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Gauhati High Court · body

2000 DIGILAW 252 (GAU)

C. Chhundenga v. State of Mizoram

2000-07-28

P.C.PHUKAN

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I have heard Mr. G. Raju, learned counsel for the petitioner and Mr. T Vaiphei, learned Assistant Advocate General for the State-respondents. None appears for the private respondents. I have also considered the records of the case including the affidavit-in-opposition filed on behalf of the State-respondents and the Annexures thereto. 2. The petitioner was appointed as Supervisor (Mukhyasevika) on ad hoc basis by the respondent No. 3, Director, Social Welfare Department, Govt of Mizoram vide order dated 31.8.83 (Annexure I). He joined as such on 1.9.83. Subsequently, the post of Supervisor were advertised. The petitioner also appeared before the Selection Committee and was selected for regularisation of appointment. An order dated 8.12.83 (Annexure II) was issued appointing him as such with effect from 9.12.83. By another order dated 9.6.93 (Annexure VI) the petitioner was allowed to count his aforesaid period as Supervisor from 1.9.83 for future increments but not for his seniority. However, a Departmental Promotion Committee (DPC in short) held on 10.3.93 recommended regularisation of his ad hoc appointment period with effect from 1.9.83 as Circle Officer (Supervisor redesignated as Circle Officer), and further recommended that he should be placed are SI No.8 in the Seniority List. However, the respondent No.3 by his letter dated 18.6.93 (Annexure VII) addressed to respondent No.2 the Secretary to the Govt of Mizoram, Social Welfare Department sought review of such recommendation of the DPC stating, inter alia, that in the selection for regular appointment to the post of Supervisor, the petitioner was given 23rd position in the merit list of 28 selected candidates which forms the basis for seniority as per rules, and that the ad hoc appointee cannot have any claim to count the period of ad hoc appointment for seniority and the DPC could not have regularised the petitioner's ad hoc appointment period with effect from 1.9.83 i.e. the date of his joining as ad hoc appointee. The DPC held on 20.8.93 found that there was one days break as his ad hoc appointment period was counted from 1.9.83 to 7.12.83 and he was appointed on regular basis with effect from 9.12.83, reviewed the earlier recommendation and recommended that he should be placed at Sl. No. 24 in the seniority list vide minutes of the DPC meeting (Annexure VIII). 3. No. 24 in the seniority list vide minutes of the DPC meeting (Annexure VIII). 3. The petitioner then filed Civil Rule No. 22 of 1996 for quashing the minutes of the DPC as aforesaid, and this Court disposed of the same by an order dated (Annexure XII) observing therein that as no action was taken by the Govt on such recommendation as yet, the petitioner may approach this Court if and when the Govt pass any order against his interest. Thereafter, the Govt issued the following order dated 19.1.98 (Annexure XIII) impugned in this writ petition: “In continuation of this office memorandum issued on 4.2.97 for as no any grievance of representation against provisional seniority of Circle Officer within the stipulated time and period. The inter-se seniority of Circle Officer in the scale of Rs. 1,600-2,660 is hereby finally fixed as shown below : Sl. No. Name Date of joining 1. C. Thansangi 17.5.79 2. C. Chhundenga (petitioner) 9.12.93 4. It is submitted that no provisional Seniority List was ever published as claimed in the above order and hence there is no question of submission of any representation against the provisional Seniority List. It is further submitted that the review DPC's finding as to one days break is factually incorrect, for, he received his second appointment order effective from 9.12.83 while he was working on ad hoc basis with effect from l .9.83 till 8.12.83, and his service as ad hoc appointee was not terminated on 7.12.83. Even if such submission is accepted, the position would be that he worked as ad hoc appointee from 1.9.83 to 8.12.83 and started working as regular appointee with effect from 9.12.83 and that being the position, this seniority has been rightly counted from 9.12.83 in the impugned seniority list (Annexure XIII). In Direct Recruit Class II Engineering Officer's Association vs. State of Maharashtra & others, (1990) 2 SCC 715 (745) the Apex Court held, “(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. 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 Ms service in accordance with the rules, the period of officiating service will be counted.” 5. In the State of Haryana vs. Amarjit Singh reported in (1996) 2 SCC 725, the respondent had spells of ad hoc service as Sub Inspector in the Food and Supplies Department with breaks. But last one was immediately followed by regularisation. He last joined as such on 15.11.91 on ad hoc basis. While he was thus employed, he was given regular employment with effect from 27.6.72. The High Court held that the period of ad hoc service rendered should be taken into consideration for fixation of pay and seniority. Allowing the State's appeal, the Apex Court held - “The earlier service of the respondent up to his regular appointment on the basis of selection by the Subordinate Service Selection Board on 27.6.1972 was ad hoc in nature. This is clearly indicated in the order of appointment dated 26.10.1971. Having regard to the decisions of this Court and more specially the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra, the respondent cannot be given the benefit of the said ad hoc service rendered by him prior to 27.6.1972 for the purpose of seniority. We are unable to agree with the submission of the learned counsel for the respondent that the case of the respondent falls in conclusion B of the said judgment. In our opinion, the case of the respondent is clearly covered by the corollary to conclusion A of the said judgment. That is also the view taken by the Full Bench of the High Court of Punjab and Haryana in Chambal Singh case. The High Court was in error in giving the benefit of ad hoc service to the respondent in the matter of fixation of seniority and the said judgment cannot be upheld.” 6. That is also the view taken by the Full Bench of the High Court of Punjab and Haryana in Chambal Singh case. The High Court was in error in giving the benefit of ad hoc service to the respondent in the matter of fixation of seniority and the said judgment cannot be upheld.” 6. In the instant case also the petitioner's earlier service from 1.9.83 upto his regular appointment with effect from 9.12.83 on the basis of the selection was ad hoc in nature. This is clearly indicated in the appointment order dated 31.8.83 (Annexure I) which specifically says that the appointment is made purely on ad hoc basis. Hence the benefit of ad hoc Service from 1.9.83 to 8.12.83 cannot be given to him on the matter of fixation of his seniority. In the impugned Seniority List dated 19.1.1998 (Annexure XDI) his seniority has been rightly counted from 9.12.83. The order dated 18.12.83 (Annexure II) appointing him on regular basis specifically states that such appointment will be effective from 9.12.83. 7. In view of what has been stated above, this writ petition is found to be devoid of any merit and is dismissed. No costs.