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2001 DIGILAW 257 (GAU)

Permanent S. Syiem v. David Hammer Marwein

2001-09-06

N.SURJAMANI SINGH, R.S.MONGIA

body2001
R.S. MONGIA, CJ. — Respondent No. 1 Shri David Hammer Marwein as a writ petitioner, claimed seniority over appellants No. 1,2,3 and 4 who were respondents No. 4 to 8 in the writ petition. To appreciate the case of the writ petitioner which was projected before the learned Single Judge, reference to bare facts would be necessary. 2. Writ petitioner was appointed in the Government of Meghalaya service as Sub-Inspector of Supplies on 23.12.1977 under Rule 3(f) of Meghalaya Public Service Commission (Limitation of Functions) Regulation 1972. Pursuant to the order of appointment he had joined the service on 2.1.1978. It may be observed here that in view of the pay scale of the post in question, the said post was within the purview of the Public Service Commission (in short PSC). Since the recruitment had not been done by the PSC, the appointments were made by the Government of the petitioner and three others under Regulation 3(f) of the PSC Regulations mentioned above. In response to an advertisement for regular appointment the posts of Sub-Inspector of Supplies, the writ petitioner, private respondents and some others applied for the same. The writ petitioner and the private respondents were declared successful and in the merit list which was prepared by the PSC and was sent to the State Government on 22.6.79, name of the writ petitioner was appearing at serial No. 13 whereas the name of the appellants (private respondents in the writ petition) appeared at serial Nos. 1, 4, 6, 8 and 10. On receiving the communication from the PSC, the State Government issued order of appointment on 14.2.80 appointing respondents No. 4, 5 and 6 before the writ Court as Sub-Inspector of Supplies. Other private respondents in the writ petition as also the writ petitioner were issued appointment on 6.6.80. However, so far as the writ petitioner was concerned, he was made regular vide order dated 6.6.80 with effect from 22.6.79 (the date of the recommendation of the PSC). The letter dated 6.6.80 giving retrospective regularisation to the writ petitioner reads as under: - "M/DS. 198/77/244. However, so far as the writ petitioner was concerned, he was made regular vide order dated 6.6.80 with effect from 22.6.79 (the date of the recommendation of the PSC). The letter dated 6.6.80 giving retrospective regularisation to the writ petitioner reads as under: - "M/DS. 198/77/244. - On the recommendation of the Meghalaya Service Commission, Shillong vide letter No. 43/ MPSC/D-7/-78 dated 22.6.79, the appointment of the following persons as Sub-Inspector of Supply under Regulation 3(f) of the MPSC (Limitation of Functions) Regulations, 1978 in the scale of pay Rs.300-12-360-EB-14-EB-15-5151- per month plus other allowances as admissible under the rules is hereby regularised with effect from 22.6.79 i.e. the date recommended by MPSC for the said post. 1) Shri D.H. Marwein, Sub-Inspector of Supply, Nongstoin. 2) Shri L.E. Marak, Sub-Inspector of Supply, Mendipathar, 3) Shri Jackson N. Sangma, Sub-Inspector of Supply, Williamnagar. 4) Shri T.A. Marak, Sub-Inspector of Supply, Baghmara." In fact, by the aforesaid order three other persons apart from the writ petitioner who had been appointed under Regulation 3(f) were also regularised with effect from 22.6.79. The claim of the writ petitioner before the learned Single Judge was, that despite he having been appointed on regular basis retrospectively with effect from 22.6.79 and the private respondents before the writ Court having been appointed on 14.2.80 or 6.6.80, were being -shown senior in various gradation lists despite the writ petitioner having longer length of service. In fact, by the time the writ petition was filed, both the writ petitioner and private respondents had got two next promotions, one to the rank of Inspector and thereafter to the rank of Superintendent. Both writ petitioner and private respondents were promoted as Inspectors on the same day whereas some of the private respondents before the writ Court were promoted to the rank of Superintendent earlier whereas the writ petitioner was promoted later. The writ petitioner claimed in the writ petition that he should be declared senior to the private respondents as also his date of promotion as Superintendent should be a date prior to the date given to some of the private respondents. It may be observed that some of the private respondents had been promoted as Superintendent on 19.6.95. The writ petitioner claimed in the writ petition that he should be declared senior to the private respondents as also his date of promotion as Superintendent should be a date prior to the date given to some of the private respondents. It may be observed that some of the private respondents had been promoted as Superintendent on 19.6.95. The learned Single Judge found favour with the arguments on behalf of the writ petitioner and held that he was senior to the private respondents before him on account of the fact that Writ petitioner's appointment dated back to 22.6.79 whereas of the private respondents, the dates of appointment as Sub-Inspector was either 14.2.80 or 6.6.80. The private respondents before the writ Court, feeling aggrieved by the judgment of the learned Single Judge dated 14.6.99 filed the present appeal. Notice was issued. The respondents have put in appearance including the respondent/writ petitioner. 3. We have heard the learned counsel for the parties and gone through the record. 4. Two circulars were mainly relied upon before the learned Single Judge to claim seniority by the writ petitioner over the private respondents. One circular is dated 30.4.74 issued by the State Government and the other is dated 5.11.80. It would be apposite to reproduce these circulars in entirety:-"30.4.1974. I am directed to say that in many cases temporary appointments have been made by various appointing authorities under Regulation 3(f) of the Meghalaya Public Service Commission (Limitation of Functions) Regulations, 1972, as amended, and instances have come to notice that when the names of those incumbents were subsequently recommended by the Meghalaya Public Service Commission, their regular appointments were given effect to from the date of their earlier temporary appointment under Regulation 3(f). This is irregular, as the question of giving them regular appointment will arise only after their names are recommended by the Meghalaya Public Service Commission. This is irregular, as the question of giving them regular appointment will arise only after their names are recommended by the Meghalaya Public Service Commission. I am, therefore, to request you kindly to ensure that when an incumbent appointed to under Regulation 3(f) to a post is subsequently recommended by the Meghalaya Public Service Commission to that same post such incumbent, if according to merit eligible to be appointed, should be given regular appointment only with effect from the date of such recommendation or from any date subsequent thereto, preferably the date of issue of orders by the Department." (emphasis supplied) "5.11.1980 I am directed to invite a reference to your letter cited above and to say that regular appointment should take effect from the date of recommendation of the Meghalaya Public Service Commission or from any' date subsequent thereto, preferably the date of issue of orders by the Department in accordance with this Department's letter No. PER. 81/74/24, dt. 30.4.74 (copy enclosed). The period of continuous officiating appointment under Regulation 3(f) or on ad-hoc basis will not count towards seniority on their appointment being subsequently regularised. Their seniority will be determined in accordance with the instructions contained in Govt. of Assam's circular No. ABP.51/63/1 dt. 5.2.54 and No. ABB.95/63/694, dt. 1.6.67 as incorporated in the Handbook of General Circulars." (emphasis supplied) 5. It may be observed here that before the learned Single Judge as well as before us, the appellants (private respondents before the learned Single Judge) had also raised the plea of laches which did not find favour with the learned Single Judge. We are also of the view, that since it related to question of seniority and the writ petitioner had been making representation after representation, and ultimately on the basis of those seniority, when last promotion was made to the rank of Superintendent he again made representation and finding no response, he filed the present writ petition. Consequently, the plea of laches on behalf of the appellants is hereby over-ruled. 6. Consequently, the plea of laches on behalf of the appellants is hereby over-ruled. 6. Without going into the validity of the circular dated 30.4.74 as it was never raised before the learned Single Judge and, assuming it to be valid, it only gives a power to the State Government to make regular appointment of the recommendees of the PSC who might have been working on ad-hoc basis under Regulation 3(f), but the date of such regular retrospective appointment has to be not prior to any date than the date of recommendation of the PSC. The order dated 6.6.80 giving regularisation to the petitioner and some other persons with effect from 22.6.79 was, in all probability, under the circular dated 30.4.74 referred to above. However, the circular dated 30.4.74 does not in terms provide as to how seniority of such a deemed appointee is to be determined, via-a-vis the order recommendees by the PSC. As to how seniority of such appointees is to be determined, reference may be made to circular dated 5.11.80 reproduced above. The subject of that circular shows regarding the counting of the period of officiating appointment or ad-hoc appointment towards leave, increment, etc. It clearly envisages that with the regular appointment of the recommendees who might have earlier worked under Clause 3(f) of the Regulation of the PSC, may be given benefit of that service for leave, increments, etc. but it definitely states that such period on regular appointment would not be counted towards seniority and the seniority of such an appointee would be determined under circular dated 5.2.54 and 1.6.67. It may be observed here, that circular dated 1.6.67 only tells us about the seniority of a person who might not be confirmed on the due date but is confirmed later. We are not concerned with that. What we are concerned is with the circular dated 5.2.54. Circular dated 5.2.54 is in the following terms:- "In the matter of fixation of seniority, the following instructions, incorporating all the principles enunciated in the past, are issued for the guidance of all' Departments. These instructions will not, however, apply if there are specific rules on this matter. 1. What we are concerned is with the circular dated 5.2.54. Circular dated 5.2.54 is in the following terms:- "In the matter of fixation of seniority, the following instructions, incorporating all the principles enunciated in the past, are issued for the guidance of all' Departments. These instructions will not, however, apply if there are specific rules on this matter. 1. Appointments made through the Assam Public Service Commission:- (i) The seniority of candidates appointed on the recommendation of the Assam PSC in one batch should be fixed according to their order in the merit list as arranged by the Assam PSC, if all the persons in the batch join the appointments within 15 days. But if a candidate is prevented from joining within this period by circumstances of a public nature and beyond his control, the period may be extended by the Appointing Authority. In that case, the seniority should be fixed according to his order of merit in the merit list of the Assam PSC. If the period is not so extended by the Appointing Authority then his seniority will be fixed according to the date of joining. (ii) If two persons are appointed on the recommendation of the Assam PSC in two different batches, then the person who was recommended in the earlier batch should be considered senior to the person who was recommended in the later batch, (iii) Sometimes two or more persons are bracketed in the merit list of the Assam PSC. If there is any indication of preference in the merit list about their suitability for the post in question, the seniority should be fixed according to the preference indicated, otherwise the inter-se seniority of those persons should be determined in accordance with the date of birth." It may be observed here that Clause 10.2 of the instructions dated 5.2.54 have no bearing in the present case as that deals with two recommendees who were earlier working under Regulation 3(f). Here, we are not concerned with that as the private respondents (appellants) were not appointees under Regulation 3(f). 7. The circular dated 5.2.54 would be applicable for determining seniority as there are no specific rules on the matter governing the parties. Here, we are not concerned with that as the private respondents (appellants) were not appointees under Regulation 3(f). 7. The circular dated 5.2.54 would be applicable for determining seniority as there are no specific rules on the matter governing the parties. The aforesaid circular dated 5.2.54 would clearly indicate that if appointments are made from the same recommendations in two batches, the inter-se seniority between the members would be batch wise and between the members of the same batch, it will be as per the merit determined by the PSC. Applying the aforesaid principle, the appointees in the first batch dated 14.2.80 would be senior to the appointees of the later batch dated 6.6.80 which includes the writ petitioner. For the writ petitioner, the relevant date for purposes of seniority would be 6.6.80 and not 22.6.79. Inter-se between the batch who were appointed on 6.6.80, the determination of seniority would be as per the merit determined by the PSC. Admittedly, the appellants (private respondents) were kept higher in merit than the writ petitioner, they would rank senior to the writ petitioner. Consequently, we are unable to agree with the reasoning of the learned Single Judge. 8. For the foregoing reasons, we allow this appeal, set aside the judgment of the learned Single Judge and dismiss the writ petition. There will be no order as to costs.