Ashok
Kumar Shrivastava and Ors Vs. Ram Lal and Others [2008] Insc 18 (8 January 2008)
Altamas
Kabir & P.Sathasivam
With
Civil Appeal Nos. 4969/07 and 4970/07 Altamas Kabir,J.
1.
These three appeals arise out of a common judgment and order dated 20.9.2006
passed by the Lucknow Bench of the Allahabad High Court disposing of several
Writ petitions filed by the appellants in these appeals. Since these appeals
arise out of a common judgment and common questions of fact and law are
involved, they have been taken up together for final hearing and disposal. While
C.A.No. 4968/2007, arises out of W.P.No.1041/96, W.P.No.1295/97 and W.P.
No.1863/98, the other two appeals arise out of the other Writ petitions
disposed of by the common judgment.
2. In
order to appreciate the issues which arise in these appeals it is necessary to
indicate some of the facts set out in the writ petitions.
3. At
the relevant point of time in the U.P. Trade Tax Department there were 669
posts of Trade Tax Officers, Grade II. Out of the said 669 posts, about 502
posts belonged to the Direct Recruits quota, but in 1980 only 243 of the posts
had been filled. The vacancy in respect of the remaining 259 posts were the
result of the slow and long drawn out process of the U.P. Public Service Commission
in conducting the U.P. Subordinate Service Examination.
4.
During the hearing of the writ petitions it transpired that the Commissioner,
Trade Tax, had sent a requisition to the U.P. Public Service Commission on
25.9.1980 for filling up 75 vacancies. Another requisition was sent on
9.12.1981 for 115 posts. Against the first requisition the Public Service
commission sent the names of candidates only on 6.9.1982. In the meantime,
after December 1981 a further 28 vacancies arose and a revised requisition was
sent on 14.10.1982 for 143 vacancies. A total number of 143 posts were
advertised in 1985 and in September 1986 the said 143 candidates were made
available by the Public Service Commission.
5. As
will also appear from the records, between 1982-1986, further requisitions were
repeatedly made by the Commissioner, Trade Tax, requesting the Public Service
Commission and the Government to make available further candidates in the
direct recruits quota to fill up the remaining vacancies. Along with the vacancies
in the quota for direct recruits there were 167 vacancies in the promotion
quota also. On 6.12.1983 the Commissioner, Trade Tax sent a requisition for 26
posts which was enhanced to 33 posts by a letter dated 28.8.1984. In February
1985 a reminder was sent for 176 posts, though by that time the Public Service
Commission had already advertised for 143 posts and the Commissioner, Trade Tax
was informed in January 1986 that 143 candidates would probably be made
available in June 1986.
6.
Since apparently the work of assessment and collection of revenue was being
seriously hampered, the Commissioner, Trade Tax, wrote to the Secretary,
Institutional Finance, in February 1986, to provide retrenched officers from
other Departments to conduct the said work and in March 1986 the Commissioner,
Trade Tax mooted the proposal to amend the U.P. Sales Tax Officers (Grade II)
Service Rules 1983, and to add a proviso to Rule 5(1) which would enable the
Governor, in case of an administrative necessity and in the public interest, to
authorise the Commissioner, Trade Tax, to conduct a Limited Departmental
Examination from amongst the permanent Group C employees to fill up
the vacancies in Group B. The said employees would be deemed to be
officers of the quota of direct recruits and would be entitled to regular
appointment as contemplated under the Rules.
7. The
Special Secretary suggested that the proposal of the Commissioner, Trade Tax,
could be placed before the Cabinet for its approval for conducting a Limited
Departmental Examination. On 11.8.1986 a detailed proposal was also sent by the
Commissioner, Sales Tax, for holding a Limited Departmental Examination from
amongst permanent employees of the Department.
8. The
Special Secretary, Institutional Finance, wrote to the Chairman, Public Service
Commission, on 23.8.1986 apprising him of the departments decision to hold
a Limited Departmental Examination for which an interview would have to be
conducted by a Selection Committee where the Public Service Commission would
also be represented by a Member. The said decision was disapproved by the
Commission, but ultimately the Cabinet gave its approval to the
Departments proposal to withdraw 97 posts of direct recruits from the
purview of the Public Service Commission and to conduct a Limited Departmental
Examination for the said posts. The Commissioner, Trade Tax, was informed of
the said decision by the Special Secretary by his letter dated 11.12.1986.
9.
Pursuant to the aforesaid communication a Circular was issued by the
Commissioner, Trade Tax, on 23.12.1986 whereby applications were invited for 97
posts from amongst the permanent employees in Grade C who had
completed 7 years of service. In the Circular the posts to be filled up were
described as temporary posts from the direct quota which would be converted
into permanent posts in course of time. It was also mentioned that those who
had been appointed as Trade Tax Officers, Grade II, pursuant to the requisition
sent on 11.10.1982 would be senior to the 143 candidates whose select list had
been made available by the Public Service Commission in September, 1986.
10.
The two decisions taken by the Government on 11.12.86 and 23.12.86 were
challenged by one Brijendra Bahadur Singh by way of Writ Petition No.456 of 1987.
On 5.2.1987, while issuing notice on the said writ petition, the High Court
also passed an interim order to the effect that it would be open to the
respondents to make ad hoc appointments in the vacant posts of Sales Tax
Officer, Grade II, but no permanent appointment was to be made in respect of
2/3rd of the total number of vacancies which were meant to be filled up
directly through the Public Service Commission under the U.P. Sales Tax
Officers Rules, 1977.
11.
Consequent to the above, the State Government directed the Commissioner, Trade
Tax, to include a condition in the appointment orders to be issued to the
persons selected through the Limited Departmental Examination that in view of
the aforesaid order of the High Court the appointment was being made on an ad
hoc basis and would be subject to the result of Writ Petition No.456 of 1986.
On 19.2.1987 a similar interim order was passed by the High Court in the Writ
Petition filed by Jai Singh. Pursuant to the above direction, the persons who
were selected through the Limited Departmental Examination were given
appointment on 28.6.1987 and their appointment orders contained the condition
that their appointment was ad hoc and would be subject to the result of the
writ petitions pending before the High Court.
12. In
1990, one Mohd. Zaki Khan and some others filed a Writ Petition challenging the
Government Order dated 11.12.1986 withdrawing the 97 posts from the purview of
the Public Service Commission. The said writ petitioners were candidates who
had appeared in the written examination conducted by the Public Service
Commission pursuant to the advertisement published in 1985, but had failed to
pass the examination. The case of the writ petitioners in the said writ
petition was that while making a requisition for 33 posts, if 97 posts for
which the Limited Departmental Examination was held had been included in the
requisition, they too would have been selected. It was also their case that
since the 97 posts had been filled up only on an ad hoc basis from the
departmental candidates, they would continue to be available in 1988 when fresh
examinations were held by the Public Service Commission. A prayer was
accordingly made for a Mandamus to be issued to the Public Service Commission
to fill up the said 97 posts also by regular candidates and since the Public
Service Commission was, in any event, conducting the U.P. Subordinate Service
Examination, the select list could be expanded to include recommendations for
the 97 posts which had been filled up by the department on ad hoc/temporary
basis.
13.
The writ petition of Mohd. Zaki Khan and others was decided against the writ
petitioners on the basis of the detailed correspondence between the
Commissioner of Trade Tax and the Department, and between the Department and
the Public Service Commission. The High Court ultimately came to the conclusion
that the Government had valid and cogent reasons for taking out the 97 posts
from the purview of the Public Service Commission. It was also held that since
the matter had been decided by the Cabinet the Governor was bound to accept
such advice. It was also held that since the said posts had been validly taken
out from the purview of the Public Service Commission it was not open to the
court to issue a Mandamus to the Public Service Commission to fill up the said
posts which had gone out of the domain of the said Commission.
14.
The said decision in the writ petition filed by Mohd. Zaki was delivered on
19.5.1996. A Special Leave Petition filed against the said decision was dismissed
in limine by this Court on 19.9.1996.
15. After
the decision in Mohd. Zakis case, the writ petition filed by the Brijender
Bahadur Singh was also dismissed on 3.10.1996 on the basis of the decision in Mohd.
Zaki Khans writ petition.
16. In
the meantime, the Commissioner, Trade Tax mooted a proposal on 28.10.1995 to regularise
the services of the officers who had been appointed pursuant to the Limited
Departmental Examination held in 1986-87, by amending Rule 5(1) of the Service
Rules of 1983 and urged the Government to effect such amendment expeditiously.
17.
The said letter of 28.10.1995 written by the Commissioner, Trade Tax, was
challenged by one Ram Lal and others by way of writ petition No.1041/1996
whereby the direct recruits selected pursuant to the 1985 requisition sought
seniority over the officers appointed on the basis of the Limited Departmental
Examination conducted in 1987.
18.
The ground of challenge was that the appointment of those candidates who had
been appointed pursuant to the Limited Departmental Examination was de hors the
rules and had not been approved by the Public Service Commission.
19.
Pursuant to the request of the Commissioner, Trade Tax, for regularisation of
the ad hoc appointments made through the Limited Departmental Examination, the
Government effected the Third Amendment to the 1983 Rules whereby the
definition of 19;substantive appointment20; was amended to include
appointments made in 1987 through the Limited Departmental Examination.
20.
The aforesaid amendment of 1997 was challenged in writ petition No.1297 of 1997
by one Vinod Kumar Gupta on the ground that the amendment sought to
retrospectively amend the Rules of 1983 for the purpose of regularising those
candidates who had been appointed in 1987 through the Limited Departmental
Examination.
21.
Two other officers, Shri Govardhan Lal and Shri Arvind Kumar Tiwari, who had
been directly recruited pursuant to the result of the examination conducted by
the U.P.Public Service Commission in 1990 and appointed in 1994 and 1993
respectively, filed Writ Petition No.1863 of 1998, challenging the Government
Order dated 5.6.1998 directing the Commissioner, Trade Tax, to prepare a
gradation list of officers of the 1985 batch who had been directly recruited
and appointed in 1990 and the 1987 batch who had been appointed through the
Limited Departmental Examination. The direct recruits who had been appointed in
1990 claimed seniority over those who had been appointed in 1987 by the Limited
Departmental Examination on the ground that the 1987 appointees had been
appointed on an ad hoc basis and their officiating service could not be counted
towards seniority.
22.
The State Government passed an order on 22.9.2000 directing that the seniority
list of those candidates, who had either been appointed directly or on the
basis of the Limited Departmental Examination, would be deemed to be undisputed
up to 1985 in order to enable promotions to be made therefrom. The
Commissioner, Trade Tax, thereafter passed an order to include the candidates
of the 1985 direct recruits batch, who had been appointed in 1990, in the
seniority list and though the order was passed on 9.10.2000 the same did not
include the names of the appointees who had been appointed in 1987 on the basis
of the Limited Departmental Examination.
23.
Two writ petitions, namely, Writ Petition No.1778/2000 and Writ Petition
No.2000/2000 were filed at Lucknow by Jugal
Kishore Pandey and Rajendra Prasad, who had both been appointed in 1987.
Another writ petition was filed by Ashok Kumar Shrivastava at Allahabad in
which an interim order was passed staying the operation of the Government Order
dated 22.9.2000 and 9.10.2000. In the meanwhile, pursuant to an application
made under Clause 14 of the Amalgamation Order this Court transferred Writ
Petition No.2787/2001 filed in Allahabad to Lucknow with a request to the Chief
Justice of Allahabad High Court to constitute a Special Bench to hear all the
writ petitions at an early date, and, if possible on a day to day basis. The
matters then came up before the Division Bench of the Lucknow Bench of the Allahabad
High Court for final disposal.
24.
During the pendency of the writ petitions, the State Government passed orders regularising
the services of the candidates who had been appointed in 1987 pursuant to the
Limited Departmental Examination with effect from 25.9.1997. The State
Government also informed the Commissioner, Trade Tax, U.P., Lucknow, on
9.5.2005 that the date of substantial appointment of the persons selected
through the Limited Departmental Examination was 25.9.1997.
25.
Accepting the submissions made on behalf of the candidates who had been
selected pursuant to the advertisement published in 1985 and thereafter in 1990
for direct recruitment to the post of Trade Tax officer, Grade II, the High
Court also came to the conclusion that the appointments made in 1987 on the
basis of the Limited Departmental Examination were ad hoc in nature and
consequently such candidates could claim seniority in the cadre only from 25.9.1997
when their services stood regularised.
Accordingly,
even though the candidates of the 1985 batch were appointed after the 1987
candidates, the High Court directed that they along with the candidates of
1990, who had been selected by the regular selection process as contemplated
under the Rules, be placed above the 1987 appointees as their appointment stood
regularised only with effect from 25.9.1997, when the Third Amendment to the
Service Rules was effected. It is the aforesaid decision of the High Court in
the said 8 writ petitions which is the subject matter of the three appeals
being heard by us.
26.
Appearing for the appellants in C.A.Nos.4968 and 4969 of 2007, filed by the
officers who had been appointed pursuant to the Limited Departmental Examination
held in 1987, Mr. M.N. Rao, learned Senior Advocate, submitted that the
controversy forming the subject matter of the appeals involve the validity of
the amendments made to the U.P. Trade Tax Officers, Grade II, Service Rules,
1983, (hereinafter referred to as 19;1983 Service Rules) in 1987, as
also the seniority given to those officers who had been recruited pursuant to
the Limited Departmental Examination held in 1987. Mr. Rao further contended
that the appellants in Civil Appeal No. 4970/2007 were those direct recruits
who had been appointed by the U.P. Public Service Commission in 1991 and 1994.
27.
According to Mr. Rao, the aforesaid 1983 Rules contemplated recruitment to the
post of Trade Tax Officer, Grade II, through two methods.
Rule 5
of the Rules provides that 75% of the said officers are to be appointed through
the Public Service Commission by way of direct recruitment and upon holding a
competitive examination, whereas the remaining 25% are to be appointed by
promotion after consultation with the Public Service Commission. However, in
1979, the State Government was facing an acute shortage of Trade Tax Officers,
Grade II, which was seriously hampering the revenue collection, and this
resulted in the withdrawal of 97 vacant posts of Trade Tax Officers, Grade II,
from the purview of the Public Service Commission with the object of filling up
the same by a Limited Departmental Examination
28.
Mr. Rao also referred to the writ petition of Mohd. Zaki Khan and submitted
that while dismissing the writ petition the High Court held that the State
Government was fully empowered to withdraw the 97 posts from the control of the
Public Service Commission. Mr. Rao submitted that the High Court had also held
that once the 97 posts had been taken out of the purview of the Public Service
Commission the State Government was free to fill up those posts after laying
down norms consistent with the constitutional provisions and other related
laws.
29.
Mr. Rao submitted that the disputes concerning the appointment of the 1987
appointees through the Limited Departmental Examination had been set at rest by
the High Court in Zaki Khans case and with the dismissal of the special
leave petition (SLP (C) No.18183/96) preferred against the said judgment of the
Allahabad High Court on 19.9.1996, the finding with regard to the validity of
the withdrawal of the said 97 posts of Trade Tax Officers, Grade II, attained
finality and could not be reopened.
30.
Mr. Rao referred to the writ petition filed by Brijender Bahadur Singh and
others and the interim order passed therein on 5.2.1987. He also referred to
the writ petition filed by Jai Singh and others, wherein also an interim order
was passed on 19.2.1987. Mr. Rao urged that the effect of the interim orders
was that the State Government was free to make appointments from the candidates
selected through the Limited Departmental Examination, but such appointments
were to be treated as ad hoc. As a result, in the appointment letters issued to
the appointees of 1987, it was mentioned that the appointments were ad
hoc. Mr. Rao, submitted that this was the stand taken by the State
Government in the counter-affidavit filed on behalf of the State in the said
two writ petitions, which were subsequently dismissed on 3.10.1996 and 6.5.1994,
respectively.
31. It
was then urged that in 1997 the State Government amended the 1983 Service Rules
and such amendments included amendment to Rule 3(j) and 3(l). By virtue of the
said amendments the definition of the term 19;member of the service20;, mentioned
in the judgment herein, was widened to include those who had been appointed on
the basis of the Limited Departmental Examination. A proviso was also added to
the existing definition of 19;substantive appointment20; indicating that
persons appointed on ad hoc basis in the year 1986-87 through the Limited
Departmental Examination from Group C posts would be deemed to have
been substantively appointed. It was further urged that although it was never
the intention of the State Government to appoint those selected on the basis of
the Limited Departmental Examination on an ad hoc basis, the said expression
had been included in the appointment letters issued to such appointees in view
of the interim orders which had been passed by the High Court in the writ
petitions filed by Brijendra Singh and Jai Singh, which were subsequently
dismissed. Mr. Rao submitted that it had always been the intention of the State
Government to treat the appointments of the said candidates to be substantive.
It was only later that the State Government changed its stand and contended
that the 1987 appointees had been substantively appointed only in 1997 from the
date of amendment of the Rules.
32.
The change in the stand of the State Government was thereafter challenged by Muneshwar
Babu and others, who were 1987 appointees, in writ petition No.166/05 before
the Allahabad High Court. They are some of the appellants in Civil Appeal
No.4969 /2007.
33.
Mr. Rao submitted that the direct recruits, who had been appointed pursuant to
the advertisements published in 1985 and 1990, long after the 1987 appointees
had been appointed by way of a Limited Departmental Examination, had no locus standi
to question the seniority of the 1987 appointees since at that time they had
not even been born in the cadre. Mr. Rao contended that once the question
involving the exclusion of the 97 posts from the purview of the Public Service
Commission had been finally decided in Zaki Khans case, the direct
recruits who had been subsequently appointed through the Public Service
Commission had no right to challenge the seniority of the 1987 appointees or to
canvas a claim that the said 97 posts should be thrown open to the candidates
who had appeared at the examination conducted by the Public Service Commission in
1988 pursuant to the advertisement published in 1985. It was submitted that the
same would also apply to the direct recruits appointed pursuant to the
publication of a similar advertisement in 1990. Mr. Rao submitted further that
since the 1987 appointees had not encroached on any post earmarked for the
direct recruits, the said direct recruits could have no valid grievance against
the exclusion of certain posts from the purview of the Public Service
Commission.
34.
Mr. Rao urged that the High Court had erred in coming to a finding that the
appointment given to the 1987 appointees was in violation of the procedure laid
down in the Rules, and was discriminatory for open market and senior
departmental candidates. It was also urged that the High Court had erroneously
accepted the contention of the direct recruits that the 1987 appointees had
been appointed de hors the rules, and, consequently, the amendment effected to
the Rules in 1997 could only operate prospectively.
35.
Mr. Rao submitted that the Division Bench of the High Court had erred in taking
the view that the appointment of the 1987 appointees was in violation of Rule 5
and the recruitment procedure contemplated in the Rules. He submitted that once
the posts had been taken out of the purview of the Public Service Commission,
Rule 5 of the Service Rules, which prescribes the manner of recruitment through
the Public Service Commission, was no longer applicable to such posts and the
procedure contemplated thereunder for recruitment to the post of Trade Tax
Officer, Grade II, and the Government was free to prescribe the procedure to be
followed for the purpose of filling up the said posts. Mr. Rao urged that the
1983 Service Rules did not prescribe any method for recruitment to posts which
were taken out from the purview of the Public Service Commission and, in fact,
the definition of 19;substantive appointment20; in the unamended Rule 3 (l)
takes care of such a contingency by providing that if there are no rules
prescribed for such recruitment then the procedure as prescribed by executive
instructions would be valid and persons appointed through such a procedure
would be considered to have been substantively appointed. Mr. Rao submitted
that since in the Service Rules of 1983 no such procedure has been prescribed
for recruitment of posts excluded from the purview of the Public Service
Commission, the State Government had issued executive instructions for the
purpose of filling up the posts in question and since the procedure adopted for
filling up the said 97 posts had been duly laid down by the State Government,
the finding of the High Court that the method prescribed was de hors the
Service Rules was not tenable.
36. It
was lastly contended by Mr. Rao that the judgment of the High Court had
proceeded on the incorrect proposition that the appointment of the 1987
appointees by the Limited Departmental Examination was ad hoc and fortuitous.
Mr. Rao submitted that the High Court had wrongly referred to the 1987
appointees as 19;promotees20; when, in fact, they were direct recruits of
the year 1987 who had been inducted in the cadre of Trade Tax Officer, Grade
II, by means of a Limited Departmental Examination in respect of the posts
which had been taken out of the purview of the Public Service Commission.
37.
Mr. Rao submitted that the intention of the State Government not to treat the
1987 appointees as having been appointed on an ad hoc basis would be evident
from the fact that soon after the High Court dismissed the writ petition of Brijender
Bahadur Singh, the State Government effected an amendment in Rule 3(j) and 3(l)
of the Service Rules, with the intention of putting the controversy beyond the
pale of challenge. Mr.Rao referred to the proviso to Rule 3(l), as amended in
1997, which provides that those officers who had been appointed pursuant to the
Limited Departmental Examination held in 1987 would be deemed to have been
substantively appointed. The High Court, according to Mr. Rao, had committed an
error in holding, while interpreting the amended Rules, that the 1987
appointees were promotees and formed a different group.
38. In
support of his aforesaid submission Mr. Rao referred to and relied upon the
decision of this Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v.
Subbash Chandra Yograj Sinha (1962 (2) SCR 159) wherein, while interpreting a
deeming fiction incorporated in the proviso, this Court held that the same had
to be given full effect. Mr. Rao also referred to a Constitution Bench decision
of this Court in State of Tamil Nadu v. Arooran Sagars Limited (1997 (1) SCC
326) where the scope of a deeming provision had been explained. Mr. Rao
submitted that the amendment in question being remedial in nature, the same had
to be given retrospective effect to correct the prejudice caused earlier, unless
of course a specific date was indicated from which the amended provisions would
come into force.
39. On
the submissions made by learned counsel for the Public Service Commission that
temporary or officiating appointments could be made as per Rule 18(4) of the
1983 Rules, Mr. Rao submitted that such a stand was not tenable on account of
the fact that the posts covered by Rule 18(4) were within the purview of the
Public Service Commission and Regulation 5(a) of the U.P. Public Service
Commission (Limitation of Function) Regulations, 1954, would apply.
40.
Concluding on the decision of the High Court in Zaki Khans case, Mr. Rao
submitted that in State of U.P. V. Manbodhanlal Srivastava (AIR 1957 SC 912),
it had been held that Article 320 (3) of the Constitution is directory in
nature and consultation with the Public Service Commission does not mean
concurrence with the said Commission and the State Government, in view of
Regulation 3 of the 1954 Regulations, which fully empowered the State
Government to take out 97 posts from the purview of the Public Service
Commission. Mr. Rao submitted that it was not open to the later Division Bench
of the High Court to take a contrary view.
41.
Mr. Rao submitted that the judgment of the High Court impugned in these Civil
Appeal Nos. 4968-4969 of 2007 preferred by those officers who had been
appointed on the basis of the Limited Departmental Examination held in 1987,
was liable to be set aside.
42.
Mr. Raos submissions in support of Civil Appeal Nos.4968-69 of2007 were
strongly opposed by Mr. Gaurab Banerji, learned Senior Advocate appearing for
the direct recruits of the 1985 and the 1990 batches, who have been made
respondent Nos.1 to 6 in the said appeals. Mr. Banerji submitted that it was
the case of the said respondents that persons who had been appointed on the
basis of the Limited Departmental Examination were not substantively appointed
and their appointment was of an ad hoc and/or temporary nature and de hors the
Service Rules.
It was
also submitted that consequently their services could be counted for the
purpose of seniority only from the date of regularisation of their services in
1997.
43.
Mr. Banerji urged that the issues which had arisen for determination in these
appeals revolved around the question as to whether the appointments made in
1987 on the basis of the Limited Departmental Examination held in 1987 were
substantive or were ad hoc/temporary in nature and contrary to the rules, in
the light of Articles 14 and 16 of the Constitution.
Referring
to the case made out in the writ petition filed by Muneshwar Babu & others,
Mr. Banerji contended that the limited issue for determination in Zaki
Khans case was whether the State Government had the power to withdraw
certain posts from the purview of the Public Service Commission. He added that
the petitioners in Zaki Khans case were unsuccessful candidates who had
appeared for the Public Service Commission examination held in 1988. Mr. Banerji
submitted that the Public Service Commission had not filed any counter
affidavit in Zaki Khans case to bring into focus the stand of the Public
Service Commission. Mr. Banerji urged that the Cabinet decision, on which
reliance had been placed by the High Court, had gone uncontroverted. Mr. Banerji
also urged that in Zaki Khans case the High Court had specifically held
that the method of appointment to the 97 posts, which were withdrawn from the
purview of the Public Service Commission had not been challenged in the Writ
Petition, and, consequently, the validity of the appointments made in respect
of the said posts remained untouched.
44.
Mr. Banerji submitted that the Court had also held that the writ petitioners
had not acquired any right on the strength of having appeared at the interview
when ultimately they were unsuccessful in their endeavour to be appointed as
Trade Tax Officers, Grade II.
45.
Mr. Banerji contended that the mode and manner of appointment of the 1987
appointees was not in issue in Zaki Khans case and the High Court had
wrongly relied on the decision rendered therein while deciding the several writ
petitions out of which these three appeals arise.
46.
Mr. Banerji reiterated that the Limited Departmental Examination was in
violation of Rule 5(1) and Rule 15 of the Rules and those appointed on the
basis thereof could not be said to have been substantively appointed as per
Rules 3(j) and 3(l). He also submitted that the instructions contained in the
letters dated 11.12.1986 and 23.12.1986, on the basis whereof the Limited
Departmental Examination was conducted, could at best be treated as executive
instructions which could not go beyond or be contrary to Article 309 of the
Constitution. Mr. Banerji submitted that even in the letter dated 23.12.1986
the posts in question had been shown as temporary posts in the direct recruits
quota.
Reference
was also made to the appointment letter issued to Muneshwar Babu on 20.6.87
which included the condition that the concerned employee could be removed to
his parent post. It was submitted that the said condition made it clear that
the appointments made on the basis of the Limited Departmental Examination were
all of a stop-gap and/or temporary nature.
47.
Mr. Banerji urged that the appointments made on the basis of the Limited
Departmental Examination was contrary to the 1983 Rules and was only an ad hoc
arrangement to meet the demands of the Department pending the recommendations
from the Public Service Commission of regular candidates to fill up the
vacancies in respect of which such ad hoc arrangements had been made.
48.
Mr. Banerji also referred to writ petition No.1041 of 1996 filed by the direct
recruits of the 1985 batch, wherein the letter of the Commissioner of Trade Tax
dated 28.10.1995 seeking regularisation of the appointees of 1987 by amendment
of Rule 5 of the 1983 Rules had been challenged. Mr. Banerji submitted that in
the said writ petition an interim order had been passed on 26.9.1996
categorically directing that the appointees under the Limited Departmental
Examination held in 1987 would not be assigned seniority over and above the
writ petitioners who had been regularly appointed in accordance with the rules
in 1991.
49.
Mr. Banerji submitted that the amendment had been effected on 26.9.97 and if
the same was to be given retrospective effect it would be contrary to the order
passed on 26.9.96 in which it had not been stipulated that the rule was to be
given retrospective effect. Mr. Banerji submitted that it could only be given
prospective effect from the date on which it was made effective.
50.
Relying on various decisions of this Court namely
i) Shitala
Prasad Shukla v. State of U.P. (AIR 1986
SC 1859);
ii) K.
Madalai Muthu vs. State of Tamil Nadu
(2006)6 SCC 558); and
iii)
M.P. State Coop. Bank V. Nanuram Yadav (2007 (11) SCALE 439),
Mr. Banerji
urged that seniority could be counted only from the date on which a temporary
post was regularised and since in the instant case the appointment of the
candidates selected by the Limited Departmental Examination was regularised
only in 1997, they could claim seniority only thereafter and not with
retrospective effect. He also submitted that as had been held in K. Narayanan
v. State of Karnataka (1994) Supp. (1) SCC 44, Rules operate prospectively and
that retrospectivity is an exception. Even where the statute permitted framing
of Rules with retrospective effect the exercise of power under such provision
could not be exercised in violation of any constitutional right so as to affect
a vested right.
51.
Mr. Banerji submitted that the submission advanced by him on behalf of the
respondents in C.A.Nos.4969-70/2007, apply equally to the case of the
appellant, Govardhan Lal, in C.A.No.4970/2007, since the appellant in the said
appeal was similarly placed as the respondents in the other two appeals.
52.
Mr. R. Venkataramani, Learned Senior Advocate, who appeared for the private
respondents in C.A. No. 4970 of 2007, generally adopted the submissions made by
Mr. Rao. He, however, added that once the issue relating to the appointment of
the 1987 appointees on the basis of the Limited Departmental Examination stood
concluded in Zaki Khans case, the High Court erred in re-opening the same.
He urged that after the exclusion of the Public Service Commission from the
appointment of the 1987 appointees, there was no further occasion for the High
Court to once again enquire into the process of appointment of the said
candidates as it amounted to reviewing the judgment rendered in Zaki Khans
case. Mr. Venkataramani submitted that the expression 19;substantive appointment20;
as defined in clause 3(c) of the 1983 Service Rules provides for appointment in
terms of executive instructions when no Rules are available to deal with a
situation such as the one in the instant case. Learned counsel referred to Rule
3(1) of the aforesaid Rules which reads as follows:- 19; Rule 3(1) Substantive
appointment means an appointment, not being an ad hoc appointment, on a post in
the Cadre of the service made after selection in accordance with the rules and
if there are no rules in accordance with the procedure prescribed for the time
being by executive instructions issued by the Government.20;
53. It
was urged that the aforesaid Rule clearly indicates that where the Rules did
not provide for appointment in certain contingencies, the vacuum could be
filled up by executive instructions, as had been done in the instant case. Mr. Venkataramani
submitted that once the 1987 appointees had been deemed to have been
substantively appointed, which, in fact, was the stand initially taken by the
State Government, a fresh enquiry into the matter was not permissible. It was
also urged that even if the initial appointment of the 1987 appointees had not
been made by following the procedure laid down by the Rules but the appointees
continued in the post uninterruptedly till their services were regularised, the
period of officiating service would be counted for the purpose of seniority, as
had been held by a Constitution Bench of this Court in Direct Recruit Class-II
Engineering Anr. (1990 (2) SCC 715. This Court had held that for the purposes
of seniority, where 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 would be counted.
54.
The stand of the State of Uttar Pradesh was placed by Mr. Shail Kumar Dwivedi,
learned Additional Advocate General. He submitted that while admittedly 97
posts had been taken out by the State Government from the purview of the U.P.
Public
Service Commission, before the appointment letters to the selected candidates
could be issued, one Brijendra Bahadur Singh filed Writ Petition No. 456 of
1987 before the Allahabad High Court in which the following interim order was
passed on 5th February, 1987, namely :- 19;Issue notice. It will be open to
the respondents to make ad hoc appointments on the vacant posts of Sales Tax
Officers Grade-II but no permanent appointment shall be made on 2/rd of the
total number of vacancies of Sales Tax Officer which meant to be filled up
directly through Public Service Commission under the U.P. Sales Tax Officers
Rules, 1977.20;
55. It
was submitted that having regard to the above interim order of 1987, candidates
selected on the basis of the Limited Departmental Examination, were appointed
on 20th June, 1987 on an ad hoc basis. Mr. Dwivedi submitted that the interim
order passed on 5th February, 1987 in the Writ Petition of Brijendra Bahadur
Singh was never challenged, though ultimately the said Writ Petition was
dismissed on 3rd October, 1996. It was also contended that the 1987 ad hoc
appointees from the departmental candidates had never filed any writ petition
for regularisation of their services.
56. It
was then submitted that respondent nos. 1 to 6 in the instant appeal and some
other direct recruits had filed Writ Petition No. 1041 of 1996 before the Allahabad
High Court praying for an order not to regularise the services of the 1987 ad
hoc appointees and on 26th September, 1996, whrein an interim order was passed
in their favour in the following terms :- 19;Three weeks time is allowed to
the standing counsel to seek necessary instructions. List thereafter. In the
meantime in the case opposite parties 3 to 99 are regularised, they shall not
be assigned seniority over and above the petitioners who according to the
petitioners case were regularly appointed in accordance with the rules in
the year 1991.20;
57. It
was submitted that the interim order continued till the passing of the impugned
judgment dated 20th September, 2006. Mr. Dwivedi submitted that the said
interim order had also not been challenged by the appointees of the 1987 batch
and the said position continued for about 10 years. It was only by way of
Notification dated 25th September, 1997 that the State of Uttar Pradesh amended
the 1983 Service Rules whereupon the appointment of the appointees of the 1987
batch were regularised.
58.
Mr. Dwivedi also relied on the Direct Recruits case (supra) wherein it had
also been held that once an incumbent is appointed to a post according to the
rules, his seniority has to be counted from the date of his appointment and not
from the date of confirmation. In other words, according to Mr. Dwivedi, where
an appointment is made as a stop gap arrangement, the officiation in such post
could not be taken into account for consideration of seniority.
59.
Reference was also made to the case of Shitala Prasad Shukla (supra), wherein
it had been held that an employee must belong to the same stream before he can
claim seniority over others.
60.
Mr. Dwivedi concluded on the note that having regard to the aforesaid decision,
the appointees of the 1987 batch could not for the purpose of seniority in the
cadre, claim the benefit of their service from the time of their initial
appointment till they were regularised in 1997.
61.
Although, extensive arguments have been advanced on behalf of the various
parties, the controversy involved in these appeals is broadly limited to three
questions, namely :
i) Was
the State Government entitled to withdraw from the purview of the U.P. Public
Service Commission posts which were to be filled up by direct recruitment ?
ii)
Would the 97 posts which were taken out from the purview of the U.P. Public
Service Commission continue to be governed by the recruitment process for
direct recruits as contained in the Uttar Pradesh (Sales Tax Officers Grade II)
Service Rules, 1983 ? ; and
iii)
Whether having regard to the condition contained in their appointment letters
that their appointments were being made on purely ad hoc basis the appointees
to the said posts could claim seniority on the basis of the service rendered by
them from 1987 to 25.9.1997 when pursuant to an amendment of the Service Rules
their services were regularised ?
62.
The first two questions were raised and decided in Mohd. Zaki Khans case.
After discussing the circumstances which led to the decision of the State
Government to withdraw the 97 posts from the purview of the U.P. Public Service
Commission, the High Court observed that the question for consideration in the
said case was whether the State Government was empowered to take out the said
97 posts from the purview of the Commission and to fill up the same through a
Limited Departmental Examination.
63.
After considering the proviso to clause (3) of Article 320 of the Constitution
and the 1983 Rules framed thereunder, the High Court held that from the second
part of clause (b) of Regulation (3), it was amply clear that the Governor
after consultation with the Commission could direct that the service or post in
question would be outside the purview of the Commission. It was also observed
that the Cabinet had taken the decision to take out the 97 posts from the
purview of the Commission which was communicated to the Commissioner of Sales
Tax by letters dated 11.12.1986 and 17.12.1986. Further, considering the effect
of Article 163 of the Constitution, the High Court had also held that the
Governor was required to act on the aid and advice of the Council of Ministers
headed by the Chief Minister and that the decision of the Cabinet had to be
accepted by the Governor. The High Court ultimately held that the said 97 posts
of Trade Tax Officer, Grade II, had been taken out from the purview of the Commission
by the State Government on the basis of the decision of the Cabinet and that
though the Commission did not concur with the decision of the Cabinet, the
State Government fulfilled its obligation of consulting the Commission on the
issue before taking a decision in the matter.
64.
The other question which came up for consideration before the High Court in Zaki
Khans case was the contention raised by the respondents in the first two
appeals also that since the appointments in the 97 posts were of an ad hoc
nature, such appointments could last only till the regularly-selected
candidates became available from the Commission. The said contention was also negatived
by the High Court upon holding that since the 97 posts had been taken out from
the purview of the Public Service Commission, the State Government was free to
fill up the said posts after laying down norms consistent with the
constitutional provisions and other laws. While considering the case of the
writ petitioners in the said writ petition, the High Court also held that
simply because the writ petitioners in the said case had appeared in the
interview test held for the combined Upper Subordinate Examination 1985-86,
they did not acquire any right to be selected on the ground that more vacancies
existed at the time of the examination or at the time of the advertisement.
65. It
is, therefore, apparent that the validity of the State action in withdrawing 97
posts from the purview of the U.P. Public Service Commission had been answered
in the affirmative in Zaki Khans case and the right of the State
Government to fill up the said posts in accordance with the norms laid down by
it had also been approved.
Since
the special leave petition which was filed against the said decision of the
High Court was dismissed, the findings of the High Court in Zaki Khans
case became final and were not capable of being questioned in similar
proceedings either before the High Court or this Court.
66.
The submissions made on behalf of the appellants in Civil Appeal Nos. 4968-69
of 2007, in this regard have, therefore, to be accepted.
67. It
is clear that the proviso to clause (3) of Article 320 of the Constitution
empowers the Governor of a State to withdraw from the purview of the Public
Service Commission services and posts in connection with the affairs of a State
and to make regulations in support thereof.
68. In
the instant case, as has been indicated in detail by the High Court, the State
Government took the step to withdraw 97 posts from the purview of the Public
Service Commission after the said Commission expressed its inability to fill up
the vacancies within a short span of time because of the various reasons
indicated by it, such as shortage of staff and the mal-functioning of obsolete
machinery and equipment. It is in such circumstances and also on account of the
fact that the collection of revenue was being seriously hampered, that the
State Government in its Cabinet ultimately took the decision to withdraw the 97
posts from the purview of the Public Service Commission and to have them filled
up on the basis of a Limited Departmental Examination. Even after concluding
its judgment, the High Court spent some time in scrutinising the laches on the
part of the Commission in providing candidates to fill up the vacancies in the
Sales Tax/Trade Tax department. There is no getting away from the fact that
posts which were vacant in 1984 were advertised by the Commission in 1985 and
the selection tests were held only in 1988 pursuant to which recommendations
were made in 1990. The process of providing candidates for the vacancies which
occurred in 1984 or even before that could not be filled up by the Commission
for whatever reason before the passage of seven years.
69. As
far as the second question is concerned, we are unable to accept the view of
the High Court that although the 97 posts had been taken out of the purview of
the Public Service Commission, the recruitment to the said posts would continue
to be governed by the 1983 Rules, and, consequently, the appointment of the
candidates to fill up the said 97 posts by a Limited Departmental Examination
could only be an ad hoc arrangement to tide over the period within which
regular candidates could be recommended by the Public Service Commission.
70.
Though the said approach appears at the first instance to be correct, on a
closer scrutiny the situation appears to be different. The very fact that the
97 posts were taken out of the purview of the Public Service Commission
indicates that the recruitment in respect thereof was not required to be in
conformity with the recruitment rules followed by the said Commission but in
accordance with the norms and regulations as might be prescribed by the State
Government in that behalf. In the present case, a decision was taken at the
Cabinet level to fill up the said 97 posts by a Limited Departmental
Examination.
There
was, therefore, no foundation for the submission that appointment to the 97
posts were only meant to fill up a temporary need and was not intended to be
substantive in nature. It is no doubt true that in the appointment letters
issued to the departmental candidates who had been selected, it was indicated
that such appointments were purely of an ad hoc nature, but such a condition
came to be inserted in the appointment letters on account of an interim order
passed by the High Court in the writ petition No.456/1987 filed by one Brijendra
Bahadur Singh on 5.2.1987. By the said order the High Court indicated that it
would be open to the respondents to make appointments in the vacant posts of
Sales Tax Officers Gr. II, but no permanent appointment was to be made on 2/3rd
of the total number of vacancies which were meant to be filled up directly
through the Public Service Commission under the U.P Sales Tax Officers Rules,
1977. Further, as will be evident from the stand initially taken by the State
Government, appointments in the 97 posts were intended to be substantive in
nature and the condition relating to the ad hoc nature of the appointments was
included in the appointment letters of the candidates who had been appointed
for filling up the said vacancies only on account of the interim order passed
in Brijendra Bahadur Singhs case. Of course, such stand was subsequently
altered by the State Government, but it is clear that the change in stance came
after a decision was taken to amend Rule 3 of the 1983 Rules to regularise the
services of the 1987 appointees on 25.9.97, the date on which the third
amendment in the Service Rules was notified.
71.
The said issue has also been considered in detail in Mohd. Zaki Khans case
and the shifting stand of the State Government has been extensively dealt with
as indicated hereinbefore.
In Mohd.
Zaki Khans case the High Court after considering the provisions of clause
(3) of Article 320 of the Constitution came to the finding that once the
decision had been taken by the State Government to withdraw the 97 posts from
the purview of the Public Service Commission, it was open to the State
Government to fill up the said vacancies by formulating its own norms which
were within the constitutional requirements.
72. We
agree with the view expressed in Zaki Khans case that once the power of
the State Government to withdraw certain posts from the purview of the Public
Service Commission in certain exigencies is accepted, it would naturally follow
that the Rules of recruitment as applicable to the Commission would not apply
in respect of the said 97 posts and the same could be filled up by the State
Government in keeping with its prescribed norms. It is well- established that
in the absence of specific rules for recruitment, guidelines framed by the
Executive authorities and directions given from time to time in aid thereof
would be applicable to such recruitment. The second question, therefore, is
also answered in the affirmative.
73.
This brings us to the last and in our view the most important question to be
answered in these appeals, as to whether having regard to the terms and
conditions contained in their appointment letters, the 1987 appointees could
claim the benefit of the service rendered by them between 1987 and 1997 for
purposes of computing their seniority.
74. It
has already been indicated hereinabove as to how the Public Service Commission
delayed in making recommendations for filling up the vacancies in the Trade Tax
Department and the inability expressed by it to make recommendations quickly to
fill up the vacancies that were gradually increasing. It is only thereafter
that the Commissioner of Sales Tax took up the matter of taking out the 97
posts from the purview of the Public Service Commission. The matter was taken
up by the Chief Secretary with the Public Service Commission requesting its
concurrence to the Departments suggestion of holding a Limited
Departmental Examination to fill up the vacancies in order to prevent loss of
revenue and to ensure smooth working of the Department. The Commissioner, in
his turn, sent the detailed outline of the Limited Departmental Examination
proposed to be held to the Special Secretary (Finance) by his letter dated
12.8.1986. The same was followed by the sanction given by the Cabinet to
withdraw the 97 posts and to fill them up by a Limited Departmental
Examination.
Although,
initially the number of posts had not been specified, by its letter dated
17.12.1986 the Government informed the Commissioner that the Cabinet decision
was in relation to the 97 posts which had been withdrawn from the purview of
the Public Service Commission.
75. In
taking the aforesaid decision, the State Government had apparently chosen to
act in terms of the proviso to clause (3) of Article 320 of the Constitution
which also empowered the State Government to specify either generally or in any
particular class of case that it would not be necessary to have any consultation
with the Public Service Commission. Having once exercised such powers and
having withdrawn the 97 posts in question from the purview of the Public
Service Commission, the Government was also free to take steps for recruitment
in the said posts and to prescribe guidelines for such recruitment.
Apparently,
in the absence of Rules for such a contingency, the High Court took an
erroneous view in holding that even though the posts in question had been taken
out of the purview of the Public Service Commission the appointments made
therein would be subject to the 1983 Service Rules relating to recruitments, as
they were of a purely ad hoc nature. Consequently, till such time as the
services of the said appointees were regularised they could not be said to be
part of the cadre and only after their services were regularised in 1997 could
they be treated to be part of the cadre of Trade Officers for the purpose of
computing their seniority.
76. We
are aware that it is a well-established principle of law that till such time as
an employee is born on the cadre he cannot have any claim to seniority over
others who are already in the cadre. The High Court has proceeded on the basis
that the recruits by way of Limited Departmental Examination may have been
appointed in 1987 before the direct recruits but the direct recruits were
appointed in the cadre long prior to the regularisation of the services of the
1987 appointees which was initially ad hoc in nature.
According
to the High Court, since the regular appointment of the direct recruits of 1985
and 1990 were confirmed prior to the regularisation of the services of the 1987
appointees in 1997, they would be senior to the 1987 appointees.
77. In
our view, although the stand of the High Court is legalistically correct, we
will have to pierce the veil in order to ascertain the true intention of the
Government while making the appointments for the 97 posts by a Limited
Departmental Examination. The said intention is, in fact, borne out from the
initial stand taken by the State Government in the different writ applications
filed by the candidates who had either been successful in the Limited
Departmental Examination or had failed to succeed in the regular recruitment
process undertaken by the Public Service Commission. As has been commented upon
by the High Court, in these writ petitions the State had filed
counter-affidavits indicating that the decision of the Government to hold
Limited Departmental Examination had already been upheld in Zaki Khans
case which had substantially decided the issue raised in the said writ
petitions by the direct recruits and it was also the stand of the State
Government that the expression 19;ad hoc appointments20; had been used in
the appointment letters issued to the successful 1987 candidates having regard
to interim order passed by the High Court in Brijendra Bahadur Singhs
case. It was the Governments stand that in order to pay due regard to the
interim order dated 5.2.1987 that the Government had directed the Commissioner,
Trade Tax, to use the expression 19;ad hoc20; in the appointment letters.
In any event, the said interim order stood discharged when the writ petition
was dismissed on 3.10.1996. It was also the stand of the State Government that
the appointments made in 1987 by way of the Limited Departmental Examination
had been made after following due procedure. What is most important was the
Governments stand that the appointments made on 20.6.1987 on the basis of
the Limited Departmental Examination were of substantive nature.
78. In
the writ petition filed by Vinod Kumar Gupta (W.P.No.1295/SB/1997) the
Government filed its counter affidavit indicating that the amendment was made
to achieve the policy decision of giving substantive appointment from the date
of initial appointment to those persons who had been appointed on the basis of
the Limited Departmental Examination and the word ad hoc had been
used in due deference to the interim order passed by the High Court on
12.2.1987 which ceased to operate after the dismissal of the writ petitions
Nos.496 of 1987 and 1008 of 1987.
Subsequently,
when the 1983 Service Rules were amended in 1997, the Government also indicated
that the amendment was made only to clarify/declare that the appointments made
under the Limited Departmental Examination were regular and substantive and
only a declaration had been made in that regard in the third amendment and that
no regularisation was at all envisaged. In the writ petition filed by Govardhan
Lal the State in its counter affidavit stated :
19;The
Service Rules of 1985 had been amended which envisaged that the persons
appointed through Limited Departmental Examination were appointed on a regular
and substantive basis from the date of their initial appointment (Emphasis
supplied)
79. In
the said counter affidavit it was once again emphasised that in the facts of
the case, it was not a case of regularisation of the services of the 1987
appointees, as projected on behalf of the respondents in the first two appeals,
but that on the contrary it was a case where the 1987 appointees had been
appointed on substantive basis with due procedure which had been approved in
the case of Mohd. Zaki Khan. It was once again emphasised that the amendment
only declared what was in existence and did not create any new right. Again at para
34 of the counter affidavit it was stated as follows:
19;..that
no process was ever initiated to regularise the service of respondents Nos. 3
to 99. This was for the reason that the appointment of respondent Nos.3 to 99
(1987 appointees) was always considered to be substantive appointment
80.
The shift in the State Governments stand came later as would be evident
from the orders passed by it on 22.9.2000 onwards. It will be evident from the
above, that the State Government had considered the appointments in the 97
posts to be substantive in nature. As a result whereof no steps were taken
between 1987 and 1997 to regularise the appointments of the 1987 appointees. It
is only a fortuitous circumstance, namely passing of the interim order in Brijendra
Bahadur Singhs case on 5.2.1987, that the expression ad hoc came
to be mentioned in the appointment letters of the 1987 appointees, although the
State Government had intended such appointments to be substantive in nature. It
is to be decided whether the respondents in the first two appeals and the
appellants in the third appeal, as also the State Government, can now take
advantage of the inclusion of such expression in the appointment letters issued
to the 1987 appointees, particularly when the writ petitions out of which the
same emanated were ultimately dismissed.
81. In
our view, notwithstanding the well-settled principle that an employees
service is to be counted for seniority only after he is born in the cadre, in
the facts of this case the 1987 appointees will have to be treated differently.
Although,
the State Government may have shifted its stand to the extent that the services
rendered by the 1987 appointees till 1997 could not be counted for computing
their seniority, as their initial appointment was ad hoc in nature, we are of
the view that such a stand would lead to inequity in view of the expressed
intention of the State Government in the earlier writ petitions.
82. As
we have mentioned earlier, it is in only fortuitous circumstances that the
appointment of the 1987 appointees through the Limited Departmental Examination
was treated to be ad hoc, although, as initially expressed by the State
Government such appointments were meant to be substantive in nature. It is
quite obvious that having included the condition that the appointments were ad
hoc in nature in the appointment letters issued to the 1987 appointees, that
the State Government has now sought to place the 1987 appointees below those
who had sat for the recruitment examination after the appointment of the 1987
appointees and had not been borne on the cadre prior to 1990. While agreeing
with Mr. Gaurab Banerji that it is well- settled that an employee can only
count his seniority from the moment he becomes part of the cadre, in the
instant case we are of the view that the facts are distinguishable in that the
services of the 1987 appointees should be treated as substantive from the date
of their initial appointment and not from 1997 when by amendment of the Service
Rules their services were deemed to have been regularised and they were
included in the cadre with effect from the date of such amendment. The fact
remains that the 1987 appointees were appointed in the 97 posts which were
taken out of the purview of the Public Service Commission but continued to be
in the cadre of Trade Tax Officer, Grade II. Having regard to Rule 3(1) of the
1983 Service Rules, the 1987 appointees must be held to have been substantially
appointed in accordance with the procedure prescribed by the State Government.
In our view, such an appointment did not, in any manner, derogate from their
appointment in the cadre of Trade Tax Officer, Grade II.
83. It
is nobodys case that the 97 posts which were taken out from the purview of
the Public Service Commission ceased to be posts in the cadre of Trade Tax
Officer, Grade II. On the contrary, the specific stand taken in Mohd. Zaki
Khans case was that since the appointment of the 1987 appointees were ad
hoc in nature the said posts were never filled-up and were still available for
being filled up by regular candidates from amongst the direct recruits.
84.
The State Government has in paragraph 34 of its counter-affidavit in Govardhan Lals
writ petition said in no uncertain terms that no process had been initiated to regularise
the services of the 1987 appointees for the reason that their appointment was
always considered to be substantial in nature. We, therefore, have little
hesitation in holding that the service rendered by the 1987 appointees between
1987 and 1997 cannot be ignored for computing their seniority in the cadre on
the ground that in view of the interim orders passed by the High Court in
different writ petitions, which ultimately came to be dismissed, their
appointments were treated to be ad hoc.
85.
We, accordingly, allow Civil Appeal Nos. 4968 of 2007 filed by Ashok Kumar Shrivastava
and 63 others, Civil Appeal No.4969 of 2007 filed by Muneshwar Babu and Ashok
Kumar Srivastava, as also Civil Appeal No.4970 preferred by Goverdhan Lal.
Consequently,
Writ Petition No.1041(SB) of 1996 filed by Ram Lal and others, Writ Petition
No.1295 (S/B) of 1997 filed by Vinod Gupta, Writ Petition No.1863 (S/B) of 1998
filed by Govardhan Lal are dismissed and the impugned order so far as it
relates to the aforesaid writ petitions, is set aside.
86.
Consequently, Writ petition No.1778 (S/B) of 2000 filed by Jugul Kishore, Writ
Petition No.2000 (S/B) of 2000 filed by Rajendra Prasad, Writ Petition
No.2787(S/B) of 2001 filed by Ashok Kumar Srivastava, Writ Petition No.1666
(S/B) of 2005 filed by Muneshwar Babu and another, and Writ Petition No.894
(S/B) of 1999 filed by Shiv Prasad Tewari and others are allowed. The concerned
respondents are directed to treat the 1987 appointees who had been appointed on
the basis of Limited Departmental Examination to have been substantially
appointed at the time of their initial appointment in 1987 and to revise the
seniority list pertaining to Trade Tax Officer, Grade II, on such basis.
All
the three appeals are disposed of accordingly, but having regard to the
peculiar circumstances the parties will bear their own costs.
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