Md. Habibur Rahman Barbhuya vs State of Assam and Others

D. Biswas, J.—The petitioner was appointed as Assistant Jailor purely on temporary basis subject to termination without notice and he had joined the post on 19.3.1984. The appointment letter reads as follows:

"No. PRI.77/81/166 - Subject to termination without notice and without assigning any reasons therefor, the following person is appointed temporarily as Assistant Jailor in the scale of pay of Rs. 580-20-680-EB-25-805-EB-30-1165 P.M. plus, other allowances as admissible under the rules with effect from the date of his joining and posted to the Jail against his name :

In 1987, written and viva-voce tests were conducted for regularisation of services of the petitioner along with other candidates, A list of 17 candidates was published showing the petitioner at serial No. 14 along with fresh candidates. It was stated that petitioner''s seniority would be in the order of his placement in the select list. The petitioner''s grievance is that since he had joined service in 1984, he ought to have been shown at the top of the list. The services rendered by him from 19.3.1984 on him temporary appointment was not computed for the purpose of seniority. Being aggrieved, he submitted representation to the Inspector General of Prisons, Assam, but the same was turned down on the ground that his seniority had to be as per his position in the select list prepared as per provisions of the service rules. The combined gradation list published vide order dated 14.8.1996 place him at serial No. 39 instead of serial No. 14 and this was obviously done without taking into consideration the past services rendered by him. The petitioner submitted another representation and an appeal before the appellate authority, but the appeal was disposed of by the Government by an order dated 30.5.1998 rejecting the same. His further grievance is that the incumbents appointed on ad hoc basis and shown at serial Nos. 37 to 42 were regularised in service from the date of their joining the posts. The petitioner being similarly situated and appointed on ad hoc basis ought to have been given the benefit of seniority with effect from 19.3.1984, the date of joining and not from the date of his final selection,

Mr. A.M. Mazumdar, the learned senior counsel for the petitioner argued at length to augment the petitioner''s claim of seniority over direct appointees. But, from the averment made in the writ petition itself it transpires that the petitioner although appointed in 1984 purely on temporary basis had to appear before the selection board in written as well as viva-voce tests and he was thereafter selected for regular appointment being at serial No. 14 of the select list. This shows that his initial recruitment in the year 1984 was purely temporary and dehors the rules. The appointment letter quoted above indicates that the appointment was not in compliance with the provisions of the rules and, as such, in para-2 of the said letter it has been clearly stated that he will have to qualify in the nest competitive examination for recruitment of Assistant Jailor for regularisation of his appointment and determination of his seniority.

It appears that the State has not filed any affidavit-in-opposition. Even then in a case where a settled position is sought to be unsettled, the burden is on the petitioner to show that his initial appointment was as per provisions of the rules and his subsequent selection for regularisation was with effect from the date of his initial appointment. Besides, Annexure-3, the appointment order made on final selection clearly indicates that the petitioner was selected and appointed along with 16 other candidates and that their inter se seniority will be as per their position in the merit list also reflected in the appointment order. On this ground the Government also rejected the appeal filed by the writ petitioner by order dated 28.11.1997 (Annexure-9), Besides, this order of appointment/regularisation in case of petitioner issued in April, 1987 has been challenged only in 1998 i.e. after more than 10 years. Apart form merit, the petitioner does not seem to have a case because of delay displayed by him in approaching the Court. Had the initial appointment of the petitioner been in accordance with the provisions of the rules, the question would have, however, been altogether different. A person appointed de hors the rules without recommendation of the selection board cannot claim computation of his seniority for the past services rendered before actual selection and appointment. That apart, materials on record does not prove that any person similarly situated has been given the benefit of seniority from the date of his temporary appointment dehors the rules.

In the result, the writ petition is dismissed.