Santosh
Kumar & Ors Vs. G.R. Chawla & Ors [2003] Insc 442 (10 September 2003)
M.
B. Shah & Dr. Ar. Lakshmanan.
WITH Civil
Appeal Nos. 11964 of 1996 and 11965 of 1996 Dr. AR. LAKSHMANAN, J.
The
questions involved in these appeals are identical and they are being disposed
of by this common judgment.
These
appeals are directed against the common judgment dated 06.05.1994 passed by the
High Court of Judicature at Allahabad in Writ Petition Nos. 731 of 1991, 251 of
1994, 309 of 1994, 1897 of 1980 and 1663 of 1991.
The
facts, in short, are as follows:- According to the appellants, they were
eligible for appointment to the posts in question and the appointments were
made on the basis of selection made pursuant to the public advertisement and
after considering claims of all eligible candidates. In these circumstances, it
was submitted that the entire length of service of the appellants is entitled
to be considered for the purpose of seniority as held by the Constitution Bench
of this Court in the case of Direct Recruit Class II Engineering Officers'
Association s vs. State of Maharashtra and Others (1990) 2 SCC 715. However,
the High Court held that ad hoc services cannot be counted for the purpose of
seniority. It was further submitted that if the ad hoc appointment is made
after satisfying all tests for regular appointment and after considering the
claims of all eligible candidates, these appointments must be treated as
substantive appointments for the purpose of seniority and that the High Court
fell in error in excluding such period from seniority.
The
High Court pronounced the impugned judgment whereby it was held that the
appellants/writ petitioners who are ad hoc appointees are not entitled to claim
seniority on the basis of continuous officiation. It was also held that the
direct recruit appointees/respondents were, in fact, appointed on 16.09.1982
and the corrections were made in their appointment letters mala fide. The High
Court also disbelieved the affidavit filed on behalf of the State Government
and the Director of Medical Services. Accordingly, the High Court quashed the
seniority list and directed preparation of fresh seniority list in accordance
with the guidelines mentioned therein.
In
most of the writ petitions, dispute of inter se seniority has been raised.
While raising dispute of seniority, the selection made by the Pubilc Service
Commission (hereinafter referred to as "the PSC") was also
challenged. In one or two of the writ petitions, recommendations of the PSC
were accepted by the State Government. In the light of the facts and
circumstances, the High Court held as follows:- "We hold that the inter se
seniority of all the Inspectors of Drugs, whether promotees or direct selected
by the Public Service Commission deserved to be determined in accordance with
the merit prepared by the Public Service Commission. As far as those Drugs
Inspectors who either did not appear before Public Service Commission or
appeared but failed to be selected and whose services where regularised by the
State Government would be placed below the persons selected by Public Service
Commission in accordance with the Rule-7 of the Regularisation Rules.
In
view of what has been indicated herein above writ petitions bearing No. 731/91
G R Chawls & Ors V/s State of U.P. & Ors and No. 251 [SB]/1994 A K Pandey
and others V/s State of U.P. & others partly succeeds. A
writ in the nature of Certiorari quashing the order dated 12-1-1991 passed by Director General, Medical Health and
Family Welfare, Govt. of U.P. determining the seniority of Inspectors of Drugs,
is issued. Opposite parties are directed to re- determine the seniority of
Inspectors of Drugs in the light of the observations mentioned in this order.
Writ Petitions bearing Nos. 1897/80, 1663/91 and 309 [SB]/1994 are dismissed."
Dis-satisfied with the above judgment, the writ petitioners have come up on
appeal to this Court and contended that the High Court has completely ignored
the pleadings of the appellants/writ petitioners and failed to appreciate that
the controversy was not confined to the determination of seniority amongst the promotees
and direct recruits but pertain to the appellants' claim for regularisation.
Learned counsel for the appellants submitted that the appellants were appointed
on the basis of public advertisement and on the recommendations of a newly
constituted Selection Committee and after considering all the eligible
candidates and that the appointees continued on the post uninterruptedly till regularisation
in their services. In these circumstances, it was submitted that the entire
length of service of the appellants are entitled to be considered for the
purpose of seniority. It was further argued that the appellants having been
fully qualified and appointed after facing the Selection Committee duly constituted
for the said purpose were entitled for regularisation prior to any direct
recruitments as contained in Rule 4 (1) and Rule 7 of the Regularisation Rules.
It was also submitted that the High Court has erred in reckoning the seniority
of the respondents/direct recruits from 16/17.09.1982 which date was
specifically scored out and for valid reasons, namely, to comply with the
provisions of Rule 4(1) of the Regularization Rules. It was also further
submitted that the High Court has failed to appreciate that the respondents
actually joined the post after 23.09.1982 only and hence they could not have
been granted seniority from 16/17.09.1982. It was also argued that the
appellants became the members of the services from the date of joining the post
and not from the date of their regularisation vide Government Order dated
22.09.1982.
Learned
counsel for the respondents, per contra, submitted that the High Court has
dealt with every aspect/arguments led by both the parties before it in
accordance with the principles laid down by this Court in a number of cases.
We
have perused the judgment of the High Court. Three issues were raised before
the High Court which read as under:
1.
That the State Government has no authority to disturb the merit list of the PSC
and adopt the policy of pick and choose out of the merit list prepared by the
PSC;
2.
That the officials of the Department of Medical Health and Family Welfare has
no authority to manipulate the records in order to favour some of the
candidates who have been regualirsed under the Regularization Rules.
3.
Even according to Rule 7 of the Regularisation Rules, the respondents herein
were entitled to be placed above the candidates who have been regularised under
the Regularisation Rules.
In
order to appreciate the correct position, few facts as regards the appointment
through PSC with special reference to the appellants/writ petitioners before
this Court is necessarily to be stated.
In the
year 1979, the State Government framed the U.P. Regularisation of Ad hoc
Appointments (for posts within the purview of the PSC) Rules, 1979 which came
into effect from 14.05.1979 and in the year 1980, the State Government framed
U.P. Inspectors of Drugs (Services) Rules, 1980 which provided for the direct
recruitment for the post of inspector of drugs through the PSC. In the year
1976, a requisition for selection of 27 candidates on the post of Inspectors of
Drug was sent by the U.P.
Government
to the UPPSC. On 14.05.1977 an advertisement was issued by the UPPSC for the said
27 posts in which qualifications for the candidates who wanted to apply was
also given. In pursuance of the said advertisement, on 21.05.1977, the
Department of Health instructed all the departmental candidates to apply for
their appointment against the post advertised by the PSC. Interviews were held
in the month of December, 1980 and the result thereof was communicated to the
State of U.P. on 14.10.1981. On the said date,
the PSC sent its recommendation to the State Government giving the list of 25
candidates for appointment in order of merit which included 11 candidates who
were already working as Drug Inspectors on ad hoc basis in the department.
On
receipt of this list, in the Department in October, 1981 some of the candidates
including the appellants/writ petitioners herein who were already working in
the Department found their names in the merit list below the candidates over
directly recruited and as such they persuaded the State Government to initiate
the regularisation under the Regularisation Rules which had already come into
force in 1979. The Director, Medical Health and Family Welfare, vide its order
dated 16.09.1982 by means of a letter ordered that subject to the seniority
vis-à-vis other persons appointed to the post from time to time, the Department
at a later date appointed the candidates who were direct recruits.
Subsequently, on 17.09.1982 itself such candidates were also posted at
different places. The candidates who are already working on ad hoc basis and
had influenced the Department to initiate regularisation proceedings when came
to know of such orders tried to manipulate at the lower level in the Department
and managed to get despatch number as well as the dates scored out. Similarly, despatch
number was scored out in many instances. Photocopies of the letters dated
16.09.1982 and 17.09.1982 have been marked as Annexures A & B. A perusal of
Annexures A and B would show that the Director, Medical Health had issued the
letter dated 16.09.1982 and Food and Drug Controller issued the letter dated
17.09.1982 under their own signatures with the date under the signatures, these
dates under the signatures could not be changed by the officials who tried to
manipulate in this regard. According to the respondents, the manipulations were
done by the officials because they could manage to get their appointment letter
issued on 22.09.1982 with the despatch No. 8165 i.e. prior to the despatch No.
mentioned in the letter dated 16.09.1982 after scoring out the same. This
letter dated 22.09.1982 has been marked as Annexure-C. On 12.01.1991, the
Department issued seniority list in which regularised drug inspectors appointed
on 22.09.1982 were allowed to steal march over the direct recruits who became
the members of service on 16/17.09.1982. As already noticed, being aggrieved by
the seniority list, the respondents herein challenged the same before the High
Court of Allahabad by filing writ petition.
It was
argued on behalf of the regularised Drug Inspectors that their seniority should
reckon from the date they were appointed as Drug Inspectors and that their regularisation
preceded with the appointment of directly recruited persons and, therefore,
they should be placed above in the seniority list. It was also stated in the
reply that the persons who have been selected by the PSC did not possess the
requisite qualification. At the time of hearing, it was brought to our notice
that most of the appellants/writ petitioners have no locus standi to plead as
their regularisation was not in accordance with the Regularisation Rules. It
was argued that according to Regularisation Rules, only those persons who were
directly recruited on ad hoc basis before 01.01.1977 and were continuing in
service as such on the date of commencement of these Rules were entitled for regularisation
and that appellant/writ petitioner Nos. 5,6 and 7 did not even qualify under
this clause as they were earlier appointed on temporary basis and after break
in service they were re-appointed in 1978 and as such they were not continuing
in service on ad hoc basis before 01.01.1977. It was also brought to our notice
that as per Regularisation Rules, the candidates who possess requisite
qualifications prescribed for regular appointment at the time of such ad hoc
appointment would be eligible for regularisation and in the case of
appellant/writ petitioner Nos. 1-4 they did not possess the requisite
qualifications at the time of their appointment as such they were not entitled
to be regularised.
A
perusal of the judgment of the High Court would clearly go to show that the
High Court has exhaustively dealt with all the issues and recorded a finding
after dealing with the principles laid down by this Court in regard to such
points/contentions. The High Court also on the issue of cutting and
over-writing has given a definite finding on the point whether the State
Government was justified in adopting the policy of pick and choose from the
merit list prepared by the PSC. The High Court, after taking into consideration
the principles laid down by this Court in a number of judgments, recorded a
finding as follows:- "It is evident that although in the instant case,
recommendation of the Public Service Commission was advisory in nature, it was
open for the Government either to accept the recommendation or decline to
accept the same but if it has chosen not to accept the recommendation of the
Commission the matter must have to be placed before the Legislative Assembly,
but in the instant case it was not done. As stated above, some of the promotees
as well as direct recruits, both were selected by Public Service Commission in
order of merit. Instead of accepting the recommendation in toto, the State
Government regulairsed the services of certain promotees and tried to allow the
promotees to steal march over the direct recruits when inter se seniority ought
to have been determined in accordance with seriatum of the merit list of the
Public Service Commission. The contention of the State Government that as the
process of regularisation was at advance stage, hence no direct or otherwise
appointment could be made, unless the services of the persons who were already
working on ad-hoc basis were regularised and were given appointment orders,
when Rule-7 of the U.P. Regularisation of Adhoc appointment (on posts within
the purview of Public Services Commission) Rules, 1979 clearly indicates that 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 person under these rules. There was
no impediment in the way of the State Government to have regularised services
of the promotees/ad-hoc Inspectors of Drugs. But the State Government adopted a
policy of pick and choose, out of the list and wrongly allowed them to steal a
march over the direct recruits in the matter of seniority which cannot be
permitted. As according to the regularisation rules, itself, promotees/adhoc
whose services were regularised, only deserved to be placed below the persons
appointed in accordance with the relevant service rules. The action of the
State Government by approving the list, prepared by Commission in part and
rejection in part was totally vitiated." On the point whether the
appellants/writ petitioners were entitled to the seniority from the date of
their original initial appointment, the High Court observed as follows:-
"In the present case rule of the seniority clearly provides that seniority
in any category or cadre post shall be determined from the date of the order of
substantive appointment. The posts of Drug Inspectors was within the purview of
Public Service Commission.
But,
ad-hoc appointments were made. The said ad-hoc appointments cannot be deemed to
be the substantive appointments. It were in the nature of stop gap or
fortuitous appointments, hence the period during which ad-hoc appointees worked,
cannot be counted for the purposes of seniority." Our attention was drawn
to the appointment letters enclosed as Annexure-9 at pages 152-156 of the
special leave petition which would show that the initial appointment of the
appellants were on purely temporary as stop gap arrangements.
As
regards the qualification of the respondents herein, the High Court has
recorded a finding which is quoted below:
"In
most of the writ petition, dispute of inter se seniority has been raised. While
raising dispute of seniority, the selection made by the Public Services
Commission was also challenged. In one or two of the writ petitions,
recommendations of the Public Service Commission were accepted by the State
Government. Thus the appointment became final and a vested rights have been
created in favour of those who were selected. In a proceedings for determining
the validity of the seniority list, it is not open for any person either
selected by Public Services Commission or whose services have been regularised
to challenge the selection made by the Public Service Commission and the
appointment made by the State Government by the Public Service Commission was
made in the year 1981 and it would be unfair and unjust for this Court to
declare the selection void. Hence, the third and last plea raised on behalf of
the ad-hoc/promotees fails." After recording the finding, the High Court
concluded that the inter se seniority of all the Inspectors of Drugs whether promotees
or direct selectees by the PSC deserved to be determined in accordance with the
merit prepared by the PSC. In this regard, the High Court has issued further
directions with reference to Rule 7 of the Regularisation Rules.
It was
contended by learned counsel for the appellants that in view of Rule 4,
appellants are required to be regularised first and thereafter, newly appointed
direct recruits are required to be appointed/confirmed. This contention has no
force. This contention has to be negatived in view of the specific finding by
the High Court that direct recruits were appointed either on 16/17.09.1982 and
the services of the appellants were regularised only on 22.09.1982.
The
common judgment passed by the High Court, in our view, does not call for any
interference and all the appeals fail and are dismissed.
However,
there will be no order as to costs.
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