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2006 DIGILAW 302 (GAU)

Tsering Doka v. State of Arunachal Pradesh

2006-03-28

BIPLAB KUMAR SHARMA, D.BISWAS

body2006
JUDGMENT B.K. Sharma, J. 1. The issue raised in this writ appeal is in respect of seniority between two sets of employees who entered into the service through the same very of selection. While it has been agreed by both the parties that seniority is normally required to be determined on the basis of the merit positions obtained in the regular selection, but it is the contentions of the Appellants that having regard to the facts and circumstances peculiar to the instant case, the learned Single Judge was wrong in holding that the Respondent Nos. 6 to 11 would rank senior to the Appellants on the basis of their respective merit positions in the regular selection. 2. The facts are not in dispute, but it is the principle on basis of which the seniority between the two groups is required to be determined. The Government of Arunachal Pradesh in the Department of Rural Development, inviting applications for the posts of Assistant Project Officer ('APO'), issued an advertisement on 10.12.1992. In response to the same Appellants as well as the Respondents alongwith others offered their candidatures. The selection was comprised of written test and interview and the in final selection, the Respondents occupied higher merit positions than the Appellants. It will be pertinent to mention here that the Respondents at the time of their selection and appointments were serving in the Education Department of the Government as Assistant Teachers and they applied for the posts of APO through proper channel. 3. While the Appellants were appointed as APO as direct recruits, the Respondents were appointed as deputationists initially for a period of three years, which was extended from time to time. Eventually the Respondents were absorbed in the Department by order dated 23.3.1999. Be it stated here that the Respondents were released from their erstwhile Department to join the post of APO maintaining their lien in the parent Department. 4. The grievance of the Respondents arose on publication of the seniority list of APOs. The provisional seniority list was published vide office memorandum dated 1.12.2000 placing the Respondents below the Appellants on the basis of the respective dates of joining of the Appellants and absorption of the Respondents as APO. 4. The grievance of the Respondents arose on publication of the seniority list of APOs. The provisional seniority list was published vide office memorandum dated 1.12.2000 placing the Respondents below the Appellants on the basis of the respective dates of joining of the Appellants and absorption of the Respondents as APO. The representation submitted by the Respondents urging for correct fixation of seniority on the basis of the merit positions obtained in the selection did not yield any result and eventually the seniority list was made final by office memorandum dated 27.7.2001 maintaining the seniority positions as in the provisional list. 5. Being aggrieved, the Respondents invoked the writ jurisdiction of this Court by filing the writ petition being WP(C) No. 886 (AP)/2001. The official and the private Respondents, who are the Appellants herein, contended that the seniority positions between the two groups were correctly assigned. In this connection they placed reliance on the consolidated order of seniority issued by the Government of India, Department of Personnel and Training vide office memorandum dated 3.7.1986. It was contended that in absence of any Service Rule, the Department followed the Government of India's guidelines/rules. The relevant portion of the aforesaid memorandum on which they placed reliance is quoted below: 3.4.1. In the case of a person who is initially taken on deputation and absorbed later (i.e., where the relevant recruitment rules provide for 'deputation/absorption') his seniority in the grade in which he is absorbed will, normally, be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation, or the date from which he has been appointed on regular basis to the same or equivalent grade in his parent department, whichever is later. 6. The learned Single Judge formulating the following questions has answered the same against the Appellants and hence this appeal. 16. The question, now, is as to whether the State Respondents are justified in treating the seniority of the Petitioners w.e.f. the date of their absorption as indicated hereinabove. 6. The learned Single Judge formulating the following questions has answered the same against the Appellants and hence this appeal. 16. The question, now, is as to whether the State Respondents are justified in treating the seniority of the Petitioners w.e.f. the date of their absorption as indicated hereinabove. This question, in fact, brings us to a more fundamental question and the question is as to whether it was fair arid just on the part of the Government to absorb the Petitioners, in the fact and attending circumstance of the present case, with effect from 23.3.1999, i.e., the date on which their permanent absorption in the Rural Development Agency was finally approved. 23. However, the question is as to whether it is just and permissible to ignore or omit, to consider the lengths of service, which the Petitioners have put in the equivalent grade in the borrowed department before the date of their absorption. Suffice it to mention here that not considering the services which the Petitioners have put in the borrowed department, is against the established position of service jurisprudence and if such refusal to consider length of service in the borrowed department is allowed to stand good on record, it will be highly unjust and will cause serious miscarriage of justice. 7. Mr. R.L. Yadav, learned Counsel for the Appellants strenuously argued that the learned Single Judge was wrong in allowing the writ petition holding that the Respondents are entitled to count their seniority in order of merit positions obtained in the competitive examination. According to him, since the Respondents, although were inducted to the service pursuant to the same competitive examination through which the Appellants were also inducted, the induction of the Respondents being on deputation during which they maintained their lien in their parent department and their subsequent absorption in the department being only prospective and the Respondents having accepted that position all throughout, they are not entitled to count their period of service rendered on deputation till absorption. He placed reliance on the decision of the Apex Court reported in Sub-Inspector Rooplal v. Lt. Governor through Chief Secretary (2000) 1 SCC 644 . He also referred to the decisions of this Court dated 13.5.1998 rendered in Writ Appeal No. 609/1996 affirming judgment and order dated 19.11.1996 passed in the writ petition being Civil Rule No. 1961/1992. 8. Mr. He placed reliance on the decision of the Apex Court reported in Sub-Inspector Rooplal v. Lt. Governor through Chief Secretary (2000) 1 SCC 644 . He also referred to the decisions of this Court dated 13.5.1998 rendered in Writ Appeal No. 609/1996 affirming judgment and order dated 19.11.1996 passed in the writ petition being Civil Rule No. 1961/1992. 8. Mr. D.R. Gogoi, learned Counsel appearing for the private Respondents supporting the impugned judgment and order contended that the Respondents having entered into the services pursuant to the same competitive examination along with the Appellants, the services rendered by the Respondents purportedly on deputation cannot be obliterated altogether so as to deny the said period of service towards counting seniority. He submitted that the official Respondents committed glaring illegality in not determining the seniority of the incumbents according to the merit positions obtained by them in. the competitive examination. 9. Mr. C.K. Sarma Barua, learned Advocate General, State of Arunachal Pradesh submitted that the learned Single Judge having decided the issue towards determination of seniority between the two groups and the state having not preferred any appeal against the impugned judgment and order, the state would like to abide by any decision which will be rendered by this Court. Mr. B. Banerjee, learned Sr. Government Advocate assisting the learned Advocate General referred to two decisions of the Apex Court reported in Jagdish Lal and Ors. v. State of Haryana and Ors. (1997) 6 SCC 538 and M.K. Shanmugam and Anr. v. Union of India and Ors. (2000) 4 SCC 476 . 10. We have given our anxious consideration to the respective arguments advanced by the learned Counsel for the parties. We have also gone through the entire records of the case and also considered the relevant circulars etc. including the decisions on which the learned Counsel for the parties have placed reliance. There is no dispute that both the groups i.e., the Appellants and the private Respondents entered the services of the official Respondents through the same competitive examination occupying their respective merit positions in the selection conducted for the purpose. 11. The circular on which the Respondents placed reliance and the particular part of the same, on which much emphasis was put, has been quoted above. 11. The circular on which the Respondents placed reliance and the particular part of the same, on which much emphasis was put, has been quoted above. On a bare perusal or the same it is seen that no definite principle for counting seniority prospectively, whenever a deputationist is absorbed has been laid down. The word normally has a significance about which the learned Single Judge has discussed in the impugned judgment and order. The said word itself suggests that the principle of counting seniority from the date of absorption is not all pervasive and there could be exception to the same. The guidelines itself provides that if the incumbent was already holding the same or equivalent grade on regular basis in his parent department, such regular service in the grade would also be taken into account in fixing seniority subject to the condition that the incumbent would be given seniority from the date he was holding the post on deputation. 12. In the instant case, the Respondents on their joining as APO under the Respondents, irrespective of the manner in which their such appointment was described occupied the same grade pursuant to their regular selection alongwith the Appellants. If the incumbent holding the same or equivalent grade on regular basis in the parent department could count his seniority from the date of holding the post on deputation, we see no reason as to why the Respondents would not be entitled to count their seniority from their initial date of appointment purportedly on deputation. 13. In our opinion, there is no distinction between the entitlements of a deputationist to count his seniority from the date of joining the department on deputation, in case of holding of the same or equivalent grade on regular basis in the parent department with that of the entitlement of an incumbent coming over to the borrowing department through the regular process of selection and holding the same post till their absorption. If a deputationist, in the event of holding the same or equivalent grade in the parent department is entitled to count his seniority from the date of holding the post on deputation, on the same very analogy another deputationist joining the borrowing department pursuant to a regular process of selection and holding the same post till his absorption will also be entitled to count his seniority from the date of appointment. In both the cases, the incumbents hold the same or equivalent grade on regular basis. It is for these reasons the word normally is significant. 14. Mr. R.L. Yadav, learned Counsel for the Appellants emphasized that since the Respondents continued with the borrowing department maintaining their lien with the parent department, they are not entitled to count their seniority till their regular absorption in the borrowing department. We are of the considered pinion that such an argument is fallacious, inasmuch as the deputationists as envisaged in the guideline also continues in the borrowing department maintaining their lien in the parent department and in case of their eventual absorption, if they are entitled to count their seniority from the date of holding the post on deputation, we see no reason to take a different view of the matter with the kind of situation with which we are concerned in the present case. 15. Apart from the above, on a total reading of the above quoted guideline, it will be seen that the same is applicable where the relevant recruitment rules provide for deputation/absorption. Learned Counsel for the parties have agreed that at the time of appointment of both the groups, there was no recruitment rules. However, the Appellants in their affidavit filed on 27.9.2004 have annexed the copy of the office memorandum, dated 17.11.1992 issued by the Government of Arunachal Pradesh, Department of Rural Development laying down the procedure for filling up the posts of APO. Clause IV of the OM makes provision for service personnel in terms of which the candidates fulfilling the norms and qualifications, although already in Government service may also apply for the post and to compete in the competitive selection. It makes provision for such selected candidates either to resign from their former service or to join the department on deputation. The Respondents while was serving as Assistant teachers in their former department responded to the advertisement for the post of APO by offering their candidatures and upon acceptance of their candidatures, they were invited for the selection alongwith others. On the basis of the open and competitive selection they were selected and they occupied higher merit positions than the Appellants. 16. From the above, it will be seen that it was optional for the Respondents either to resign or to join the department on deputation. On the basis of the open and competitive selection they were selected and they occupied higher merit positions than the Appellants. 16. From the above, it will be seen that it was optional for the Respondents either to resign or to join the department on deputation. Thus, naturally, when they were appointed purportedly on deputation, they maintained their lien in the parent department like any other deputationist They continued to hold the post of APO like that of any other direct recruits and for that matter the Appellants and consequently, upon their eventual absorption in the department, they are entitled to count their seniority from their initial date of joining the department on deputation on the strength of the above quoted guideline. Any other interpretation of the said guideline would be disastrous inasmuch as the Respondents who came through the same competitive examination alongwith the Appellants would lose their period of service purportedly rendered on deputation from the date of initial appointment to the date of their absorption. 17. The particular guideline which has been referred to, is the part of the consolidated orders on seniority issued vide OM dated 3.7.1986 by the Government of India in the Department of Personnel and Training, about which a mention has been made above. The said order dealing with the seniority of the direct recruits and promotes provides in Clause 2.1 that the related seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection. In the same order, under the head Seniority of Absorbees the particular Clause i.e., Clause 3.4.1 on the basis of which the seniority of the two groups was determined, is available. The learned Single Judge has interpreted the same in favour of the Respondents on the sound principle of determining seniority and we are of the considered opinion that there is no infirmity in the same. 18. Seniority is a comparative concept between the employees who are equally circumstanced. It follows that the length of service must be rendered in the same grade except in cases relating to transfer or deputation, where services in an equivalent grade might also be taken into consideration. 18. Seniority is a comparative concept between the employees who are equally circumstanced. It follows that the length of service must be rendered in the same grade except in cases relating to transfer or deputation, where services in an equivalent grade might also be taken into consideration. In the instant case, the particular guideline centering which the present issue has arisen, extends the benefit of seniority from the date" of appointment in the new department in the event of the incumbent rendering service in the earlier department in the same or equivalent grade. It has already been held that the Respondents cannot be deprived of their seniority from the initial date of appointment as APO in the present department on both counts i.e., they having been appointed pursuant to a regular selection and secondly they having rendered services in the same grade. In the Direct Recruits case reported in (1990) 2 SCC 715 , the Supreme Court has declared the law relating to reckoning officiating service in computing seniority in the following propositions: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement the officiation in such post cannot be taken into account for considering the seniority. (B) if the initial appointment is not made by following the procedure laid-down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted. 19. Propositions (A) and (B) extracted from the direct recruit case discloses an attempt to reconcile the apparent inconsistencies in the earlier judgments of the Apex Court and seeks to encapsulate in clear and specific terms the rules for taking into account the officiating services in computing the length of service. 20. Mr. 19. Propositions (A) and (B) extracted from the direct recruit case discloses an attempt to reconcile the apparent inconsistencies in the earlier judgments of the Apex Court and seeks to encapsulate in clear and specific terms the rules for taking into account the officiating services in computing the length of service. 20. Mr. R.L. Yadav, learned Counsel for the Appellants contended that the Respondents having joined the post of APO in the new department on deputation at their own risk, irrespective of their such joining being through the same competitive examination in which the Appellants also sat, they are not entitled to count their seniority till such time they were regularly absorbed in the new department. We are not impressed with the submission. It is well known that many officers have to be sent on deputation in the public interest to other departments in order to meet the exigencies of public service and that before sending them on deputation their consent is invariably taken. Merely because, the Respondents were shown to be on deputation, we are of the opinion that they cannot be made to suffer in absence of any good reason for it. Even, the guideline on the basis of which the Respondents sought to be deprived of their seniority does not support such a plea. 21. In the case of Vijay Kumar Shrotriya v. State of U.P. AIR 1998 SC 1088 , the Apex Court having found that the incumbent was recruited through combined examination on ad hoc basis treating it to be a case of transfer from Irrigation Department to PWD held that his service in the Irrigation Department cannot be excluded for fixing his seniority. The Apex Court observed that a person even appointed on a substantive vacancy on a temporary post after due approval by the Public Service Commission if fulfills all other essential criteria as prescribed he shall be deemed to be born in service from such date of his appointment. In other words his entire length of service from that date should be reckoned in computing seniority. 22. In the case of Sub-inspector Rooplal (supra), the Apex Court dealt with the question whether the Appellants therein who are entitled to count their service rendered by him as Sub-Inspectors in BSF for the purpose of their seniority after absorption as Sub-inspectors (Executive) in the Delhi Police or not. 22. In the case of Sub-inspector Rooplal (supra), the Apex Court dealt with the question whether the Appellants therein who are entitled to count their service rendered by him as Sub-Inspectors in BSF for the purpose of their seniority after absorption as Sub-inspectors (Executive) in the Delhi Police or not. In that case also the Apex Court had the occasion to deal with the same clause/guideline as in the instant case. Considering the validity of the office memorandum laying down the said guideline, the Apex Court found fault with the offending portion of the office memorandum - "subject to the condition that he will be given seniority from the date he has been holding the post or the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, whichever is later." It has been held in the said case that, the use of the words "whichever is later" negatives the rights which was otherwise sought to be conferred under the previous paragraphs of Clause (IV) of the memorandum (the Clause which have been quoted above). 23. While holding as above, the Apex Court observed, thus: 20. ...We are unable to see the logic behind this. The use of the words "whichever is later" being unreasonable, it offends Article 14 of the Constitution. It is also argued on behalf of the Appellants that this memorandum is further violative of Articles 14 and 16 of the Constitution inasmuch as it arbitrarily takes away the service rendered by the deputationists when he is absorbed in the Delhi Police which right of a civil servant cannot be taken away without the authority of law. We have noticed earlier that the Petitioners, who are the Appellants in the civil appeals, were regularly appointed as Sub-Inspector in BSF on the date of their deputation. We have also accepted the fact that the post of o Sub-Inspector held by them in BSF is equivalent to the post of Sub- inspector (Executive in the Delhi Police to which they stood deputed. We have also accepted the fact that the post of o Sub-Inspector held by them in BSF is equivalent to the post of Sub- inspector (Executive in the Delhi Police to which they stood deputed. That being the case in view of the judgment in the cases of R.S. Makashi, Wing Commander J. Kumar and Madhavan it is clear that they are entitled to count the service rendered by them in the post of Sub-Inspector in BSF for the purpose of seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police. Therefore, such a right of the Appellant- Petitioners could not have been taken away in the garb of an office memorandum which is impugned in the above writ petition. This view of ours finds support from a judgment of this Court in the, case of K. Anjaiah v. K. Chandraiah. In that case this Court was considering a statutory regulation which in almost similar terms used in the office memorandum with which we are concerned, deprived the civil servants of their past service in the parent department.... 23. It is clear from the ratio laid down in the above case that any rule, regulation or executive instruction which has the effect of taking away the service rendered by a deputationist in a equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Articles 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the memorandum, as has been prayed in the writ petition, the rights of the Appellants could be preserved, we agree with the prayer of the Appellant-Petitioners and the offending words in the memorandum "whichever is later" are held to be violative of Articles 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned memorandum. Consequently, the right of the Appellant-Petitioners to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is restored. 24. Before concluding, we are constrained to observe that the role played by the Respondents in this litigation is far from satisfactory. 24. Before concluding, we are constrained to observe that the role played by the Respondents in this litigation is far from satisfactory. In out opinion, after laying down appropriate rules governing the service conditions of its employees, a state should only play the role of an impartial employer in the inter se dispute between its employees. If any such dispute arises, the state should apply the rules laid down by it fairly. Still if the matter-is dragged to a judicial forum, the state should confine its role to that of amicus curiae by assisting the judicial forum to arrive at a correct decision. Once a decision is rendered by a judicial forum, thereafter the state should not further involve itself in litigation. The matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a State, after the judicial forum delivers a judgment, files review petition, appeal etc. it gives an impression that it is espousing the cause of a particular group of employees against another group of its own employees, unless of course there are compelling reasons to resort to such further proceedings. In the instant case, we feel the Respondent has taken more than necessary interest which is uncalled for. This act of the state has only resulted in waste of time and money of all concerned. 24. In the case of Jagdish Lal (supra), the Apex Court while observing that, confirmation is an inglorious uncertainty, further observed that if a person is appointed according to the Rules on consideration of claims of eligibility as on that date as per the Rules, he is accorded seniority and continuous length of service gets counted from the date of initial appointment by direct recruitment/promotion/transfer to the cadre/post. Similarly, in the case of M.K. Shanmugam (supra) the Apex Court reiterated the principle that the ad hoc service counts for seniority if the initial appointment, though ad hoc was not by way of stopgap arrangement and was made through the same process as is applicable to regular appointment. 25. The decision of this Court on which the learned Counsel for the Appellants placed reliance is of no assistance to their case. In that case, the court was not concerned with the particular OM, with which we are concerned in this case and the criteria adopted for fixing seniority. 25. The decision of this Court on which the learned Counsel for the Appellants placed reliance is of no assistance to their case. In that case, the court was not concerned with the particular OM, with which we are concerned in this case and the criteria adopted for fixing seniority. That judgment was rendered in the fact situation obtaining in that case and no principle of law of universal application has been laid down. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. See Lord Halsbury in Quinn v. Leathern 1901 AC 495. 26. The learned Single Judge has dealt with all the contentions raised by the parties and has allowed the writ petition interfering with the impugned decision of the State Government and holding that the Respondents are entitled to count their seniority from their initial date of appointment as APO same being on the basis of the same competitive examination in which they sat alongwith the Appellants. We see no reason to take a different view of the matter. It will be wholly opposed to the settled principle of seniority to deny the Respondents, that period of service rendered by them in the present department from the date of their initial appointment in the same post and that too pursuant to the same process of selection in which the Appellants also participated. 27. For the foregoing reasons and discussions, we uphold the impugned judgment and order passed by the learned Single Judge and consequently, the writ appeal is dismissed. There shall be no order as to costs. 28. Writ appeal is dismissed. Appeal dismissed.