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2002 DIGILAW 845 (ALL)

BRAHAM SHANKER TRIPATHI v. STATE OF U. P.

2002-07-15

M.KATJU, RAKESH TIWARI

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M. KATJU, J. ( 1 ) THIS writ petition has been filed by the petitioner praying for a mandamus directing the respondents to count the petitioners ad hoc service from 16. 2. 1973 to 4. 5. 1981 towards his total length of service for preparing the seniority list. ( 2 ) WE have heard learned counsel for the parties. ( 3 ) IN para 3 of the petition, it is stated that 30 posts were advertised for making ad hoc appointments on Group II posts under U. P. Subordinate Agriculture Service Rules, 1977. The petitioner applied and was selected amongst others vide order dated 7. 2. 1973, Annexure-1 to the writ petition. The petitioner joined on 16. 2. 1973 as Soil Conservation Inspector in pursuance of the above appointment letter. ( 4 ) IN para 9 of the petition, it is stated that the Group II posts were advertised by the U. P. Public service Commission for regular appointment in 1977-78 and the petitioner applied and was duly selected and was given appointment letter dated 4. 5. 1981 vide Annexure-4 to the petition. The petitioner was promoted from Group II to Group I post. i. e. , from the post of Horticulture inspector to Senior Horticulture Inspector vide order dated 27. 5. 1984, Annexure-5 to the petition. A tentative seniority list was published in 14. 3. 1990 of Group-II employees and the petitioners seniority was at serial No. 101 and his date of appointment was shown as 4. 5. 1981, and his ad hoc service on the said post from 16. 2. 1973 was ignored. A true copy of the tentative seniority list is Annexure-6 to the petition. Without finalising the tentative seniority list of Group ii. the respondents published another tentative seniority list dated 30. 4. 1991 of Group I in which also the petitioners service from 16. 2. 1973 were not counted vide Annexure-7 to the petition. The petitioner filed objections against both these tentative seniority list, vide Annexure-8 to the petition but the same have not been decided. True copies of the reminders are Annexures-9 and 10 to the petition. In para 15 of the writ petition it is stated that the petitioner has been given regular increment since 16. 2. 1973. The petitioner was given officiating appointment as District horticulture Officer by order dated 12. 8. 1999 Annexure-12 to the writ petition. True copies of the reminders are Annexures-9 and 10 to the petition. In para 15 of the writ petition it is stated that the petitioner has been given regular increment since 16. 2. 1973. The petitioner was given officiating appointment as District horticulture Officer by order dated 12. 8. 1999 Annexure-12 to the writ petition. It is alleged in para 19 of the petition that the work of the petitioner is outstanding and he was given special appreciative entry dated 6. 2. 2001 vide Annexure-13 to the writ petition. However, subsequently the charge of District Horticulture Officer was taken away from the petitioner without any rhyme and reason and posts are lying vacant. It is alleged in para 21 of the petition that 30 posts of district Horticulture Officers are vacant and promotions are to be made accordingly. In para 22 of the petition it is stated that the tentative seniority lists has not been finalised and the petitioners objections have not been decided. ( 5 ) AGGRIEVED this writ petition has been filed. ( 6 ) A counter-affidavit has been filed by the respondents. We have perused the same. It is not disputed that the petitioner has been working since 16. 2. 1973. However, it is disputed by the respondents that the petitioner is entitled to seniority from 16. 2. 1973. ( 7 ) RULE 5 of the relevant rules states : "subject to general control of the Government recruitment in service whether in substantive or in officiating vacancies or to temporary post should be made by the Director of Agriculture U. P. " ( 8 ) THUS it is clear that appointment can be made on officiating capacity and hence the ad hoc appointment of the petitioner from 16. 2. 1973 was in accordance with the rules. In fact the government had advertised 30 posts for ad hoc appointment in Group II posts and the petitioner was selected and appointed against one of these posts on 7. 2. 1973. ( 9 ) AS stated in para 5 of the writ petition, initially the Horticulture and Agriculture Department were one but subsequently, they were bifurcated in 1974 and two departments were created. No option was called for from the employees and the petitioner continued in Agriculture department. The petitioner has done Master of Science in Horticulture in First Class. 1973. ( 9 ) AS stated in para 5 of the writ petition, initially the Horticulture and Agriculture Department were one but subsequently, they were bifurcated in 1974 and two departments were created. No option was called for from the employees and the petitioner continued in Agriculture department. The petitioner has done Master of Science in Horticulture in First Class. It was contended that he should have been posted in Horticulture Department but he continued in Soil conservation Section. After completing 3 years service in Group II, he applied for posting in group I in Horticulture Section but the Director of Horticulture instead of appointing him in group I gave him ad hoc appointment in Group II. It is alleged in the rejoinder-affidavit that since the petitioner was working on ad hoc basis in Group II since 16. 2. 1973 his service should be counted from that date. ( 10 ) IN para 5 of the rejoinder-affidavit, it is also stated that one Shesh Narain Tewari who was ad hoc appointee was placed at serial No. 34 while the petitioner was placed at serial No. 101 in the tentative seniority of Group II. The date of joining of service of Shesh Narain Tewari was shown as 20. 2. 1973 but the petitioners date of appointment was shown as 4. 5. 1981. Similarly, one ramesh Singh Tomar who was ad hoc appointee in Group II was promoted to Group I in 1976 just in one year. This, in our opinion, shows discrimination against the petitioner. ( 11 ) IN our opinion, the submission of learned counsel for the petitioner is correct. The facts of the case are covered by the Supreme Court decision in Union of India v. Lalita Rao, 2001 (5) SCC 384 , The question is whether the ad hoc service is to be added to the total length of service. Since there is no provision in the relevant rules for determining the seniority of the employees in service, the principle laid down by the Supreme Court in Direct Recruit Class II Engineering officers Association v. State of Maharashtra, 1990 (2) SCC 715 , have to be followed. In that decision, the Supreme Court has held that where a person is appointed according to the Rules his seniority is to be computed from the date of appointment and not from the date of confirmation. In that decision, the Supreme Court has held that where a person is appointed according to the Rules his seniority is to be computed from the date of appointment and not from the date of confirmation. In the present case, the petitioner was appointed on ad hoc capacity in accordance with Rule 5 of the U. P. Subordinate Agriculture Service Rules, 1977 after selection against posts which were advertised. Hence in our opinion the petitioners service from 16. 2. 1973 to 4. 5. 1981 has to be added to the petitioners total length of service for the purposes of seniority and his position in seniority will be fixed accordingly. ( 12 ) THE writ petition is allowed. No orders as to costs. .