R.K. Mobisana
Singh Vs. Kh. Temba Singh & Ors. [2007] Insc 1267 (12 December 2007)
S.B.
Sinha & Harjit Singh Bedi
[Arising
out of SLP(C) No. 20724 of 2005] WITH
CIVIL APPEAL NO. 5848 OF 2007 [Arising out of SLP(C) No. 20725 of 2005] AND
CIVIL APPEAL NO. 5838 OF 2007 [Arising out of SLP(C) No. 16901 of 2006] S.B.
SINHA, J 1. Leave granted.
2.
These appeals involving similar questions of law and fact were taken up for
hearing together and are being disposed of by this common judgment.
Appellant
as also the private respondents hereto have been working as Assistant Engineers
in the Public Works Department. The promotees are diploma holders, or degree
holders in Engineering. They were holding the posts of S.O. Grade 1, whereas
the direct recruits are Graduates in Engineering. Recruitment to the post of
Assistant Engineer and/or promotion thereto, although is governed by the Public
Works Department, Manipur Assistant Engineer (Civil/Mech) Surveyor of Works
Recruitment Rules of 1969, 1975 and 1984 made under the proviso appended to
Article 309 of the Constitution of India; there does not exist any Rule
governing seniority and in particular inter se seniority amongst the direct
recruits and the promotees.
3. In
terms of the recruitment rules, whereas forty per cent of the posts are to be
filled by direct recruitment from the open market, 60 per cent of the posts are
to be filled up by promotion in the following sub-quota:- i. 50% by selection
from amongst the Engineering Degree holders who have rendered a minimum of 3
years regular service as S.O. Grade I as equivalent Post.
Provided
that is sufficient number of Degree holders are not available, the vacancies
may be filled up by Diploma holders with 8 years regular service as S.O.
Grade-I.
ii. 50%
by selection from amongst the Engineering Diploma Holders of 3 years course
with 8 years regular service as S.O. Grade I or non Degree/non Diploma holders
with 15 years outstanding record as S.O. Grade I.
4, Before
embarking on the questions involved in these matters, we may notice the fact of
the matter.
5. The
Government of Manipur informed the Manipur Public Service Commission in regard
to existence of 39 vacancies in the posts of Assistant Engineer (AE) on or
about 18.4.1977. A request was made to convene Departmental Promotion Committee
for filling up the said vacant posts.
Some
of the promotees, who were either the Graduates in Engineering or were diploma
holders in Engineering were working as Section Officers (Grade-I). We would
come to their respective dates of appointment a little later, but, at this
stage, it may be noticed that in terms of the Recruitment Rules, in order to
become eligible for promotion, three years experience for the Graduates in
Engineering and eight years experience for the diploma holders in the
posts of Section Officer (Grade-I) was necessary. They had been promoted on an
ad hoc basis without following the procedure laid down under the Recruitment
Rules. On or about 6.3.1979, the Government of Manipur sent a revised proposal
for appointment to the post of Assistant Engineer (Civil/Mechanical) by
promotion on regular basis. However, yet again on 22.6.1981, the Government of
Manipur directed the Commission for convening a regular Departmental Promotion
Committee for consideration of promotion to the post of Assistant Engineer(Civil/Mechanical)
in the following terms :
I
am directed to send herewith a requisition in the MPSC Form No. 6 duly filled
in for convening a regular DPC for consideration of promotion to the post of
Assistant Engineer (Civil/Mech.). Required ACRs and Integrity certificates in
respect of the eligible officers are being sent separately. You are requested
kindly to examine the case for convening a DPC at an early date.
Kindly
acknowledge the receipt of this letter.
Yours
faithfully Encl : As above (R. Marulung) Under Secretary to the Govt. of
Manipur
6.
Respondents were promoted as Assistant Engineers on an ad hoc basis. We may
notice that the contesting respondent in SLP(C) No. 16901 of 2006 was promoted
as Assistant Engineer on ad hoc basis against a permanent vacancy. He was
appointed as Assistant Engineer on officiating basis with effect from the date
of joining of the post on the recommendations of the Departmental Promotion
Committee held on 18.7.1985 and 20.7.1985 in the 1985 vacancies, which was
followed by an order dated 06.09.1986 regularizing his services from
20.09.1985.
7.
Indisputably, a seniority list was published on 31.1.2000.
8. Ten
writ petitions were filed by the promotees before the High Court raising a
grievance that in the said seniority list, although they were shown as
Assistant Engineers, having been appointed against the vacant posts in the promotee
quota under clear vacancies which were available in 1981 itself, they were
appointed on ad hoc basis. According to them, although they were promoted to
the post of Junior Engineer on ad hoc basis in or about 1981, they had been
shown as junior to direct recruits who were appointed in 1986.
9. A
learned Single Judge of the High Court noticed that in some of the cases,
regularization with retrospective effect had been directed to be given.
It
took note of the contention of the writ petitioners that they fulfilled the
eligibility criteria for promotion, but since at the relevant time, the
Commission became defunct, they were promoted on ad hoc basis against the
available vacancies made for the promotees. The learned Single Judge recorded
that the counsel appearing on behalf of the State was not in a position to
inform the court in regard to the vacancy position as was obtaining then and
furthermore the statements made in the writ application in regard to promotion
in excess of quota or grant of promotion in absence of availability of any
vacancy having not been controverted, the same should be accepted to be
correct. It was furthermore noticed that the minutes of the Review Committee
were not made available to the Court and, therefore, it arrived at a conclusion
that the Review Committee failed to discharge its duties, as a result whereof
the impugned seniority list failed to demonstrate the correct seniority
position drawn in accordance with law.
10.
The learned Single Judge therefore, directed for preparation of a fresh
seniority list. It was also directed that a Monitoring Committee be constituted
to ascertain the availability of vacancies with reference to the years of
appointment of the various promotees vis-`-vis, the direct recruits and to
examine whether any of them encroached upon the quota meant for others. It was
furthermore directed that in view of the failure on the part of the State
Government to place the correct factual position to conduct a basic fact
finding exercise in regard to availability of vacancies in respect of the
quotas, if any, at the relevant point of time.
It was
directed :
32.
The Committee is to undertake the exercise having followed the following
guidelines a. The respective date of initial promotion on ad hoc basis of the
petitioners be treated as substantive appointment as Assistant Engineer.
b. The
Committee is to ascertain the availability of vacancy with reference to the
year of appointment of the petitioners already done on ad hoc basis and also
the appointment of private respondents and to examine whether any of them encroached
the quota meant for others.
c. The
promotees and direct recruitees shall be fitted against the available vacancies
within their respective quotas.
d. In
case, any excess promotion/direct appointment are found to be there, he or they
should be adjusted against the vacancy made available subsequently.
e. In
considering the availability of vacancy the Committee must count the vacancy simplicitor
be it temporary vacancy or substantive vacancy in the post of Assistant
Engineer.
f.
After exhausting the fitment exercise the intra seniority viz., the seniority
of the promotee themselves and the seniority of the direct recruitees
themselves should be prepared separately.
g.
Thereafter, having maintained ratio of 3:2 inter se seniority list is to be
prepared, first 3 promotees would be listed thereafter 2 direct recruitees
would be listed followed by 3 promotees 2 direct and so on. In case in any year
it is found that only some promotions are made out, no direct recruitment, the promotees
should be shown enbloc senior vis-`-vis in case any particular year it is found
that the only direct recruitments were made and no promotion, the direct recruitees
be shown enbloc senior.
h. To
remove any confusion and doubt a draft inter se seniority be published first
inviting claims and objections and personal hearing of the objector/claimant if
any, be allowed and, thereafter, the final inter se seniority list be
published. The said exercise must be completed within a period of 3 months from
this day.
11.
Eleven Writ Appeals were filed thereagainst; ten by the direct recruits and one
by the State of Manipur which was marked as Writ Appeal No.
384 of 2003. It appears that the writ appeals came up before two Division
Benches of the High Court in two batches. The judgment in the first batch was
rendered by a Division Bench on 31.3.2004 in terms whereof the judgment of the
learned Single Judge was affirmed. The Division Bench in those cases held that
having regard to the fact that the orders of the High Court granting
retrospective regularization to the promotees having not been challenged either
by the direct recruits or by the State Government had attained finality. In the
aforementioned premise, it was directed :
10.
From the aforesaid, it is apparent to us, that for whatever reasons the orders
passed by the High Court in the matter of regularization of the services of the
promotee officers covered under the writ appeals, were not challenged by the
State Government and has attained finality. The appellants also choose not to
file appeals against those orders moved applications for review of those no to
file applications for review of those orders as has been done in other cases.
In the aforesaid circumstances, the promotee officers shall be taken to be
regularly promoted from the date they have been regularized in the post of
Assistant Engineers. In the matter of seniority, without there being any
impediment under Rules, the seniority shall be counted in all circumstances
from the date of regular appointment on the posts. 12. Indisputably, the
review petitions filed thereagainst were dismissed.
13.
However, the four remaining appeals came up for consideration before another
Division Bench, (although the senior Judge in both the batches of Writ Appeals
was common). In the second judgment which was pronounced on 24.8.2004, the
Division Bench while allowing the appeal in part, upholding the final seniority
list, found the directions of the learned Single Judge in regard to
constitution of three member Monitoring Committee to make necessary corrections
in the final list dated 31.1.2000 in accordance with law and more particularly
following the general guidelines for promotion of 1982 and for determining
seniority of 1959 and a proposition A of the decision of this Court
in the case of direct recruitment; to be improper. Both the aforementioned
judgments of the Division Bench are now under challenge before us at the
instance of the direct recruits and the post 1985 vacancies promotees
respectively.
14.
The question herein which arises for our consideration is as to whether the ad
hoc promotions granted to the employees from the post of Section Officer
(Grade-I) to the post of Assistant Engineer in the P.W.D. of Government of
Manipur could have been directed to be regularized with retrospective effect so
as to effect the inter se seniority between the direct recruits and the promotees.
Two seniority lists were published; one in the year 1987 and another in 2000.
15.
There are ten direct recruits before us. The details of their services are as
under:- A. Direct Recruits 2000 List 87 List 1 Temba Singh Degree holder
Direct Recruit Appointed in 1985 At serial no.
33 2.
Rabindra
Kumar Singh ---do--- --do-- ---do--- At serial no.
38 3.
Ch. Biren
Singh --do-- --do-- ---do--- At serial no.
39 4.
G.Lungalin
--do-- --do-- Appointed 5.1.83 At serial no.
83 At
serial no.
30 5.
L. Ingochouba
Singh --do-- --do-- Appointed in 1985 At serial no.
48 6.
M. Thaimon
Singh --do-- --do-- Appointed in 1980 At serial no.
45 At
serial no. 8 7.
Ksh. Birendra
Singh --do-- --do-- --do-- At serial no.
49 At
serial no.
10 8.
Kh. Irabot
Singh --do-- --do-- --do-- At serial no.
55 At
serial no.
13 9.
Th. Thambalngou
Singh --do-- --do-- --do-- At serial no.
63 At
serial no.
17 10.
Pradeep
Mukherjee --do-- --do-- Appointed 15.1.81 At serial no.
77 At
serial no.
26
16.
There are five promotee Assistant Engineers whose seniority has been determined
by the High Court, the details whereof are as under:- SL. No.
Name
of the promotee Date of appointment Date of Ad hoc appointment Date of regular/officiat
ing appointment Details of the High Court Order by which regularized Government
orders of regularization/Remarks
1. Ch.
Tiken Singh (Contesting Respondent No. 1 in SLP Arising out of W.A. No. 393/03)
At serial no. 37 in the seniority list 26.7.1980 Section Officer Grade I DOB
1.9.57 15.10.1981 AE on regular basis on recommendatio n of DPC 20.9.1985 AE on
regular basis on recommendati on of DPC Retrospective regularization from
26.7.1983 under the relevant R.R. vide order dated 5.4.1989 in C.R. No. 392 of
1988 No order as to retrospective seniority Government order regularizing the
services w.e.f. 26.7.1983 explicitly indicates seniority to be determined later
2. I. Lokendra
Singh (Contesting Respondent No. 1 in SLP Arising out of W.A. No. 255/01) At
serial no. 60 in the seniority list 26.6.1980 Section Officer Grade I DOB
1.3.53 15.10.1981 AE on ad hoc basis 20.09.1985 AE on Officiating basis on recommendati
on of DPC Retrospective regularization from 26.6.1983 vide order dated 5.6.1990
in C.R. No. 160 of 1990 No order as to retrospective seniority.
The
Honble High Court relied on order passed in CR. No. 392 of 1988 Government
order regularizing the services w.e.f. 26.6.1983 explicitly indicates seniority
to be determined later
3. L. Surchandra
Singh (Contesting Respondent No. 1 in SLP Arising out of W.A. No. 387/03 &
W.A. No. 384/03) At serial no. 32 in the seniority list 23.11.1976 Section
Officer Grade I DOB 1.3.50 9.7.1979 AE on ad hoc basis 20.9.1985 AE on regular
basis on recommendati on of DPC Retrospective regularization from date he
became eligible vide order dated 13.9.1991 in C.R. No. 399 of 1991 No order as
to retrospective seniority.
The
High Court relied on order passed in CR. No. 160 of 1991. The High Court in its
order recorded that he was not eligible for promotion to A.E. Government order
regularizing the services w.e.f. 23.11.1979 explicitly indicates seniority to
be determined later
4. W. Chaoba
Singh (Contesting Respondent No. 2 in SLP Arising out of W.A. No. 385/03) At
serial no. 56 of the seniority list 06.01.1972 Section Officer Grade I DOB
1.3.49 30.10.1976 AE on ad hoc basis 20.9.1985 AE on regular basis on recommendati
on of DPC Retrospective regularization from 30.10.1976 vide order dated
17.12.1991 in C.R. No. 639 of 1991.
No
order as to retrospective seniority.
The
High Court relied on order passed in C.R. No. 132/1990 wherein the High Court
had granted regularization along with seniority. This order was challenged in a
review petition by the Direct Recruits and the order has been modified to be
extent that the seniority will be determined according to rules.
Government
order regularizing the services w.e.f. 30.10.1976 explicitly indicates
seniority to be determined later.
5. S. Tejamani
Singh (Contesting Respondent No. 1 in SLP Arising out of W.A. No. 386/03) At
serial no. 35 of the seniority list 23.11.1976 Section Officer Grade I 1.11.47
9.7.1979 AE on Ad hoc basis 20.9.1985 AE on regular basis on recommendati on of
DPC Retrospective regularization vide order dated 18.12.1991 in C.R. No. 639 of
1991 No order as to retrospective seniority The High Court relied on order
passed in C.R. No. 132/1990 wherein the high court had granted regularization
along with seniority. This order was challenged in a review petition by the
Direct Recruits and the order has been modified to the extent that the
seniority will be determined according to rules Government order regularizing
the services w.e.f. 9.7.1979 explicitly indicates seniority to be determined
later
6. Th.
Rupachandra Singh (Contesting Respondent No. 1 in SLP Arising out of W.A. No.
385/03) At serial no. 59 of the seniority list 28.10.1971 Section Officer Grade
I DOB 1.11.48 30.10.1976 AE on Ad hoc basis 20.9.1985 AE on regular basis on recommendati
on of DPC Retrospective regularization from vide order dated 23.1.1992 in C.R.
No. 2372 of 1990 No order as to retrospective seniority Government order
regularizing the services w.e.f. 30.10.1976 explicitly indicates seniority to
be determined later.
17.
There are four promotees whose claim to seniority has been rejected by the High
Court.
SL.
No.
Name
of the promotee Date of appointment Date of Ad hoc appointment Date of regular/officiat
ing appointment High Court order by which regularized Violations
1.
R.K. Mobisana (Degree holder) (Petitioner in SLP(C) No. 20724 of 2005) At
serial no. 64 in the seniority list 25.7.1980 Section Officer Grade I (DOB
1.3.56) 6.5.1983 AE on ad hoc basis 20.9.1985 AE on officiating basis on recommendati
on of DPC Retrospective regularization w.e.f. 26.7.1983 under the relevant R.R.
vide order dated 3.3.2000 in W.P.(C) No. 188 of 2000 High Court order
specifically states his regularisation shall be counted for the purpose of
retrial or pensionary benefits and seniority to be determined according to
rules.
Government
order regularizing the services explicitly indicates it is for retrial and pensionary
benefits.
Seniority
to be determined later - Admittedly the promotion was dehors the R.R.s ; there
was no selection process conducted by the DPC - Became eligible for promotion
only after three years from the date of appointment i.e. on 25.7.1983 but was
promoted on ad hoc basis on 6.5.1983, much earlier to his eligibility date.
2. M. Hemantaku
mar (Degree holder) (Petitioner in SLP(C) No. 20725 of 2005) At serial number
45 in seniority list 25.7.1980 Section Officer Grade I (DOB 1.3.53) 26.7.1983
AE on ad hoc basis 20.09.1985 AE on regular basis on recommendati on of DPC -
Admittedly the promotion was dehors the R.R.s.; there was no selection process
conducted by the DPC
3. Th.
Shantikuma r Singh (Degree holder) 25.7.1980 Section Officer Grade I 6.5.1983
A.E. on Ad hoc basis -Admittedly the promotion was dehors the R.R.s; there was
no selection process conducted by the DPC - Became eligible for promotion only
after three years from the date of appointment i.e. on 25.7.1983 but was
promoted on ad hoc basis on 6.5.1983, much earlier to his eligibility date
4. Mongjam
Budhi Singh (Diploma Holder) 14.11.1969 Section Officer Grade I 25.2.1981 A.E.
on Ad hoc basis - Admittedly the promotion was dehors the R.R.s; there was no
selection process conducted by the DPC 18. Out of the aforementioned four
persons, only R.K. Mobisana and N. Hemantakumar both of whom are degree holders are before us, but the
other two promotees namely Th. Shantikumar Singh and Mongjam Budhi Singh have
not filed any special leave petition.
19.
Submissions of the aforementioned two appellants whose writ petitions have been
dismissed and the other promotee respondents before us are as under :
(i)
They having been promoted against vacancies arising in the year 1985 in the promotee
quota and their services having been regularized with retrospective effect and
not by way of stop gap employment, their seniority should be considered in the
light of the proposition B contained in the judgment of this Court in
Direct Recruit Class II Others [(1990) 2 SCC 715].
(ii)
The recruitment rules having not contained any prohibition on grant of regularisation
with retrospective effect and in any event the same being permissible inter alia,
in terms of the decision of this Court in 7 SCC 561] , the first judgment of
the High Court should not be interfered therewith. The promotees were
therefore, entitled to seniority with effect from 26.7.1983 i.e. from the date
from which their services were regularized with retrospective effect by orders
passed in their favour by the Gauhati High Court, Imphal Bench from time to
time.
(iii)
So far as the second judgment of the Gauhati High Court is concerned, the same
does not lay down the correct law being contrary to and inconsistent with the
principles laid down by this Court in [(1993) 3 SCC 371] and Suraj Prakash
(supra).
(iv)
The learned Single Judge, in any event, having directed examination of the
matter by a fact finding body upon proper application of mind and determination
of seniority having regard to the decisions of this Court, the same deserves to
be affirmed.
20.
Mr. L.N. Rao, learned counsel appearing on behalf of the direct recruits, on
the other hand, would submit that the promotees were not entitled to seniority
from the date of their ad hoc promotion for the following reasons;
(i) Ad
hoc promotions were found to have been made in violation of the Recruitment
Rules.
(ii)
The procedure prescribed for grant of regular promotion had not been followed.
(iii)
Some of the promotees did not fulfil the requisite eligibility criteria
prescribed by the rules.
(iv)
The orders passed by the High Court directing regularisation with retrospective
effect did not confer on them any consequential seniority.
(v)
Some judgment of the High Court giving consequential seniority were reviewed in
favour of the direct recruits.
(vi)
There is no rule which enables the Government to give seniority with retrospective
effect to the promotees.
(vii)
The Direct Recruits cannot be found fault with for non questioning of the
orders of regularization in favour of the promotees as they, in stricto sensu,
did not have the locus standi therefor, until the decision to confer
consequential seniority which adversely affected their rights was taken by the
competent authority.
(viii)
All High Court orders granting regularization were silent on seniority.
(ix)
The consequent orders of the Government regularizing the services specifically
stated that the seniority shall be determined later. This order was not
challenged by the promotees.
(x) In
three cases where the High Court granted seniority, review petitions were filed
by the Direct recruits and the order was modified stating that the seniority
will be determined according to rules and as these review orders have become
final, any sub mission made contrary thereto should not be permitted to be
raised.
(xi)
Had there been any mention of seniority in any of the High Court orders
referred to in the judgment of the Division Bench, the Direct recruits could
have challenged the same.
(xii)
Their exists no rule which enabled the Government to grant seniority with
retrospective effect.
21.
These matters clearly demonstrate as to how complications arise in the matter
of determination of inter se seniority because of absence of specific rules
made in this behalf.
22. We
may, however, at the outset notice that meeting of the Departmental Promotion
Committee had not been convened in terms of the extant rules.
23. We
have noticed hereinbefore that there are various recruitment Rules which are
applicable in respect of recruitment or the promotions. We will take a brief
survey of the said Rules which may be held to be applicable as orders of
promotion have been passed on various days.
24.
Under the Recruitment Rules, 1969, the method of recruitment prescribed for the
post of A.E. is:
--50
% by direct recruitment from the open market and ;
--50 %
by promotion from amongst the Section Officers (Civil) who had rendered 2 years
of regular service in the grade after appointment on regular basis in case of
Degree holders and 5 years service in grade after appointment on regular basis
in cases of Diploma holders.
25.
Under the Recruitment Rules, 1975 the method of recruitment prescribed is:
-40%
of the overall sanctioned strength by direct recruitment.
-60%
of the overall sanctioned strength by promotion.
This
is to be filled up in the sub-quota as under:
(i)
50% sub-quota by selection from amongst the 3 years course Diploma holder
(Civil/Mechanical) with 8 years regular service as S.O. Grade 1 or a post
declared by the Government to be equivalent post.
(ii)
40% sub-quota by selection from amongst the graduate Engineer (Civil/Mechanical)
who have rendered 3 years regular service as S.O. Grade I or in a post declared
by the Government to be equivalent.
(iii)
10% sub-quota by selection from amongst non Graduate, non Diploma S.O. Grade I
who has rendered 12 years continuous regular service.
26.
Under the Recruitment Rules, 1984, the method of recruitment prescribed is;
-40%
by Direct recruitment from the open market.
-60%
by promotion which is to be filled up under the following sub quota:
i) 50%
by selection from amongst the Engineering Degree holders who have rendered a
minimum of 3 years regular service as S.O. Grade I as equivalent Post.
Provided
that is sufficient number of Degree holders are not available, the vacancies
may be filled up by Diploma holders with 8 years regular service as S.O.
Grade-I.
ii)
50% by selection from amongst the Engineering Diploma Holders of 3 years course
with 8 years regular service as S.O. Grade I or non Degree/non Diploma holders
with 15 years outstanding record as S.O. Grade I.
27.
However, admittedly there does not exist any rule for determination of inter se
seniority.
They
were governed by some office memorandums. An Office Memorandum was issued on
22.12.1959 providing for general principles for determination of seniority in
the general services wherein inter alia it was stated;
5.
Promotees:
(i)
The relative seniority of persons promoted to the various grades shall be
determined in the order of their selection for such promotions;
Provided
that where persons recruited initially on temporary basis are confirmed
subsequently in an order different from the order of merit indicated at the
time of their promotion, seniority shall follow the order of confirmation and
not the original order of merit.
(ii)
Where promotion to a grade are made from more than one grade the eligible
persons shall be arranged in separate lists in the order of their relative
seniority in their respective grades. Thereafter, the Departmental Promotion
Committee shall select the persons for promotion from each list upon the
prescribed quota and arrange all the candidates selected from different lists
in a consolidated order of merit which will determine the seniority of the
persons on promotion to the higher grade.
Note:
If separate quotas for promotion have not already been prescribed in relevant
recruitment rules, the Ministries/Departments may do so now, in consultation
with the Commission wherever necessary.
6.
Relative Seniority of Direct: Recruits and promotees.
The
relative seniority of direct recruits and of promotees shall be determined
according to the rotation of vacancies between direct recruits and promotees
which shall be based on the quotas of vacancies reserved for direct recruitment
and promotion respectively in the Recruitment Rules.
28.
The legal principles governing determination of inter se seniority is no longer
res-integra. The question came up for consideration before a Constitution Bench
of this Court in the Direct recruit (supra) wherein the following criteria were
laid down;
(A)
Once an incumbent is appointed to a post according to 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 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 continues in the post uninterruptedly till the regularisation
of his service in accordance with the rules, the period of officiating service
will be counted.
(C)
When appointments are made from more than one source, it is permissible to fix
the ratio for recruitment from the different sources, and if rules are framed
in this regard they must ordinarily be followed strictly.
(D) If
it becomes impossible to adhere to the existing quota rule, it should be
substituted by an appropriate rule to meet the needs of the situation. In case,
however, the quota rule is not followed continuously for a number of years
because it was impossible to do so the inference is irresistible that the quota
rule had broken down.
(F)
Where the rules permit the authorities to relax the provisions relating to the
quota, ordinarily a presumption should be raised that there was such relaxation
when there is a deviation from the quota rule.
(H) If
the quota rule is prescribed by an executive instruction, and is not followed
continuously for a number of years, the inference is that the executive
instruction has ceased to remain operative.
29.
Inter se seniority between the parties keeping in view the peculiar fact
situation obtaining herein is required to be considered. Before applying the
principles laid down therein to the fact of this case, we may notice a few
other decisions of this Court. the Rule which was applicable therein was as
under:- 53. Then comes the rule of seniority. Seniority is to be
determined by the date of first appointment to such service, class or
category or grade. It reads as follows:
24.
Seniority
(1)
The seniority of a person who is subject to these Rules has reference to the
service, class, category and grade with reference to which the question has
arisen. Such seniority shall be determined by the date of first appointment to
such service, class, category or grade, as the case may be.
Note
1. Interpretation The
words date of first appointment occurring in the above Rule will mean
the date of first substantive appointment, meaning thereby the date of
permanent appointment or the date of first appointment on probation on a clear
vacancy, confirmation in the latter case being subject to good work and conduct
and/or passing of any examination or examinations and/or tests:
Provided
that the inter se seniority of two or more persons appointed to the same
service, class, category or grade simultaneously, will, notwithstanding the
fact that they may assume the duties of their appointments on different dates
by reason of being posted to different stations, be determined:
(a) in
the case of those promoted by their relative seniority in the lower service,
class, category or grade;
(b) in
the case of those recruited direct (except those who do not join their duties
when vacancies are offered to them) according to the positions attained by and
assigned to them in order of merit at the time of competitive examinations or
on the basis of merit and ability and physical fitness etc., in case no such
examination is held for the purpose of making selections;
(c) as
between those promoted and recruited direct, by the order in which appointments
have to be allocated for promotion and direct recruitment as prescribed by the
Rules.
Note. - * * * It has to be noticed that
the interpretation clause below Rule 24 is very wide and under that provision,
seniority of a promotee depends on the date of the commencement of probation on
a clear vacancy. Probation can be commenced in the case of a person promoted or
recruited by transfer from the date of existence of a clear vacancy in the promotee/transfer
quota and depending upon his eligibility, suitability based on ACRs.
Having regard to the said Rule in mind this Court surveyed the precedents one
way or the other to hold;
71.
The direct recruits have strongly relied upon the decision in V. Sreenivasa
Reddy v. Govt. of A.P. 12 But this decision cannot be of any help to them. In
that case Rule 10 and Rule 23 of the Andhra Pradesh State and Subordinate Service Rules were referred to. It was
pointed that the promotees temporary service under Rule 10 (i.e. service
rendered in a post to which the officer was not appointed according to rules),
could not be counted on facts, because there was no order of retrospective regularisation.
In fact, this Court accepted that if regularised under Rule 23 of the A.P.
Rules, the temporary appointees could have been regularised from an anterior
date. (This Court then referred to certain rulings which said that direct
recruits could not count ad hoc service rendered by them before their regular
selection.) On facts, this Court held that the Government had relaxed the Rule
regarding PSC consultation but had placed the promotees below the direct
recruits and this need not be interfered with. This case far from supporting
the direct recruits, supports the promotees. 142] were not applicable to
the fact of that case it was opined;
75.
These rulings cannot be applied to the case of the promotees. In fact the
principle laid down in these cases is consistent with the principles in service
jurisprudence so far as the ad hoc service rendered by direct recruits before
the date of their regular selection is concerned.
Their
service counts only from the date of regular appointment according to rules and
any ad hoc/stopgap service rendered before regular selection cannot count for
seniority.
31.
The Court in paragraph 77 of the judgment noticed the decisions where promotees
were held to be not entitled to seek regularisation of ad hoc services in certain
situations. The Court summarized its finding in paragraph 79 in the following
terms;
79.
Summarising the position, we therefore hold that the ad hoc/stopgap service of
the promotees cannot be treated as non est merely because PSC was not consulted
in respect of continuance of the ad hoc/stopgap service beyond six months. Such
service is capable of being regularised under Rule 23 of the J&K (CCA)
Rules, 1956 and rectified with retrospective effect from the date of occurrence
of a clear vacancy in the promotion quota, subject to eligibility, fitness and
other relevant factors.
There
is no rota rule applicable. The quota rule has not broken
down. Excess promotees occupying direct recruitment posts have to be pushed
down and adjusted in later vacancies within their quota, after due regularisation.
Such service outside the promotee quota cannot count for seniority. Service of
the promotees which is regularised with retrospective effect from the date of
vacancies within the quota counts for seniority.
However,
any part of such ad hoc/stopgap or even regular service rendered while
occupying the direct recruitment quota cannot be counted. Seniority of the promotees
or transferees is to be fixed as per quota and from the date of commencement of
probation/regular appointment as stated above. Seniority of direct recruits is
from the date of substantive appointment. Seniority has to be worked out
between direct recruits and promotees for each year. We decide Point 3
accordingly.
Point
4 Direct recruits cannot claim appointment from date of vacancy in quota before
their selection SCC 476], direct recruitment and ad hoc appointment was
distinguished stating :
...If
the ad hoc selection is followed by regular selection, then the benefit of ad
hoc service is not admissible if ad hoc appointment is in violation of the
rules. If the ad hoc appointment has been made as a stopgap arrangement and
where there was a procedural irregularity in making appointments according to
rules and that irregularity was subsequently rectified, the principle to be
applied in that case was stated once again. There is difficulty in the way of
the appellants to fight out their case for seniority should be reckoned by
reason of the length of the service whether ad hoc or otherwise inasmuch as
they had not been recruited regularly. As stated earlier, the appellants were
regularly found fit for promotion only in the year 1977 and if that period is
reckoned their cases could not be considered as found by the Tribunal. It
was furthermore observed;
It
is only in those cases where initially they had been recruited even though they
have been appointed ad hoc the recruitment was subject to the same process as
it had been done in the case of regular appointment and that the same was not a
stopgap arrangement. That is not the position in the present cases at all.
Therefore, we are of the view that the conclusions reached by the Tribunal
appear to us to be correct and call for no interference.
However,
we make it clear, as noticed earlier, that while amending the Rules of
Recruitment in 1984 all those who are already in service will be borne in mind
in adjusting the seniority amongst the promotees inter se and suitable
adjustments could be made and so far as the direct recruits are concerned,
their cases will go by their quota rule and the view taken by the Tribunal in
this regard cannot be taken exception of.
33. Suraj
Prakash Gupta (supra) has been distinguished by this Court in [(2001) 5 SCC
581] stating;
8.
...The next case relied upon by Mr.Rao is the case of Suraj Prakash Gupta v.
State of J&K. In the aforesaid case, on consideration of the relevant rules
governing the service conditions of the Assistant Engineers of the Jammu and
Kashmir Government, the Court had observed that ad hoc or temporary service of
a person, appointed by transfer as an Assistant Engineer or by promotion as an
Assistant Executive Engineer can be regularized through the Public Service
Commission and Departmental Promotion Committee from an anterior date in a
clear vacancy in his quota, if he is eligible and found suitable for such
transfer or promotion, as the case may be, and his seniority will count from
that date. The aforesaid conclusion was drawn because of the provisions of Rule
23 and Rule 15 of the Jammu and Kashmir Rules but in the case in hand, there is
no provision, which has been brought to our notice, which enables the
appointing authority to regularise a promotion from an anterior date, though
the suitability test is held at a later date. In the absence of any such
provision in the Rules in question, the ratio of the aforesaid decision, on
interpretation of the relevant rules of the Jammu and Kashmir Engineering Rules will have no application. (emphasis
supplied)
34. To
the similar effect is the decision of this Court in Md. Israil and Prakash
Gupta (supra) and Shanmugam (Supra) wherein it was opined that those decisions
were rendered having regard to the peculiar rules which were governing the
service conditions of the employees;
35. We
may furthermore notice that this Court in D.N. Agrawal and Anr. categorically
held that ad hoc promotion without following the Recruitment Rules would not
lead to any right for computation of seniority. opined :
17.
It was contended by the learned counsel for the appellants that in view of Rule
4, the 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 16-9-1982/17-9-1982 and the services of the appellants were regularised only
on 22-9- 1982.
37.
Applying the principles of the aforementioned decisions to the facts of this
case, we are of the opinion that although in terms of the office memorandum, no
retrospective effect could be given to the order of regularisation passed in favour
of the promotees, as in absence of any seniority rules operating in the field,
the State was required to evolve a policy. It for its own reason did not do so.
38.
The office memorandum of 1959 was applicable in a case of this nature. In some
of the cases, promotion might have been given without following the rules. When
promotion is given only in the exigency of situation without following the
Rules, the period cannot be counted towards seniority.
39. If
they had been given regularisation with retrospective effect, the same by
itself may not be a ground to apply the said order ipso facto for determining
the inter se seniority. Seniority although is not a fundamental right but a
civil right. Such a right of the direct recruits could not have been taken away
without affording an opportunity of hearing to them.
40. It
was obligatory on the part of the official respondents to take into
consideration that the retrospective regularization could be granted only when
there exists such a rule. If rules were not followed at the time of grant of
promotion, question of grant of regularization with retrospective effect would
not arise. Retrospective regularization whether in terms of the directions of
the High Court or otherwise, thus, although could confer other service benefits
to the officer concerned, but the same cannot be held to be of any assistance
for reckoning seniority with retrospective effect.
41. It
was for the DPC to recommend in regard thereto.
42. In
some of the cases, evidently the procedure has not been followed.
Therefore,
the question of their acquiring seniority over the direct recruits does not
arise.
43.
The matter, therefore, requires a closure scrutiny by the State itself.
As the
function relating to determination of inter se seniority is that of the State,
we do not approve constitution of a committee, as has been proposed by the
learned Single Judge. It would, however, be open to the State to do so, if it
so desires. The competent authority of the State is, therefore, directed to
determine the inter se seniority of the parties in view of the principles
enunciated hereinbefore and apply the same to the fact of each case. Such an
exercise should be completed within a period of three months.
These
appeals are, therefore, disposed of with the aforementioned observations and
directions with no order as to costs.
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