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2003 DIGILAW 1195 (PAT)

Ram Ratan Singh v. Patna Municipal Corporation

2003-11-20

R.S.GARG

body2003
Judgment 1. Heard leaned counsel for the parties. 2. The short facts leading to the present writ application are that the petitioner, a Sanitary Inspector, is aggrieved by the publication of the final seniority list. According to him, he would figure senior to the respondent nos. 12 to 20 while he has been shown junior to them. 3. According to the petitioner, he was appointed on 8.1.1975 as a daily wager and thereafter under annexure-2 he was appointed on probation as a Sanitary Supervisor. 4. At this very stage, I, propose to deal with the objections raised by the otherside. According to the respondents, the appointment of the petitioner was absolutely ad hoc and temporary and, therefore, from 14.8.1976, the date of his joining or from the date of the order the petitioner could not be treated in regular cadre. 5. A fair perusal of annexure-2, letter no. 286/swasth dated 31.7.1976 would clearly show that the petitioner was appointed on a scale of Rs. 180/- as a Sanitary Supervisor on probation for a period of two years. It would be incorrect to say that the petitioner was appointed temporarily. A probationer as is known to the service law would continue to be a temporary employee during the period of probation because his services are to be examined, his work is to be scrutinised and if he is found fit only then he would be confirmed. A probationer, however, is somewhat different than a temporary employee, though a probationer has the services temporarily. Under these circumstances, even at this stage, I hold that the petitioner was not a temporary employee but was on probation for a period of two years. 6. The petitioner had joined the services of 12.8.1976 and thereafter with the permission of the department passed the examination conducted by the Public Health Institute, a recognised body and came out with the flying colours on 29.3.1983. Under annexure-5, with effect from 18.1.1984 his services were regularised as Sanitary Supervisor and thereafter he was appointed Sanitary Inspector with effect from 1.2.1986 under annexure-6. A dispute arose between the petitioner and some others as to who would be the senior, therefore, the petitioner came to this Court in C.W.J.C. No. 6071 of 1996. This Court disposed of the said writ application, inter alia, directing that the case of the petitioner shall be considered by the Department/Respondents-Corporation. A dispute arose between the petitioner and some others as to who would be the senior, therefore, the petitioner came to this Court in C.W.J.C. No. 6071 of 1996. This Court disposed of the said writ application, inter alia, directing that the case of the petitioner shall be considered by the Department/Respondents-Corporation. According to the petitioner, the matter was not considered within the time-frame, therefore, a contempt application being M.J.C. No. 2316 of 1998 was filed, but before the final disposal of the said application the Patna Municipal Corporation issued an order on 13.9.2000 giving tentative promotion to the petitioner putting certain embargo and condition, therefore, the said contempt application was dismissed on 2.5.2001. The cases of the petitioner and others under the directions of this Court were required to be considered. The petitioner had raised two objections before the Authority. His first objection was that he was not a temporary employee nor he was appointed temporarily as a temporary employee with effect from 12.8.1976, but he was appointed on probation for a period of two years, therefore, the period of probation would join to his regular services and the same would be counted. His further submission was that the pay scale of the Sanitary Supervisor and the Vaccinator/Inoculator was different, therefore, in accordance with the Government circular the petitioner would be treated senior to these Vaccinators/ Inoculators. 7. Vide annexure-10 the proceedings dated 14.12.2001 before considering the objections raised by number of the employees the Corporation decided the general principles. So far as the principles no. 2 and 3 are concerned, the petitioner is still aggrieved. According to the principle no. 2, there has to be a combined seniority list of the Sanitary Inspectors/Vaccinators/ Inoculators. The petitioner submits that the Government circular on the subject is very clear and clearly holds that a person getting less pay on the substantive post would be deemed to be junior and under such circumstances the petitioner would become senior. So far as the general principle no. 3 is concerned the Corporation has relied upon a State circular dated 13.7.1971 to observe that if somebody was appointed on ad hoc basis then the period spent by him as an ad hoc employee would not be treated to be in continuous services and that period has to be given a go by. 3 is concerned the Corporation has relied upon a State circular dated 13.7.1971 to observe that if somebody was appointed on ad hoc basis then the period spent by him as an ad hoc employee would not be treated to be in continuous services and that period has to be given a go by. Placing strong reliance on the circular of the State Government, the petitioner submits that the petitioner was not an ad hoc and as he was appointed as a probationer the period spent as a probationer will have to be counted in his services. 8. Learned counsel for the Corporation, on the other hand, submitted that so far as the petitioners appointment is concerned, it will have to be taken from a particular date when the regular appointment was given and any period spent as a probationer would not be included in his service. Relating to the combined seniority list after going through the circular of the State Government, it is contended that there appears to be some wrong on the part of the Corporation. 9. The State Government through its Personnel and Administrative Reforms Department had issued a circular no. 3/R 1- 107/75-18990 dated 22nd October, 1975 wherein it has been clearly mentioned that when a person is appointed on probation and another person is appointed temporarily or ad hoc then even if the person appointed temporarily is regularsied earlier then too on subsequent regularisation of the probationer, the probationer would be deemed to be senior. In accordance with the said circular, I find no difficulty in holding that the petitioner would figure senior to any person who was appointed temporarily on probation after 12.8.1976. 10. So far as the combined list of Sanitary Inspectors and Vaccinators/ Inoculators is concerned, it cannot be allowed to stand in the light of yet another circular issued by the State Government through its Personnel and Administrative Reforms Department contained in circular no. 3/R 1-106/72-P-15784 issued on 26.8.1972. In the said circular it has been clearly mentioned in paragraph 3(iv)(g) that if there is no settlement of seniority or there are no principles governing the fixation of the seniority then any person who is drawing more salary in his basic cadre would be deemed to be senior to any person who is drawing less basic salary in his substantive cadre. 11. Undisputedly, the petitioner was drawing Rs. 11. Undisputedly, the petitioner was drawing Rs. 950/- in his basic cadre while the Vaccinators/lnoculators were drawing Rs. 825/- in their basic cadre. I am unable to appreciate the stand taken by the respondent and am persuaded in view of the submission made by the petitioner. 12. Consequently, I allow this writ application and hold that the period spent by the petitioner as a probationer would be included in his services and as he was in the cadre of Rs. 950/- and the Vaccinators/ Inoculators were in the cadre of Rs. 825/-, the would be senior to the Vaccinators/ Inoculators. 13. The petition is allowed.