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2007 DIGILAW 179 (JK)

Mohd. Shafiq Khan v. State

2007-09-07

MANSOOR AHMAD MIR

body2007
1. The core dispute involved in this writ petition is whether petitioners seniority is to be reckoned from the date he came to be appointed as Assistant Conservator of Forests in the pay scale of Rs. 475-850 on ad hoc basis for a period of six months vide Government Order No. III-FST of 1977 dated 10.9.1977 or is to be counted from the date of regular appointment in terms of the selection process conducted by the Public Service Commission i.e, from 4.01.1978. The reliefs prayed for are subject to the determination of the question framed hereinabove. 2. In order to determine the controversy, it is necessary to notice the brief facts of the case as per the pleadings of the parties as under: 3. Petitioner came to be appointed on ad hoc basis as Assistant Conservator of Forests vide Government Order supra (P1) for a period of six months or till selection would be made by the Public Service Commission which ever earlier. Petitioner had competed in a selection process and came to be declared successful and recommended by the Public Service Commission for substantive appointment against the post of Assistant Conservator of Forests in the State Forest Services and respondents vide Government Order No. 01 FST of 1977 dated 4.1.1978, accorded sanction to the regularization of the appointment of the petitioner - P2. Besides the petitioner, respondents 3,4,6 and 7 came also to be declared successful and sanction was accorded for their appointment against the post of Assistant Conservator of Forests (p2). 4. Tentative seniority list-P3, came to be issued on 8.7.1987 and petitioner came to be shown at serial no. 35 in the seniority list, over and above the respondents 3 to 9 and that seniority came to be reckoned on the basis of his initial appointment- ad hoc appointment -P1. 5. Objections were invited from all concerned officers. After considering the objections, communication came to be issued by the respondents to the petitioner, whereby and whereunder, petitioner came to be informed that his placement is at serial no. 41 and, accordingly, final seniority list came to be issued indicating petitioner at serial no. 41- P5. 6. Respondent no. 1 issued Government order no. 187-FST of 1984 dated 4.1.1984, whereby promotion of Assistant Conservator of Forests to the post of Deputy Conservator of Forests was made- P6. 41 and, accordingly, final seniority list came to be issued indicating petitioner at serial no. 41- P5. 6. Respondent no. 1 issued Government order no. 187-FST of 1984 dated 4.1.1984, whereby promotion of Assistant Conservator of Forests to the post of Deputy Conservator of Forests was made- P6. Feeling aggrieved by the communication - P5 and promotion- P6, petitioner made a detailed representation to the respondents and to the then Chief Minister of Jammu and Kashmir State, with the prayer that the seniority of the petitioner be fixed from the date of initial appointment - P1. Copy of the representation dated 6.3.2004 is enclosed with the writ petition as Annexure- P7. 7. Petitioner also filed writ petition bearing SWP no. 17/84 before this Court, whereby communication as well as seniority list came to be assailed. Writ petition came to withdrawn vide order dated 23.10.1984. It is profitable to reproduce the order dated 23.10.1984 hereunder: "Learned counsel for the petitioner has stated that the grievance has been redressed outside the court. Therefore, he seeks to withdraw the petition, which is dismissed as withdrawn accordingly. At this state Mr. Hagroo submitted that he was assured of being helped which assurance he has believed. 8. After the withdrawal of the writ petition, petitioner came to be promoted to the post of Deputy Conservator of Forests vide order No. 209-SFT of 1985 dated 17.12.1985 -P8. 9. Respondent no. 1 also issued Government Order No. 208 of 1984 dated 24.2.1984, whereby sanction was accorded to the temporary appointment of respondents 8 and 9 against the post of Assistant Conservator of Forests- P9. Petitioner again made representation for his placement of seniority at serial no. 35 in the final seniority list of 1984 but without any response. 10. Respondents also issued communication invited objections from all concerned officers in terms of the orders, passed by this court in a SWP no. 104/1985, filed by Mohammad Hussain Shah. Petitioner also filed objections and also made a representations, thereafter revised seniority list came to be issued and petitioner came to be shown at serial no. 48- P11. He again made a detailed representation P-12, but without any response. 11. On 10.10.1990, respondent no. 1 vide Government Order No. 177- FST(GR) of 1990 regularized the ad hoc appointment of one Aijaz Ahmad Bhat, DFO, Bandipora, as Assistant Conservator of Forest on 10.9.1977 P-13. 48- P11. He again made a detailed representation P-12, but without any response. 11. On 10.10.1990, respondent no. 1 vide Government Order No. 177- FST(GR) of 1990 regularized the ad hoc appointment of one Aijaz Ahmad Bhat, DFO, Bandipora, as Assistant Conservator of Forest on 10.9.1977 P-13. Petitioner and Aijaz Ahmad Bhat came to be initially appointed on ad hoc basis against the posts of Assistant Conservator of Forests vide order supra. 12. Respondents 1, 2, 3, 4, 6 and 8 have filed reply and the petitioner has also filed the rejoinder. Respondents have resisted the petition mainly on the ground that the petitioner came to be appointed directly on ad hoc basis and there after came to be substantively appointed on regular appointment on 4.1.1978. The ad hoc services could not be counted for seniority purposes and the seniority came to be reckoned from the date he came to be appointed as per rules. It is profitable to reproduce here the background of the case given in para no.2 of the objections filed by the respondents 1 and 2 as under: "Before answering the issue involved in this case, a little background of the case is imperative. Shri A.R.Latoo (working as Range Officer) Shri Ayaz Ahmad and Shri Mohd Shafi Khan (petitioners) were appointed after obtaining approval of the then Chief Minister as Assistant Conservator of Forests in the pay scale of 475-850 (old) vide government Order No. 111-FST of 1977 dated 10.9.1977, on ad hoc basis for a period of six months or till such time as the Public Service Commission makes a selection whichever to be earlier. The Public Service Commission submitted a panel of selected candidates for appointment as Assistant Conservator of Forests on 24.7.77. Based upon this panel vide Government Order No. 1_FST of 1978 dated 4.1.1978, appointment of the following candidates as Assistant Conservator of Forests came to be made in the order given below: S/Shri 1. Subash Chander Sharma 2. Suraj Parkash 3. Harinder Singh 4. Abdul Qayum Khan 5. Asgar Inayatullah As regards Mohd Shafi Khan (petitioner) the order mentioned above reads as under:- "Further ad hoc appointment of Mohd Shafi Khan S/o Mohd Muzaffar Khan R/o Rehbab Sahib Ali Kadal Srinagar made vide Govt. Order No. 111-FST of 1977 dated 10.9.1977 is hereby regularized. Subash Chander Sharma 2. Suraj Parkash 3. Harinder Singh 4. Abdul Qayum Khan 5. Asgar Inayatullah As regards Mohd Shafi Khan (petitioner) the order mentioned above reads as under:- "Further ad hoc appointment of Mohd Shafi Khan S/o Mohd Muzaffar Khan R/o Rehbab Sahib Ali Kadal Srinagar made vide Govt. Order No. 111-FST of 1977 dated 10.9.1977 is hereby regularized. Subsequent to the regularization of services of the petitioner, his name came to be placed in the seniority list of Assistant Conservator of Forests at Serial no. 41 vide Government Order No. 186-FST of 1984 dated 1.9.1984. The seniority list came to be revised as on 1.1.91 vide Government Order No. 71-FST of 1991 dated 25.3.1991 and the petitioner has been shown at serial no. 34. On the basis of his position in select list of 1977 the earlier representation of the petitioner for allotment of his seniority with effect from 10.9.1977 was rejected." 13. Respondents have also pleaded that Aijaz Ahmad, who was also appointed on ad hoc basis with petitioner and his ad hoc appointment came to be reckoned from 10.9.1997 for seniority purposes in terms of the orders passed by the court from time to time and the case of the petitioner was also processed but thereafter the orders came to be stayed. Admittedly by LPA Bench allowed the appeal and dismissed the writ petition of Aijaz Ahmad. 14. The admitted facts of the case are that petitioner came to be appointed on ad hoc basis de hors the rules. Petitioner came to be appointed after competing selection process on 4.1.1978 alongwith respondents 3, 4, 6 and 7. Final seniority list came to be issued and his placement has been shown at serial no. 41. 15. Writ petition no. 17/84, filed by the petitioner came to be dismissed as withdrawn without any reserving right of the petitioner vide final order quoted supra. The ad hoc services of Aijaz Ahmad came to be regularized for purposes of seniority in terms of the court order but thereafter, writ petition came to be dismissed. 16. 41. 15. Writ petition no. 17/84, filed by the petitioner came to be dismissed as withdrawn without any reserving right of the petitioner vide final order quoted supra. The ad hoc services of Aijaz Ahmad came to be regularized for purposes of seniority in terms of the court order but thereafter, writ petition came to be dismissed. 16. It is beaten law of the land that when a post is to be filled up by the direct recruitment, the seniority for any purposes is to be reckoned from the date of his substantive appointment and any appointment of ad hoc basis/stop gap arrangement is not be counted for any purposes being de hors rules. The case of the petitioner is that he was appointed on 10.9.1977, at that particular point of time selection process was complete and was eligible on the said date and accordingly, appointment order dated 4.1.1978 came to be issued whereby his services came to be regularized. Thus his service for purpose of seniority is to be reckoned from 10.9.1997. I am of the considered view that arguments are void of any force for the following reasons:- It is apt to reproduce appointment order hereunder: Government of Jammu and Kashmir Civil Sectt. Forest Department. Sub: Appointment of Assistant Conservator of Forests. Ref: Public Service commissions letter No. PSC/6354/77 Dated 24.10.1977. Government Order No. 1-Fst of 1978 Dated: 4.1.1978 17. As recommended by the Public Service Commission sanction is accorded to the temporary appointment of the following persons as Assistant Conservators of Forests in the Forest Department in the scale of Rs.476-25-700-EB-850: 1. Shri Subash Chander Sharma, S/o Pt. Ram Bhag, B/50 N.F.R.C. New forest, Dehra Dun. 2. Shri Suraj Prakash, S/o Pt. Brita Ram, C/o Dr. P.S. Khosla 22 - Link road, Jammu. 3. Shri Harnder Singh, S/o Sukhdev Singh N.F.R.C. (New Colony) Dehradun UF 248006. 4. Shri Abdul Qayoom Khan, S/o Ghulam Mohammad Khan R/o Ikhrajpora, Jawahar Nagar Srinagar, Kashmir. 5. Shri Asgar Inayatullah, S/o Sheikh Ghulam Mohammad R/o Mohalla Sarafan, Bhaderwah P.I. Bhaderwah. 18. Further the adhoc/appointment of Shri Mohd Shafiq Khan S/o Shri Mohammad Muzaffar Khan aR/o Rehbab Sahid, Ali Kadal, Srinagar, made vide Govt. Order No. 111-FST of 1977 dated 10.9.1977 is hereby regularized, By order of the Government of Jammu and Kashmir. Sd/- (N.A. Masoodi) Secretary to Government, Forest Department". 19. 18. Further the adhoc/appointment of Shri Mohd Shafiq Khan S/o Shri Mohammad Muzaffar Khan aR/o Rehbab Sahid, Ali Kadal, Srinagar, made vide Govt. Order No. 111-FST of 1977 dated 10.9.1977 is hereby regularized, By order of the Government of Jammu and Kashmir. Sd/- (N.A. Masoodi) Secretary to Government, Forest Department". 19. It is no where mentioned in this order that the services of the petitioner were regularized retrospectively. The date is very important. He came to be appointed on date when other respondents 3, 4, 6 and 7 came to be appointed. It is also not mentioned in the order that his ad hoc appointment is to be counted for purposes of seniority. His case and case of one Shri Eijaz Ahmad is similar and the writ petition of Eijaz Ahmad came to be dismissed. Thus on the same analogy petitioner cannot claim any relief. The appointment of the petitioner was made on ad hoc basis as per the directions and recommendations of the then Chief Minister. On the face of it discloses that his appointment on ad hoc basis is de hors rules, thus he cannot claim any relief from 10. 9. 1977 on the basis of ad hoc appointment. 20. The Apex Court in Suraj Parkash Gupta v. State of J&K (2000) 7 Supreme Court Cases 561 held that any appointment made de hors rules cannot be counted for any purposes. It is profitable to reproduce para no. 75 and 76 as under: 75. These rulings cannot be applied to the case of the promotees. I fact the principle laid down in these cases is consistent with the principles in service jurisprudence so far as the ad hoc 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 rules and any ad hoc/stopgap service rendered before regular selection cannot count for seniority. 76. The direct recruits relied upon A.P.M Mayankutty v. Secy. In that case, the petitioner was appointed in 1950 temporarily under Rule 10(a) (I) of the Rules (which is similar to the ad hoc appointment under Rule 14 and Rule 25 in the J&K Rules and Rule 10(a)(I) of the A.P. Rules) but was directly recruited only in 1954. It was held that the pre-1954 service could not be counted. In that case, the petitioner was appointed in 1950 temporarily under Rule 10(a) (I) of the Rules (which is similar to the ad hoc appointment under Rule 14 and Rule 25 in the J&K Rules and Rule 10(a)(I) of the A.P. Rules) but was directly recruited only in 1954. It was held that the pre-1954 service could not be counted. Likewise in State of T.N. v. E.Paripoornam the petitioner in the High Court was appointed temporarily under Rule 10(a) (I) but was recruited much later under the Rules through PSC.PSC gave him a rank. It was held that his seniority would be as per the rank and not from the date of temporary appointment. A.P.M. Mayankutty case was followed. P.D. Aggarwal v. State of U.P was one where it was held (sees paras 26-28) that the ad hoc service of the officer who was later directly recruited in consultation with PSC, could not count as it was not regularized service. Their seniority would count only from the date they become members of the services, even if they were qualified earlier on the date of temporary appointment (see p.646). Masood Akhtar Khan v. State of M.P is also a case of a direct recruit and it was held that his previous service before regular selection by PSC could not count. Vijay Kumar Jain v. state of M.P is similar. In State of Irissa v. Sukanti Mohapatra the exercise of the power of relaxation by the Government to count the ad hoc service of a direct recruit prior to PSC recruitment was held bad the order, to that extent, was quashed. Dr. Arundhati Ajit Pargaonkar v. state of Maharashtra is also a case where ad hoc service of an employee before direct recruitment by PSC was held not liable to be counted. In E.Ramakrishnan v. State of Kerala it was held that the pre-recruitment service of 13 years could not be counted. All these cases cited relate to ad hoc service of direct recruits before selection and are therefore distinguishable and could not have been relied upon to deprive the promotees of their ad hoc service. 21. The Apex Court in Santosh Kumar v. G.R.Chawla, AIR 2003 Vol. 90 S.C 3304 laid down the same ratio. It is profitable to reproduce para no. 13 of the judgement as under: 13. 21. The Apex Court in Santosh Kumar v. G.R.Chawla, AIR 2003 Vol. 90 S.C 3304 laid down the same ratio. It is profitable to reproduce para no. 13 of the judgement as under: 13. On the point whether the appellants/writ petitioners were entitled to the seniority from the date of their original initial appointment, the High Court observed as follows: "In the present case rule of the seniority clearly provides that seniority in any category or cadre post shall be determined from the date of the order of substantive appointment. The posts of Drug Inspectors was within the purview of Public service Commission. But, ad hoc appointments cannot be deemed to be the substantive appointments. It were in the nature of stop gapa or fortuitous appointments, hence the period during which ad hoc appointees worked, cannot be counted for the purposes of seniority." 22. The Apex Court in M.Subba reddy v. A.P.S.R.T.C, AIR 2004 S.C. 3517 has laid down the same ratio. 23. The Apex Court in Union of India v. S.K.Sharma, AIR 1992 vol. 79 S.C. 1188 in para no. 6 has held as under: " In Masood Akhtar Khan v. State of Madhya Pradesh ( 1990) 4 SCC 24, it was held that if the initial appointment is not made according to the rules, subsequent regularization of his service does not entitle an employee to the benefit of intervening service for seniority. Seniority has to be reckoned from the date of regular appointment and not to be counted from the date of any stop gap appointment." 24. The Apex Court in Direct Recruit Class II Engg. Officers Assocn. V. State of Maharashtra, AIR 1990, S.C. 1607, para no. 44 has held as under: (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. 25. The Apex Court also laid down the same rule in Anuradha Bodi v. Municipal Corpn of Delhi, AIR 1998 SC 2093. 26. The Apex Court in a recent judgement in K. Madalaimuthu & Anr. 25. The Apex Court also laid down the same rule in Anuradha Bodi v. Municipal Corpn of Delhi, AIR 1998 SC 2093. 26. The Apex Court in a recent judgement in K. Madalaimuthu & Anr. v. State of Tamil Nadu and Ors. AIR Supreme Court Weekly 3515 held that the person appointed temporary de hors rules cannot be said to be in service till such time his appointment is regularized and his services can be counted for his seniority in the cadre from the date of his regularization. It is profitable to reproduce para no. 24 and 26 as under: "24......... It stands to reason that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularized. It, therefore, follows that it is only from the date on which his services are regularized that such appointee can count his seniority in the cadre. 26. We, there fore, set aside the order passed by the High Court and direct the concerned respondents to re-determine seniority of the appellants in relation to the promotees after reckoning the starting point of seniority of the appellants in relation to the promotees after reckoning the starting point of seniority of such promotees from the date on which of their services were regularized and not from the date of their initial appointment under Rule 10(a)(I)(1) of the General Rules." 27. Keeping in view the discussion made hereinabove and contents of the appointment order referred hereinabove, the judgment of the Apex Court reported in AIR 2001 S.C Vol 88 1793 has no application in the peculiar facts and circumstances of the case. 28. The argument of ld. counsel for the writ petitioner that writ petitioner was otherwise eligible on 10.9.1977 for appointment because he had at that particular point of time substantively competed the selection process is also thrashed out by Apex Court in Suraj Parkash Guptas case, relevant para 76 referred hereinabove. 29. Having glance of the above discussion, there is no merit in this writ petition, which is accordingly, dismissed alongwith all connected CMP(s). Interim direction, if any, shall stand vacated.