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Gauhati High Court · body

2002 DIGILAW 139 (GAU)

Tana Kaya Tara v. State of Arunachal Pradesh

2002-03-22

B.B.DEB

body2002
B.B. DEB, J. — The petitioner put the final seniority list dated 1.11.2000 for the post of Assistant Engineer (Electrical) under challenge in this writ petition contending, inter alia, that at the time of regularisation of the ad-hoc appointments of the petitioner and the private respondent Nos. 4 to 9 along with others, the Arunachal Pradesh Public Service Commission (APPSC) conducted an interview in 1994 and according to the merit as has been assessed by the APPSC, a common formal appointment letter on regularisation of the ad-hoc services of the petitioner and the private respondent Nos. 4 to 8 and others had been issued on 14.8.95 to the post of Assistant Engineer (E) and as such the seniority list ought to have been finalised in conformity with the order of appointment. But that was not done. Hence, this writ petition. 2. The private respondent Nos. 4 to 9 are graduate engineers and had been directly appointed on ad-hoc basis to the post of Assistant Engineer(E) on different dates in 1988 and 89. Before their appointment, no competitive examination had been held in accordance with the related service rules nor they had faced any selection process. But, before regularisation of their services, the APPSC conducted interview/viva-voce test and on the basis of the result of the viva-voce test recommended the regularisation "in order of merit" wherein the petitioner's name has been figured at SI. No. 8 while the name of private respondent Nos. 4 to 9 figured at SI. Nos. 11, 12, 13, 14, 15 and 10 respectively. Acting upon the recommendation of the APPSC, the State Government issued a common formal order of regular appointment vide order dated 14.8.95 and in that common appointment letter, the name of the petitioner has been figured at SI. No. 8 while the name of the respondent Nos. 4 to 8 figured at SI. Nos. 10, 11,12,13 and 14, but the name of respondent No. 9 was not figured therein and since 14.8.95, the petitioner as well as the private respondent Nos. 4 to 8 have been serving on substantive basis while the respondent No. 9 was not appointed substantively at that time. The Government published the provisional seniority list vide memo dated 17.6.99 and that the finalised vide letter dated 17.11.2000 and in the finally published seniority list, the petitioner's name has been figured at SI. 4 to 8 have been serving on substantive basis while the respondent No. 9 was not appointed substantively at that time. The Government published the provisional seniority list vide memo dated 17.6.99 and that the finalised vide letter dated 17.11.2000 and in the finally published seniority list, the petitioner's name has been figured at SI. No. 51 while the names of the private respondent Nos. 4 to 9 have been placed at SI. Nos. 38,39, 47,48,50 and 36 respectively. In finalising the seniority list, the State respondents have not followed the merit position available in the letter of recommendation made by the APPSC. The petitioner should have been shown senior to the private respondent Nos. 4 to 9. 3. The State respondents filed the counter affidavit contending, inter alia, that as many as 17 graduate engineers had been appointed to the post of Assistant Engineer (E) on ad-hoc basis against direct quote vacancies after constitution of the State Public Service Commission and for their regularisation, the related files of the incumbents had been placed before the Public Service Commission. The APPSC conducted a formal viva-voce test and thereafter recommended the regularisation and accordingly, the service of the petitioner, private respondent Nos. 4 to 9 and others had been regularised by a common formal appointment letter. The draft seniority list was published against which some incumbents made representations contending, inter alia, that the initial dates of appointment of the respective candidates have been ignored while preparing the draft seniority list. The Government constituted a screening committee and on the recommendation of the screening committee, the seniority list has been finalised having regard to the date of initial appointment of the respective incumbents. Since the private respondent Nos. 4 to 9 had been appointed earlier on ad-hoc basis, the weightage was given to the date of appointment in publishing the final seniority list. 4. The private respondents filed separate counter affidavits in the same tune as of the State respondents. The private respondents elaborated the factual and legal aspects in their respective counter affidavits. 4 to 9 had been appointed earlier on ad-hoc basis, the weightage was given to the date of appointment in publishing the final seniority list. 4. The private respondents filed separate counter affidavits in the same tune as of the State respondents. The private respondents elaborated the factual and legal aspects in their respective counter affidavits. According to the counter affidavits of the private respondents, the appointments of the petitioner as well as the private respondents to the post of Assistant Engineer (E) had never been done in accordance with Rule 11 of "The Arunachal Pradesh Power Engineering Service Rules, 1993" (hereinafter referred to as "the related Service Rules, 1993") and as such there arose no question of maintaining any merit position in the process of recruitment. According to Rule 11 of the related Service Rules, 1993,50% of the posts in the grade of Assistant Engineer (E) shall be filled up by direct recruitment from amongst the graduate engineers on the basis of written examination and viva-voce test to be conducted by the APPSC as per syllabus mentioned in brief in the Schedule-II of the related Service Rules, 1993 and the remaining 50% by promotion and selection process in consultation with the APPSC from amongst the eligible Junior Engineers in the service. Since neither the petitioner nor any of the private respondents, admittedly, have been appointed pursuant to Rule 11 of the related Service Rules, 1993, the question of maintaining the merit position does not arise - the learned counsel for the private respondents contended. According to the learned counsel for the private respondents and the learned Advocate General that as the services of the petitioner as well as the private respondents and others who had been irregularly appointed, dehorse of the service rules, the Government felt it necessary to regularise their service on resorting to power of 'relaxation' embodied in Rule 11 of the related Service Rules, 1993. The relevant Rule 33 is reproduced below:- "Power to relax: - Where the State Government is of the opinion that it is necessary or expedient to do so, it may, by order for reasons to be recorded in writing and in consultation with the Commission relax any of the provision of these rules with respect of anyone or other category of persons or posts." 5. Having resorted to the relaxation power as quoted above, the State Government vide order bearing No. SPWD-394/E/8/-88 dated 13.5.94 prescribed the mode and manner of regularisation of the service of Assistant Engineer (E) appointed or promoted before constitution of the Arunachal Pradesh Public Service Commission (1.4.88) and also regularisation of the appointments of Assistant Engineers either directly or on promotion after constitution of APPSC. Since the petitioner, private respondents and few others had been appointed after constitution of the APPSC (i.e. on 1.4.88) the second paragraph of the relaxation order dated 13.5.94 is relevant and as such the same is reproduced below:- "Government of Arunachal Pradesh PWD: Secretariat: Itanagar Order No. SPWD/394/E/8/-88 Dated Itanagar the 13th May, 1994. In pursuant of Rule 11................................ ................................................................ Further, the Governor of Arunachal Pradesh is also pleased to grant one time relaxation to those Assistant Engineers(E) appointed/ promoted on ad-hoc basis after the constitution of APPSC (i.e. after 1.4.88) for regularisation of their ad-hoc service, (1) (a) - in case of recruitment against direct recruitment quota, from the date(s) of their respective initial appointments on ad-hoc basis by conducting formal viva-voce test only, by the APPSC; and (b) from the date(s) of their promotion on ad-hoc basis, in case of vacancies filled in by promotion, to various grades of the services, on the basis of their confidential reports as assessed by a DPC constituted by the APPSC for this specific purpose. SoV-Ashok Nath Commissioner, Power Govt. of Arunachal Pradesh Itanagar." (Emphasis supplied) From the aforequoted decision of the Government in relaxation of Rule 11 done on resorting to Rule 33 of the related Services Rules, 1993, it reveals that before reglarisation of the ad-hoc appoiontments of the petitioner and the private respondents made after 1.4.88, the Government decided to follow some procedure. Firstly, the regularisation of the ad-hoc appointments was ordered to be done by conducting a formal viva-voce test by the APPSC and secondly, the regularisation should be from the date of their respective initial appointments on ad-hoc basis so far direct recruitees are concerned and from the date of promotion on ad-hoc basis so far the promotees are concerned. 6. While exercising the power of relaxation of the related Services Rules, 1993, the competent authority was very much alive to give weightage to the respective dates of appointments of the incumbents holding the post of Assistant Engineer on ad-hoc basis. 6. While exercising the power of relaxation of the related Services Rules, 1993, the competent authority was very much alive to give weightage to the respective dates of appointments of the incumbents holding the post of Assistant Engineer on ad-hoc basis. Only to screen off the unsuitable incumbents holding the posts of Assistant Engineer on ad-hoc basis, a viva-voce test was ordered to be conducted by the APPSC. This viva-voce test for the purpose of regularisation of the service of the ad-hoc appointees Assistant Engineers cannot be equated with the competitive examination to be conducted by the APPSC pursuant to Rule 11 of the related Service Rules, 1993. The viva-voce test ordered by the Government while exercising relaxation power under Rule 33 was only for the purpose of screening off unsuitable candidates in the process of regularisation once the candidate or candidates is/are found to be suitable by the APPSC in viva-voce test, his/their date(s) of appointments relate back to the date of initial appointment and as such, in my considered opinion, the APPSC has never been asked to prepare a list of suitability of the candidature on merit. But the APPSC was required to publish the list of candidates found suitable simpliciter having not mentioned the comparative suitability. 7. Learned counsel for the petitioner having referred the common appointment letter bearing No. PWRS/E/253/95/96 dated 14.8.95 submits that the name of the petitioner in that common appointment letter is figured at SI. No. 8 while the names of the private respondent Nos. 4 to 8 have been figured below the name of the petitioner and the name of the respondent No. 9 is not figured at all. Learned counsel for the private respondent No. 9 submits that the reason for not issuing the formal appointment letter in favour of the respondent No. 9 has been dealt with in his formal appointment letter bearing No. PWRS/E/253/95-96 dated 26.7.99 vide Annexure-D/2. From that letter, it appears that the APPSC though recommended the name of respondent No. 9, but since there was a criminal case pending against him, his substantive appointment was withheld. After being exonerated from the criminal charge, the respondent No. 9 was appointed vide substantive appointment letter dated 26.7.99 with effect from his initial date of appointment on ad-hoc basis i.e. 18.5.88. 8. The State Government initially regularised the service of the petitioner, private respondent Nos. After being exonerated from the criminal charge, the respondent No. 9 was appointed vide substantive appointment letter dated 26.7.99 with effect from his initial date of appointment on ad-hoc basis i.e. 18.5.88. 8. The State Government initially regularised the service of the petitioner, private respondent Nos. 4 to 8 and others by a common order dated 14.8.95. But subsequently, having regard to the decision taken by the Government pursuant to Rule 33 of the related Service Rules, 1993, it was felt necessary to issue individual appointment letters with reference to the date cf initial appointment on ad-hoc basis and thus, on 14.12.95, the substantive appointment letters on regular basis had been issued in individual name of the incumbents with reference to the respective initial dates of appointment. The petitioner admittedly was appointed to the post of Assistant Engineer (E) on ad-hoc basis on 22.12.89 as available from Paragraph 3 of the writ petition and that is correctly shown in the finally published seniority list (Exbt.-B). The respondent Nos. 4 to 8 had been initially appointed on ad-hoc basis on 30.9.88, 30.9.88, 22.12.89, 22.12.89 and 22.12.89 respectively while the respondent No. 9 was appointed on 18.5.88 on ad-hoc basis. 9. Learned counsel for the private respondents having relied upon the decision of the constitutional Bench of the Hon'ble Apex Court in the Direct Recruit Class-11Engineering Officers 'Association -Vs-State ofMaharashtra reported in AIR 1990 SC 1607 submits that though the petitioner as well as the private respondents had been initially appointed dehorse of the service Rules, but had been continuously serving till they have been regularised and as such their officiating service on ad-hoc basis have been rightly counted in fixing the seniority list. The directives of the Hon'ble Apex Court in paragraph 44 so far relevant to the present case is reproduced below:- (A)*********** (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) *********** 10. In the present case, initially the petitioner as well as the private respondents had never been appointed in accordance with the service rules, rather they were appointed on ad-hoc basis dehorse of the related service Rules, 1993. (C) *********** 10. In the present case, initially the petitioner as well as the private respondents had never been appointed in accordance with the service rules, rather they were appointed on ad-hoc basis dehorse of the related service Rules, 1993. But they continued uninterruptedly in the said posts of Assistant Engineer till their services had been regularised in accordance with the related service Rules, 1993 and as such the ratio of the aforecited case squarely covers the present case. The decision cited by the learned Advocate General in Prafulla Kumar Swain-Vs-Prakash Chandra Misra reported in 1993 Supp (3) SCC 181 appears to be not applicable in the present case. In that decision of Prafulla Kumar Swain (supra), the Hon'ble Apex Court held that in case of direct recruitment in accordance with the Orissa Forest Service Class-II Recruitment Rules, the seniority should be counted from the date of appointment and not from the date of recruitment. In that case, the recruitment was done to Orissa State Forest Service Class-II and deputed for departmental training and on completion of training for two years in Forest Service College, the petitioner was formally appointed as Assistant Conservator of Forests and as such, the Hon'ble Apex Court held that this seniority should be counted from the date of formal appointment on completion of training and not from the initial recruitment before training. The decision rendered by the learned counsel for the private respondents in L Chandrakishore Singh-Vs-State of Manipur and others reported in (1999) 8 SCC 287 is not applicable in the present case. In that case, what was decided by the Hon'ble Apex Court is that in counting the seniority, the length of service of the probationer or a person appointed on officiating basis followed by confirmation shall be counted for the purpose of seniority. The decision cited by the learned counsel for the petitioner in Ramesh K. Sharma-Vs-Rajasthan Civil Services and others reported in (2001)1 SCC 637 appears to be not applicable in the present case. In that case, the Hon'ble Apex Court held that a post could be temporary or it could be permanent or for a definite period to meet an urgent contingency. If an incumbent is appointed after due process of selection either to a temporary post or permanent post and such appointment, not being either stopgape or fortuitous could be held to be on substantive basis. If an incumbent is appointed after due process of selection either to a temporary post or permanent post and such appointment, not being either stopgape or fortuitous could be held to be on substantive basis. In the present case, the petitioner has never been appointed substantively following the Recruitment Rules initially in 1989, but was appointed on ad-hoc basis, dehorse of the rules and his service has been regularised in accordance with the Rule 33 of the related Service Rules, 1993 and as such he cannot claim seniority prior to his date of appointment as on 22.12.89. Since the private respondent Nos. 4,5 and 9 had been appointed on ad-hoc basis prior to the appointment of the petitioner on ad-hoc basis and their services had been regularised having followed the Rule 33 of the related Service Rules, 1993, their substantive appointments should be treated from the date of initial appointment on ad-hoc basis and that was rightly done. The respondent Nos. 6, 7 and 8 had been appointed on the same date, the petitioner was appointed. But, having regard to the date of birth of respondent Nos. 6, 7 and 8, the authority rightly put the names of 6, 7 and 8 above the name of the petitioner in the finally published seniority list. 11. Under the aforesaid discussions and having regard to the decision taken by the Government while exercising power of relaxation pursuant to Rule 33 of the related Service Rules, 1993 vide Annexure-A appended to the counter affidavit filed by the State respondents. I am of the considered opinion that the finally published seniority list has been done in accordance with the aforesaid decision. Learned counsel for the petitioner submits that the APPSC while making recommendation for regularisation of the service of the petitioner and the private respondents alone with others specifically stipulated that names of the recommended candidates had been "in order of merit". Admittedly, the APPSC did not conduct any competitive examination followed by viva-voce test within the meaning of Rule 11 of the related Service Rules, 1993. What the APPSC conducted was the viva-voce test as prescribed by the Government vide order dated 13.5.94 in exercise of power under Rule 33 of the related Service Rules, 1993 and as such the insertion of the wordings "in order of merit" in the recommendation letter of the APPSC dated 28.6.94 appears to be misnomer. What the APPSC conducted was the viva-voce test as prescribed by the Government vide order dated 13.5.94 in exercise of power under Rule 33 of the related Service Rules, 1993 and as such the insertion of the wordings "in order of merit" in the recommendation letter of the APPSC dated 28.6.94 appears to be misnomer. Since the APPSC was never called upon to assess the merit position of the incumbents, it cannot incorporate any such words while making recommendation. The APPSC was asked to hold the viva-voce test only to find out the suitability of the respective in-service candidates who were appointed on ad-hoc basis for their regularisation with effect from the respective dates of appointment and as such the recommendation list of the APPSC is nothing but an assessment done by the Commission for absorption of the candidates on regular basis and not "in order of merit" as inserted therein. 12. Under the aforesaid discussions, I am of the considered opinion to hold that in preparing the impugned final seniority list, the authority committed no wrong or illegality, rather, the seniority list has been published in accordance with the individually issued substantive order of appointment on regular basis and that regularisation had been done with reference to the respective dates of initial appointment of the incumbents on ad-hoc basis, pursuant to the decision adopted by the Government in exercise of power under Rule 33 of the related Service Rules, 1993 and as such it requires no interference in this writ petition. 13. In the result, the writ petition being devoid of merit is hereby dismissed. No order as to cost. Interim order granted on 9.9.01 stands vacated.