to notification dated 02.04.1998 and accordingly fix the same and pass a fresh order/seniority list in this regard.

The writ petition stands allowed.