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2002 DIGILAW 1561 (RAJ)

Prem Chand Sharma v. State of Rajasthan

2002-09-09

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 12.11.1991 against the respondents with the prayer that by an appropriate writ, order or direction, the petitioner be substantively appointed on the post of Revenue Officer Gr. II with effect from the date of his initial appointment (it is surprising that in this petition, the date of initial appointment of the petitioner has not been mentioned, but the same is 17.11.1977, which is evident from Anex. R/8/9 filed by the respondent No. 8 along with the reply) and further, the respondents No.I and 2 be directed to assign seniority to the petitioner by taking him to be substantively appointed with effect from the date of his initial appointment, i.e. 17.11.1977, with all consequential benefits and thereafter, he be given promotion as per his seniority and the order dated 29.10.1991 (Annex. 2) reverting the petitioner as Executive Officer (Class IV) be declared illegal and be quashed and set aside. 2. Before stating the necessary facts of the present writ petition, it may be stated here with caution that from perusing the writ petition as a whole, the relevant facts have not come out and therefore, from going through the replies filed by the various respondents, some facts have come out in picture and thus, the necessary facts are enumerated in the following manner which are necessary for the disposal of this writ petition: (i) That the petitioner was appointed as Revenue Officer Gr. II by the respondent No.2 Director, Local Bodies, Rajasthan, Jaipur through order dated 17.11.1977 (Annex. R/8/9 filed by the respondent No.8 alongwith the reply) under the provisions of Rules 26(2) and 27 of the Rajasthan Municipal Service Rules, 1963 (hereinafter referred to as "the Rules of 1963") on temporary basis for a period of six months or till duly selected persons were made available by the Rajasthan Public Service Commission, whichever was earlier. (ii) That, thereafter, the petitioner continued on the post of Revenue Officer Gr. II even after the expiry of period of six months. (iii) That since the petitioner did not qualify the tests conducted by the Rajasthan Public Service Commission in the years 1979 and 1986 and failed on both occasions, therefore, his services were terminated vide order dated 12.12.1986 (Annex. II even after the expiry of period of six months. (iii) That since the petitioner did not qualify the tests conducted by the Rajasthan Public Service Commission in the years 1979 and 1986 and failed on both occasions, therefore, his services were terminated vide order dated 12.12.1986 (Annex. R/I filed by the respondents No.1 and 2 alongwith the reply) and at that time, the petitioner was holding the post of Revenue Officer Gr. II. Municipality, Dungarpur. By the same order Annex. R/l, the persons who qualified the tests conducted by the Rajasthan Public Service Commission, were appointed as Revenue Officer Gr. II. It is surprising that these facts were not mentioned by the petitioner in this writ petition. (iv) That thereafter, through another order dated 15.12.1987 (Annex. R/2) issued by the respondent No.2., Director, Local Bodies, Rajasthan, Jaipur, the petitioner was again appointed as Executive Officer (Class IV) on adhoc temporary basis for a period of one year or till duty selected candidates were made available by the Rajasthan Public Service Commission, whichever was earlier and he was posted at Badi Sadri. Thus, through Annex. R/2 one more opportunity was given to the petitioner to get himself selected by the Rajasthan Public Service Commission. (v) That from perusing Annex. R/8/6 dated 7.12.1982, it further appears that the petitioner was suspended on 14.12.1981, but the suspension order was revoked on 7.12.1982 and this fact has also not been mentioned by the petitioner in this writ petition. (vi) That through Notification dated 18.3.1991 (Annex. 6), amendment in the Rules of 1963 was made and after item (v) of second Proviso to Rule 7 of the Rules of 1963, new item (vi) was added, which reads as follows : (vii) That the name of Executive Officers Class IV and Revenue Officers Order 11 appointed vide Rule 27 temporarily or in officiating capacity upto 31.3.1979, shall be referred to the Commission to adjudge their suitability according to the qualifications etc. prescribed at the time of their appointments and their appointments shall be terminated immediately in case they are not adjudged suitable." (viii) That from perusing the Order dated 29.10.1977 (Annex. 11), it appears that on being found suitable by the Rajasthan Public Service Commission on 5.8.1995, the petitioner was regularly appointed on the post of Revenue Officer Gr. prescribed at the time of their appointments and their appointments shall be terminated immediately in case they are not adjudged suitable." (viii) That from perusing the Order dated 29.10.1977 (Annex. 11), it appears that on being found suitable by the Rajasthan Public Service Commission on 5.8.1995, the petitioner was regularly appointed on the post of Revenue Officer Gr. II with effect from 18.3.1991 on probation for a period of six months and after completion of six months probation period, he was made permanent with effect from 18.9.1991. It was specifically mentioned in that order that the date of regular appointment of the petitioner shall be 18.3.1991 and the seniority will be determined accordingly. 3. On the above facts, the case of the petitioner is that his services on the post of Revenue Officer Gr. II should have been regularised with effect from 17.11.1977, the date of his initial appointment and thereafter, he should have been given all promotions as other persons were given taking into consideration the length of his service w.e.f. 17.11.1977 and thus, order Annex. 11 dated 29.10.1997 by which his services were regularised with effect from 18.9.1991 on the post of Revenue Officer Gr. II, is wholly illegal and in place of 18.9.1991, his services be regularised with effect from 17.11.1977, with all consequential benefits. 4. On the contrary, the case of the respondents is that the services of the petitioner were rightly regularised on the post of Revenue Officer Gr. II with effect from 18.9.1991. 5. 1 have heard the learned Counsel appearing for the petitioner and the learned Counsel appearing for the respondents and gone through the materials available on record. 6. In this case, there is no dispute on the point that through order Annex. R/8/9 dated 17.11.1977 under Rules 26(2) and 27 of the Rules of 1963, the petitioner was initially appointed on the post of Revenue Officer Gr. II on temporary basis for a period of six months or till duly selected candidates were made available by the Rajasthan Public Service Commission, whichever was earlier. 7. The relevant provisions of Rule 27 of the Rules of 1963 read as follows: "27. II on temporary basis for a period of six months or till duly selected candidates were made available by the Rajasthan Public Service Commission, whichever was earlier. 7. The relevant provisions of Rule 27 of the Rules of 1963 read as follows: "27. Temporary or officiating appointments (1) A vacancy in the service may be temporarily filled by the Appointing Authority by appointing thereto in an officiating capacity an officer whose name is included in the list prepared under Rule 21 or in the lists under Rule 25: Provided ............ Provided further........ (2) No appointment made under sub-Rule (1) shall be continued beyond a period of one year without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur." 8. Thus, Rule 27 of the Rules of 1963 clearly provides that such an appointment which is officiating in nature, shall not be continued beyond a period of one year without referring it to the Commission for their concurrence and if that concurrence was not obtained, it shall be terminated immediately on their refusal to concur. 9. In the present case, the petitioner appeared twice in the tests conducted by the Rajasthan Public Service Commission in the years 1979 and 1986, but on both occasions, he failed which is evident from the order Annex. R/1 dated 12.12.1986 and that is why, his services were terminated. Therefore, to say that the petitioner was continuously holding the post of Revenue Officer Gr. II with effect from the date of his initial appointment, i.e. 17.11.1977 is wrong one. 10. There is also no dispute on the point that again through order Annex. R/2 dated 15.12.1987, the petitioner was appointed as Executive Officer (Class IV) on adhoc temporary basis for a period of one year or till regularly selected candidates were made available by the Rajasthan Public Service Commission whichever was earlier and there is also no dispute on the point that after that appointment, no further extension has been given, but he continued on that post. 11. Therefore, in these circumstances, it can easily be said that the petitioner remained continued on the post of Executive Officer (Class IV) even after the expiry of one year without further extension of period of his services and without and consequence of the Rajasthan Public Service Commission. 11. Therefore, in these circumstances, it can easily be said that the petitioner remained continued on the post of Executive Officer (Class IV) even after the expiry of one year without further extension of period of his services and without and consequence of the Rajasthan Public Service Commission. Thus, appointment of the petitioner cannot be termed as according to the Rules of 1963 and especially after expiry of period of one year, the appointment of the petitioner in all respects would be against Rule 27 of the Rules of 1963. The period of officiating appointment is only one year and after expiry of one year, the appointment of such person becomes irregular one though not illegal one, but it can be concluded that appointment of the petitioner after expiry of one year from the date of his second appointment, i.e. 15.12.1987 becomes irregular one and it became regular only when he was found suitable by the Rajasthan Public Service Commission and regularly appointed w.e.f. 18.3.1991 through order Annex. 11 dated 29.10.1997. The petitioner was regularly appointed on 18.3.1991 on probation for a period of six months and after completion of period of six months probation, he was confirmed with effect from 18.9.1991 through Annex. 11 dated 29.10.1997. 12. In Rule 27 of the Rules of 1963, the words temporary or officiating appointments are mentioned. 13. In Arun Kumar Chatterjee v. South Eastern Railway, AIR 1985 SC 482 [1985(1) SLR 500 (SC)] , the Hon'ble Supreme Court had the occasion to consider the ordinary connotation of the words officiating and temporary and the Hon'ble Supreme Court observed that according to its ordinary connotation, the word "officiating" is generally used when a servant having held one post permanently or, substantively is appointed to a post in a higher rank, but not permanently or substantively, while still retaining his lien on his sustantive post i.e. officiating in that post till his confirmation. Such officiating appointment may be made when there is a temporary vacancy in a higher post due to the death or retirement of the incumbent or otherwise. In contrast, the word "temporary" usually denotes a person appointed in the civil service for the first time and the appointment is not permanent but temporary, i.e. for the time being, with no right to the post. 14. In contrast, the word "temporary" usually denotes a person appointed in the civil service for the first time and the appointment is not permanent but temporary, i.e. for the time being, with no right to the post. 14. In my considered opinion, where the appointment of an employee was made on temporary basis and was continuing as such, it does not make him a permanent employee when the Rules required other formalities, for example, confirmation etc. to be fulfilled. 15. In the present case, no doubt the petitioner was continuing as such after his second appointment as Executive Officer (Class IV) through order Annex. R/2 dated 15.12.1987, but he cannot be treated permanent because other formalities have not been fulfilled by the petitioner. 16. Now the question for determination is whether seniority of the petitioner should be counted from the date when he was initially appointed (in this case, there are two dates of initial appointments i.e. 17.11.1977 and 15.12.1987) or from the date when he was found suitable by the Rajasthan Public Service Commission and regularly appointed with effect from 18.3.1991 through Annex. 11 dated 29.10.1997. 17. The above question has to be answered keeping in mind that both the initial appointments of the petitioner after expiry of one year were not found regular one and not in accordance with the Rules of 1963. 18. In my considered opinion, where initial appointment is only adhoc, made as stop gap arrangement and not according to the Rules, the period of officiating services would not be counted. Therefore, in the present case, since the petitioner was first appointed on 17.11.1977 and thereafter, his services were terminated, therefore, after termination, the period from 17.11.1977 till the date of termination cannot be considered in any manner. This is one of the aspects of the matter. Furthermore, the petitioner was appointed second time for one year through order dated 15.12.1987 (Annex. Rt2) and his appointment after one year, as already stated above, was irregular one and was not in accordance with the Rules of 1963, therefore, his seniority cannot be counted from 15.12.1987, but from the date when he was found suitable by the RPSC and regularly appointed with effect from 18.3.1991 through order Annex. I 1 dated 29.10.1997. 19. Rt2) and his appointment after one year, as already stated above, was irregular one and was not in accordance with the Rules of 1963, therefore, his seniority cannot be counted from 15.12.1987, but from the date when he was found suitable by the RPSC and regularly appointed with effect from 18.3.1991 through order Annex. I 1 dated 29.10.1997. 19. When this being the position, the argument that since the petitioner continued on the post till regular appointment, therefore, period of officiating service should be counted is not tenable and the same is rejected. 20. Law of Hon'ble Supreme Court if initial appointment is not made according to Rules. (A) In Masood Akhtar Khan and ors. v. State of Madhya Pradesh and ors., (1990)4 SCC 24 ) : [1990(5) SLR 639 (SC)] the Hon'ble Supreme Court held that seniority should be counted not from the date of initial stop gap appointment but from the date of regular selection under the Rules. It was further held that if the initial appointment is not made according to the Rules, subsequent regularisation of service of an employee does not entitle him to the benefit of intervening service for seniority. (B) In Excise Commissioner, Karnataka and anr. v. V. Sreekanta ( AIR 1993 SC 1564 ) : [1993(2) SLR 339 (SC)] , it was held by the Hon'ble Supreme Court that seniority would be counted from the date of regularisation and not from the date of initial appointment on adhoc basis. (C) In Ram Ganesh Tripathi and ors. v. State of UP and ors., (1997)1 SCC621 [1996(7) SLR 12 (SC)] , the Hon'ble Supreme Court held that adhoc employees whose services were subsequently regularisation could not for the purpose of promotion or selection grade be treated as regularly appointed or granted seniority, from a date earlier than the date of their regularisation. (D) In Union of India v. S.K. Sharma, (1992)2 SCC 728 : [1992(2) SLR 373 (SC)] , it was held by the Hon'ble Supreme Court that adhoc service cannot be counted for determining seniority and the order granting arrears of pay and allowances for actual working on the post on adhoc basis would not confer any right to claim seniority on the post by reckoning the adhoc service. (E) In State of Tamil Nadu and anr. (E) In State of Tamil Nadu and anr. v. E. Paripoornam and ors., AIR 1992 SC 1823 : [1992(6) SLR 730 (SC)] , the Hon'ble Supreme Court held that temporary service of candidates cannot be counted for determining seniority. (F) In Chief of Naval Staff and anr. v. G. Gopalkrishna Pillai and ors., (1996)1 SCC 521 :[1996(l) SLR 631 (SC)] , where the adhoc appointment made without selection by a regularly constituted selection body and it was held by the Hon'ble Supreme Court that such adhoc appointment even though uninterruptedly followed by regularisation in the same post would not count towards seniority. 21. Thus, from the above rulings of the Hon'ble Supreme Court, it is very much clear that where the adhoc or stop gap emergency appointments are made pending regular selection by a regularly constituted selection body, such adhoc or stop-gap emergency appointments even though uninterruptedly followed by regularisation in the same post, would not count towards seniority. The seniority would be counted from the date of regular selection and not from the date of initial adhoc or stop gap emergency/temporary appointments. 22. When this being the position, the whole case of the petitioner that the service rendered by him on officiating basis with effect from 27.11.1977 or 15.12.1987 should be counted while determining seniority and he should be assigned seniority from the date of his initial appointment and not from the date of regular appointment, falls to ground. 23. Before proceeding further, one thing has to be made clear that if initial appointment is according to Rules, in that case seniority should be reckoned from the date of initial appointment and not from the date of confirmation and for that authority of Hon'ble Supreme Court in the case of Rudra Kumar Sain and ors. v. Union of India and Ors., (2000 SCC (L & S) 1055): [2000(4) SLR 787 (SC)] may be referred to. The position in the present case is otherwise in the manner that as the initial appointment of the petitioner was not found in accordance with the Rules of 1963, therefore, seniority cannot be given to the petitioner from the date of initial appointment. 24. For the reasons stated above, there is no merit in this writ petition and the same is liable to be dismissed.Accordingly, this writ petition filed by the petitioner is dismissed. No order as to costs.Petition dismissed. *******