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2002 DIGILAW 495 (GAU)

Ananda Ram Borah v. State of Assam

2002-12-19

AMITAVA ROY, P.P.NAOLEKAR

body2002
P.P. NAOLEKAR, C.J.— The appellants herein who are petitioners in the writ petition, had filed the writ petition challenging the final seniority list in respect of Lower Division Assistant of the Assam Secretariat, Dispur published on 18.12.1990, the appellate order and the orders of the Assam Administrative Tribunal. 2. The writ petition was filed on the allegation that the appellants have undergone one year apprenticeship training from 15.5.1976 to 15.5.1977 in the Assam Secretariat under the Apprenticeship Act, 1961. After completion of the training the appellants continued in service in the Assam Secretariat and discharging their duties. By order dated 27.12.1977 the State Government appointed the appellants and some other persons under Rule 8(1) of the Assam Secretariat Subordinate Service Rules, 1963 read with Rule 29 of the said Rules. The appellants were appointed temporarily and the appointment order contained that their inter se seniority will be determined later on. The appellants were encadered by office order dated 28.1.1986 and thereafter a provisional seniority list was prepared wherein appellants' names appear at Serial Nos. 519,521,523,524 and 531. The appellants made representations against the provisional seniority list. The Government after considering their representation by order dated 14/16.6.1990 altered the position of the appellants in seniority list placing them a Serial No. 95, 97, 99, 101 and 104 respectively. Again a representation was made by some persons, whose name appeared in the provisional seniority list to the Government and thereafter a final seniority list was again published putting the appellants at Serial Nos. 213, 215, 217, 219 and 222. The change in the seniority list being made without giving opportunity to the appellants, they approached the Government by way of representation. Their representations having been rejected by the State Government, they approached the Assam Administrative Tribunal, Guwahati by filing 5 appeals. Their appeals were rejected by the Assam Administrative Tribunal by order dated 22.4.1992. Aggrieved by the order of the Assam Administrative Tribunal, the writ petition i.e. Civil Rule No. 994/94 was filed. The learned Single Judge has directed that since the appellants' appointments were made relaxing the recruitment Rules under provisions of Rule 8(1) of the Rules their seniority should be counted from the date of appointment and the seniority list should be prepared taking into consideration the date on which the appellants were appointed. The learned Single Judge has directed that since the appellants' appointments were made relaxing the recruitment Rules under provisions of Rule 8(1) of the Rules their seniority should be counted from the date of appointment and the seniority list should be prepared taking into consideration the date on which the appellants were appointed. It is further directed that those direct recruits, who have been appointed after the appellant's appointment but already been promoted, should not be affected by this order. 3. The respondent Nos. 3 to 8 have challenged the order of the learned Single Judge in Civil Rule No. 994/92 by filing a review petition. The learned Single Judge by its order dated 23.5.2002 has set aside the order passed in Civil Rule No. 994/92 on the ground that Rule 29 of the Rules could not authorise the State Government to relax condition of recruitment spelt out by Rule 8, such exercise of powers and provision of relaxation is strictly prohibited by the law laid down by the Apex Court in the case of Suraj Prakash Gupta-Vs-State of Jammu and Kashmir, (2000) 7 SCC 56 L As the learned Judge has taken a view that the conditions of service and recruitment can also be relaxed in exercise of power conferred under Rule 29, the judgment pronounced by the learned Single Judge in Civil Rule No. 994/92 is vitiated by the error apparent on the face of the record. With this findings, the judgment passed by the learned Single Judge was set aside. The result following the review petition was that the original seniority list prepared by the Government was restored back. Aggrieved by the said order, the petitioners have filed this appeal. 4. It is the submission of the learned counsel for the appellant that in pursuance of Rule 29 of the Assam Secretariat Subordinate Service Rules, 1963, the appointments of the appellants have been made in relaxation of Rule 8 of the recruitment Rules, after taking into consideration their continuous service in the department after obtaining apprenticeship certificate and also taking into consideration the factum that they are trained persons, the Government should apply the normal Rule of consideration of seniority from the date of appointment. It is also submitted by the learned counsel that at the relevant time, when the condition for recruitment was relaxed, the decision of the Apex Court goes to show that such power vests with the Government and, therefore, the decision pronounced by the Apex Court in Suraj Prakash Gupta (supra) at a later date would not be made applicable in the cases of the appellants. On the other hand, it is submitted by the learned counsel for the respondent that the Government has no authority to relax the condition of recruitment, although it may change the conditions of service and thus if any power is exercised by the Government under Rule 29, it will be contrary to the powers vested in the Government. Appellants' appointment being dehors the Rule, they cannot be considered senior to the persons directly recruited in accordance with the Rules. 5. The appellants who were working as apprentice were appointed temporarily until further orders as Lower Division Assistants (LDA) in the Assam Secretariat, Dispur by order dated 27.12.1977 and posted in the departments. The appointments were made under Rule 8(1) of the Assam Secretariat Subordinate Service Rules, 1963 (hereinafter shortly referred to as "the 1963 Rules") read with Rule 29 of the said 1963 Rules. The appointment order dated 27.12.1977 says that inter se seniority of the candidates will be determined later on. The appointment order also says that their appointment may be terminated at any time without any notice and without assigning reason thereof. It is apparent from this order that the appointment were made under Rule 8 of 1963 relaxing the said Rule in exercise of powers under Rule 29. The appointment order reflects that the appointment of the appellants were of temporary nature as it says that their services could be terminated at any time without notice and without assigning any reason. 6. The appointment order reflects that the appointment of the appellants were of temporary nature as it says that their services could be terminated at any time without notice and without assigning any reason. 6. Rule 8 of the 1963 Rules provides for appointment on the post of Lower Division Assistant, which has to be made by direct recruitment (1) on the basis of competitive examination, (2) by selection from amongst the typists of the Secretariat who are Matriculate or passed equivalent examination and have rendered at least 4 years of continuous service, (3) by selection from amongst the Grade IV staff and Record Suppliers of the Secretariat who have passed Matriculation examination or Higher School Leaving Certificate Examination and/or Higher Secondary or equivalent examination and have rendered at least 7 years continuous service in the Secretariat on the first day of the year in which the selection is made. The appellants not being the Typists or Grade IV staff and/or record suppliers of the Secretariat could not have been appointed by selection. Their appointment to the post of LDA could only be made by direct recruitment on the basis of competitive examination. Competitive examination is the only mode provided under the 1963 Rules for direct recruitment to the post of LDA. Rule 29 is in regard to the power of the Government to dispense with or relax any Rule, which reads:- "29. Power of Government to dispense with or relax any Rule:- Where the appointing authority is satisfied that the operation of any of these Rules would cause undue hardship in a particular case, he may dispense with or relax the requirement of that Rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. Provided that the case of any person shall not be dealt with in any manner leas favourable to him than that provided in any of these Rules." 7. Under Rule 29 if the appointing authority is satisfied that operation of any of the 1963 Rules would cause undue hardship, the appointing authority can dispense with or relax the requirement of that Rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. Under Rule 29 if the appointing authority is satisfied that operation of any of the 1963 Rules would cause undue hardship, the appointing authority can dispense with or relax the requirement of that Rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. The power to relax a particular Rule could be exercised by the appointing authority on its satisfaction that a particular case requires special treatment to provide just and equitable relief to a person or persons concerned. The question, which call for determination by this whether the power to relax the Rule go to the extent of relaxing conditions &$ recruitment also or it can be only that extent of relaxing the conditidns of service? Can a direct recruit for the post of LDA avoid competitive examination? Can the exercise power of relaxation recruitment requiring a direct appear in the competitive examination and such relaxation of the is permissible in Keshab Vs-Union of India, reported in (1) SCC 272, the Apex emphasised the need of strict competition of the recruitment Rules for both recruits and promotees. cannot be any relaxation of the fundamental Rules of recruitment that was a case where the Rule relaxation of conditions of s for consideration and it was held' by Judges Bench that the Rule did relaxation of the recruitment Rule. Khalid Rizvi-Vs-Union o Supp. (3) SCC 575, the observed". The condition precedent^ therefore, is that there should be in appointment to the service in accordance with Rules and by operation of the Rules undue hardship has been caused, it is already held that the condition of recruitment and conditions of service distinct and the latter is preceded by appointment according to Rules. former cannot be relaxed." Thus, according to the Apex Court there is distinct between the conditions of recruitment and conditions of service. Appointment has to in accordance with the Ruled and, thereafter, there is no relaxation in the service condition. Similarly, in State of Orissa- Vs- Suko Mi Mohapatra, (1993)2 SCC486, it was though the power of relaxation Stated in the Rule. The conditions and conditions of service are distinct. The Government has the to relax conditions of service, the conditions of recruitment be relaxed even though the Rule intends to do so. Similarly, in State of Orissa- Vs- Suko Mi Mohapatra, (1993)2 SCC486, it was though the power of relaxation Stated in the Rule. The conditions and conditions of service are distinct. The Government has the to relax conditions of service, the conditions of recruitment be relaxed even though the Rule intends to do so. In the present case, admittedly the appellants were not Appointed on the post of LDA after competitive examination. Their appointments were made relaxing the Rule of appointment exercising the powers . The power to relax cannot accede to the conditions of recruitment, which is competitive examination. As no competitive examination was held, appointment of the appellants cannot be said to be in conformity with the 1963 Rules, The appointment order itself indicates the nature of appointment, which says that the appointments may be terminated at any time without notice and without assigning any reason. The appointment itself appears to be temporary in nature. Such an appointee cannot be placed senior over the persons who have been recruited in the service in accordance with the service Rules. The appellants having not been appointed in accordance with the Rules cannot claim seniority over the persons who have been regularly recruited in accordance with the service Rules. The claim made by the appellants for assigning seniority from the date of their appointment cannot be entertained. The judgment and order dated 23.5.2002 passed by the learned Single Judge in Review Application No. 100/2000 does not require any interference by us. The appeal fails and is dismissed. However, there shall not be any order as to costs.