Nabin Ch. Bardoloi and Others vs State of Assam and Others

P.G. Agarwal, J.—All these writ petitions were heard together on the prayer of the counsel for the writ Petitioners and Respondents as common question of law and fact are involved. These cases are disposed of by this common judgment.

Heard Sri A.M. Mazumdar, learned Senior Advocate, Shri K.H. Choudhury, learned Senior Advocate, Sri H.R.A. Choudhury, and Shri H. Mahanta, learned Government Advocates.

The case of the writ Petitioner Nabin Chandra Bordoloi in CR 336/1998 hereinafter refereed as P-1 is that he was appointed in the cadre of Assam Education Service Class-Ion 5.5.1982 under Rule 3(F) of Assam Public Service Commission Regulation 1951 in short the Regulations. The service of the Petitioner was regularised by notification dated 20.12.1989 giving retrospective effect from 16.1.87. The Respondent No. 3 to 13 were appointed by the State of Assam in the Assam Education Services, Class-I on the recommendation of the Assam Public Service Commission vide order dated 13.7.1988. According to the Petitioner he is senior in service to the Respondents but the Respondents were promoted and he was placed below the Respondent in the gradation list. The prayer of P-1 is that his seniority should be fixed from the date of his joining the service on 22.5.84 and the subsequent gradation list should be quashed and the Petitioner should be placed above the Respondents.

The case of the writ Petitioner Suraj Ali Laskar in CR 337/98, hereinafter referred as P-2, is that he was appointed as a District Elementary Education Officer under Rule 3(f) of the regulations on 22.12.84. Prior to that the Petitioner was working as Social Education Organiser, Sub-Inspector of Schools and District Adult Education Officer. The services of the Petitioner were regularised by notification dated 3.1.1992 with retrospective effect from 16.1.87. The prayer of Petitioner P-2 is also identical to P-1.

The case of the writ Petitioner Hemanta Kr. Sarma and Md. Mohsin Ali, hereinafter referred as P-3 is that as pursuant to Advertisement issued by Assam Public Service Commission, the Petitioners participated in the selection process alongwith Ors. including P-1 and P-2. The Assam Public Service Commission recommended and submitted the Merit List of 64 names and thereafter vide order dated 13.7.1988, P-3 were appointed. The other selected candidates were appointed vide different notifications. The further case of P-3 is that both P-1 and P-2 were not found suitable by the Assam Public Service Commission and their names were not recommended by the selection panel and this fact was not disclosed in the writ petition of the Petitioner P-1 and P-2. It is further stated that as a matter of fact P-1, P-2 and some Ors. were never recommended by Assam Public Service Commission as required under rules and they were appointed by virtue of Cabinet decision and in relaxation of the rules. There is no dispute at the bar that the writ Petitioners and the private Respondents all belong to the Assam Education service Class-I and as per the rules, the appointment has to be made on the recommendation of the Assam Public Service Commission only.

Sri Choudhury appearing for P-3 submits that neither in the Cabinet Memorandum nor in the Cabinet decision it was provided that P-1 and P-2 services has to be regularised with retrospective effect i.e. 16.1.87. The P-3 all along enjoyed seniority over P-1 and P-2 and they were promoted earlier. The gradation list published in 1989, the name of P-1 and P-2 were not mentioned and they were not borne in the services at that time. In the subsequent gradation list also, the name of P-1 and P-2 appeared below P-3 and it was only in 1998 that P-3 came to know that P-1 and P-2''s services have been regularised with retrospective effect. The prayer of P-3 is for quashing the order giving retrospective effect of regularisation from 1987. To be fair enough P-3 has not challenged the regularisation of P-1 and P-2. P-1 and P-2 have also not filed any affidavit-in-reply disputing or challenging the above statements of P-3.

Admittedly P-1 and P-2 were appointed under Regulation 3(f), the question that comes or for determination is what is the right of such appointees. The question was considered by this Court in the case of Hemanta Kumar Sarma v. State of Assam in Civil Rule No. 644 of 1995 and Civil Rule No. 210 of 1995 disposed of on 15.11.1995 and it was held that:

By now the law has crystalised that an appointee either under Regulation 3(f) or a promotee on adhoc basis does not acquire any right to claim seniority over the regular appointees.

The law has been crystalised by Division Bench of this Court reported in 1995 (1) GLR 229 (Pranjit Kumar Das, Appellant/Petitioner v. State of Assam and Ors. Respondents) wherein it has been stated that an appointment under Regulation 3(f) of the Regulation, 1951 do not give any right to a person and there is no question of their appointment being regularised from a back date, as that will amount to discrimination.

We may look into the Rule 23 of the Assam Education Service Rules which reads as follows:

Seniority, (1) Inter-se seniority of the members of the service belonging to each of the cadres shall be in the order in which their names appear in the select list prepared under Rule 6(d) of the list prepared under Rule 12(5) as the case may be, provided he joins his appointment within 15 days from the date of receipt of the order or within the extended period:

Provided that if a member is prevented from joining within this period by the circumstances of public nature or for reasons beyond his control the appointing authority may extend it for a further period of 15 days. If the period is not so extended the seniority shall be determined according to the date of joining.

The Respondents specifically stated that the inter-se seniority should be fixed as per the above quoted rule and the Appellant-Petitioner is not entitled to the benefits of the period of services put in by him on being appointed under Regulation 3(f) of the Regulations. Learned Counsel for the Appellant, on the other hand, places reliance on the Note provided in Sub-rule (5) of Rule 23. Sub-rule (5) reads as follows:

(5) If the confirmation of a member of the service in a cadre is delayed on account of his failure to qualify for such confirmation he shall loose his position in order of seniority in that case vis-a-vis such of his juniors as may be confirmed in that particular cadre.

His seniority shall, however, be restored on his confirmation subsequently.

Note. (a) The period of appointment under APSC (Limitation of Function) Regulation before regulation through commission shall always be ignored for the purpose of determining seniority.

Sri A.M. Majumdar, Senior advocate, however, submitted that P-1 and P-2 were appointed as per the Rules and subsequently their services were regularised and as such the benefit of the period of service under 3(f) should be extended to them and they should be deemed to be in service since 1984 and thus senior to P-3. It is also sated that the date of retrospective regularisation needs no interference and in that case also they are senior to P-3. In support of his submissions, Sri Mazumdar has placed reliance on the decisions of the Apex Court in the case of Ajit Kr. Rath, Appellant v. State of Orissa AIR 2000 SC 85 and Rudra Kumar Sain and Others Vs. Union of India and Others, the Apex Court considered the meanings of the words "Adhoc", "Stop-Gap", fortuitous". The Apex Court observed:

The meaning to be assigned to these terms while interpreting provisions of a service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of appointment of the officer for appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as "ad hoc" or "stop-gap". If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as "Fortuitous" in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post of due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a "stop gap" arrangement and appointment in the post as "ad hoc" appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached with dealing with the questions of inter se seniority of officers in the cadre.

The Court further observed:

In service jurisprudence, a person who possess the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stop gap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be "fortuitous/ad hoc/stop gap" are wholly erroneous and therefore exclusion of those appointees to have their continuous length of service for seniority is erroneous.

In the present case, we find that the appointment was to be made through Public Service Commission only. Admittedly P-1 and P-2 were appointed under 3(f) of the regulations not on the recommendation of the APSC and this was a stop gap arrangement for three months or till the regular appointment was made by APSC. Hence, by no stretch of imagination, it can be said that the Petitioner was appointed in regular manner. Apparently, it was a stop gap arrangement only. The facts and the law laid down in Ajit Kr. Rath (supra) are not applicable as is in that case the promotions were made on regular basis as per rules. In the case of The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, the Apex Court laid down the following principles: A & B:

A. Once an incumbent is appointed to a post according to a rule his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only the 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.

B. If the initial appointment is not made by following the procedure laid down by the rules but the appointee continue in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.

In the present case, we find that P1 and P2 did participate in the selection process alongwith P3 although P3 were successful and appointed in the year 1988, P1 and P2 could not be appointed as their names were not recommended. Their services were however subsequently regularised by notification issued in the year 1989 and 1992. Sri K.H. Choudhury submits that the service of P1 was terminated to accommodate P3 Hemanta Sarma. As stated above, the regularisation of P1 and P2 is not under serious challenge before us but the question is whether the appointment could be given retrospective effect or not. In the year 1988 when P3 were appointed, P1 and P2 were not borne in the cadre and their services under 3(f) was outside the cadre and that cannot be considered or deemed to be service in the cadre. In case of State of Bihar and others Vs. Sri Akhouri Sachindra Nath and others, the Apex Court held that "No person could be promoted with retrospective effect from the date when he was not borne in the cadre so as to adversely affect Ors. .

This is not the case of fixation of inter se seniority between the promotees and Direct Recruits. The matter relates to inter se seniority between the direct recruits only. In the case of P.D. Aggarwal and Others Vs. State of U.P. and Others, relying in its earlier decision in the case of C.G. Desai, in Apex Court held that the period of service rendered by the Ad hoc employee before their services have been de-regularised in accordance with the Regularisation Rules, cannot be taken into account in recognising their seniority in service. There is Anr. way of looking at the things. P-1 and P-2 were not appointed on regular basis. They participated in file selection. process alongwith P-3 and failed to clear the hurdle or get nomination. Successful candidates were appointed in the year 1988. Services of the Petitioners were regularised beyond the Rules in the year 1989. Under such circumstances P-1 and P-2 cannot be allowed to sit over the head of P-3. It may amount to benefiting the less qualified.

Under the facts and circumstances of the case and in view of the law as quoted above, it is held that P-1 and P-2 are entitled to seniority from the date of regularisation/issuance of notification only and not from retrospective effect. The relevant clause of the notification giving retrospective effect from 16.1.87 stands quashed. P-3 shall remain senior to P-1 and P-2.

In the result, the writ petition 336 and 337 of 1998 stands dismissed. The writ petition No. 5342/1999 stands allowed to the extent as stated above.