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2004 DIGILAW 352 (JK)

Bharat Bushan Sharma v. State

2004-12-15

Y.P.NARGOTRA

body2004
As per the case of the petitioner he was appointed as Junior Engineer (Civil) on a consolidated salary of Rs. 600/-PM by order of the Government dated 10.2.1984 on work charge basis. He continued to serve on work charge on consolidated salary of Rs. 600/- until Govt. order No. 175-PW of 1992 dated 30.4.1992 came to be passed. By this order the Government accorded sanction to the appointment on regular temporary basis of the candidates forming annexure II to the Government order which included the name of the petitioner also. On being so appointed regularly and substantively, service of the petitioner for the purpose of seniority is being reckoned with effect from 1.5.1992. The grievance of the petitioner is that his service rendered on work charge basis from 11.2.1984 up to 30.4.1992 be also reckoned. He made several representations but no action has been taken thereon, hence he has filed the present petition. 2. The post of Junior Engineer is a non-Gazetted post. Before making recruitment, the post was never advertised and the petitioner was appointed on work charge basis on consolidated salary of Rs. 600/-PM. Admittedly the petitioner has not faced any selection process for being recruited to the post. His appointment therefore is not according to rules. Whether such service can be counted for the purpose of seniority? 3. Learned Counsel for the petitioner submits that that service has to be counted for the purpose of seniority. In support of his contention he relies upon case, Narinder Chadha v. Union of India, AIR 1986 SC 638 wherein their lordships have held as follows:-- @SUBNS = "When an officer has worked for a long period for nearly fifteen to twenty years in a post and had never been reverted it cannot be held that the officers continuous officiation was a mere temporary local or stop gap arrangement even though the order of appointment may state so. In such circumstances the entire period of officiation has to be counted for seniority. Any other view would arbitrary and violative of Arts. In such circumstances the entire period of officiation has to be counted for seniority. Any other view would arbitrary and violative of Arts. 14 and 16(1) of the constitution because the temporary service in the post in question is not for a short period intended to meet some emergent or unforeseen circumstances Cl (b) of R 9C of the Rules which deals with the question of seniority of promotees becomes irrelevant in the circumstances of such a case as regards the promotees who have been holding the posts from a long time." Their lordships further observed:-- @SUBNS = "The continuance of the promotees could be justified on the basis of the R 16 on the assumption that the Government had relaxed the rules and appointed them to the posts in question to meet the administrative requirement." 4. On the basis of the aforesaid authority learned Counsel for the petitioner submits that the petitioner in the present case has continuously worked as Junior Engineer, may be on consolidated basis for a period of about eight years before regularization of his service and therefore that period in view of the law laid down has to be counted for the purpose of seniority. 5. The observations of their lordships, in my considered opinion, are not the ratio of the judgment. These observations have been made in the peculiar circumstances of the case, which was before their lordships. Their lordships have themselves pointed out in para 14 of the judgment as follows:- "But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reverted from that post. But in case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all, particularly where the Government is endowed with the power to relax the rules to avoid unjust results. In the instant case the Government has also not expressed its unwillingness to continue them in the said posts. In the instant case the Government has also not expressed its unwillingness to continue them in the said posts. The other contesting respondents have also not urged that the petitioners should be sent out of the said posts. The only question agitated before us relates to the seniority as between the petitioners and the direct recruits and such a question can arise only where there is no dispute regarding the entry of the officers concerned into the same grade. In the instant case there is no impediment even under the rules to treat these petitioners and others who are similarly situated as persons duly appointed to the posts in Grade IV because of the enabling provision contained in R. 16 thereof." 6. In the present case the claim of the petitioner if accepted would certainly affect the seniority of others who may have come to be appointed on substantive basis before regularization of the petitioner on the post of Junior Engineer. In Suraj Parkash v. State of J&K 2000(7) SCC 561 their lordships of the Supreme Court have stated the law as follows:- "These rulings cannot be applied to the case of the promotees. In fact the principle laid down in these cases is consistent with the principles in service jurisprudence so far as the adhoc service rendered by direct recruits before the date of their regular selection is concerned. Their service counts only from the date of regular appointment according to the rules and any adhoc/stopgap service rendered before regular selection cannot count for seniority." 7. The Apex Court in AIR 1996 SC 2904, Chief of Naval Staff v. G. Gopal Pillai, has also held that where initial appointment on adhoc basis was not made by regularly constituted body for holding selection of candidates but the employee had continuous officiation on adhoc post till his regular appointment on such post, it was held that seniority cannot be fixed giving benefit of continuous officiation on adhoc post. 8. The rule position governing the seniority of a person appointed to a service is governed by Rule 24 of C.C.A. Rules. 8. The rule position governing the seniority of a person appointed to a service is governed by Rule 24 of C.C.A. Rules. It reads as follows:- "The seniority of a person has to be reckoned from the date of his first appointment and the date of first appointment means first substantive appointment, meaning thereby the date of permanent appointment or date of first appointment on probation, on a clear vacancy, confirmation in the latter case being subject to good work and conduct or passing of any examination/examinations and/or tests." 9. In the present case that date of first substantive appointment of the petitioner is 30.4.1992 or the date on which he actually joined consequent to the passing of order dated 30.4.1992. The period of service spent by the petitioner on consolidated basis cannot be counted towards seniority because his appointment as such was dehors the rules. For the aforesaid reasons, there is no merit in the writ petition of the petitioner. Same is accordingly dismissed, alongwith connected CMPs.