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Rajasthan High Court · body

2008 DIGILAW 1109 (RAJ)

Suraj Prakash Dave v. State of Rajasthan

2008-04-23

GOPAL KRISHAN VYAS

body2008
Honble VYAS, J.–In these petitions petitioners are seeking directions to respondents for assigning correct seniority position above respondent Nos. 4 to 8 by counting their seniority from the date of their initial appointment i.e. 8.2.1980 and 5.2.1980, respectively with all consequential benefits by quashing notice Annex. 5 and circular dated 16.4.1985. Further it is prayed that promotion order qua respondents Nos. 4 & 5 and petitioners may be promoted to the post of Manager, Grade-D from 23.3.2005 with all consequential benefits. (2). Since controversy involved in these two cases is similar so also the prayer made in both the cases is also same, therefore, facts of writ petition No. 2448/2005 are taken into consideration for adjudicating these matters. (3). The petitioner was initially appointed on the post of LDC in the respondent bank vide Annex. 1 passed by Joint Registrar, Cooperative Societies, Pali Division, Pali dated 4.2.1980 under Antodaya Credit Project. This appointment was purely on temporary basis under Antodaya Credit Project and while issuing order Annex. 1 petitioner was posted in the office of respondent No. 3. (4). After abolition of Antodaya Credit Project, petitioner was ordered to be absorbed in the Jalore Central cooperative Bank Ltd. vide order dated 22.5.1984 and according to petitioner his services were confirmed in the cadre of LDC by the bank subsequently. (5). The petitioner is claiming seniority w.e.f. the date of his initial entry into service in the project i.e. 8.2.1980 on the ground that his seniority was finalised by the respondent bank vide Annex. 4 dated 22.8.1994 in which name of petitioner has been shown at serial No. 21 and in that order his date of appointment was also shown as 8.2.1980 and subsequently the same date of appointment was shown in the seniority list dated 1.1.2004 but also of sudden on 24.2.2005 a notice was given to the petitioner for hearing and for correction of his seniority as per notification dated 16.4.1985. Petitioner filed his reply to the notice given to him. (6). Vide Annex. 8 dated 21.3.2005 final seniority list was issued in which name of petitioner was shown at serial No. 10 and his date of appointment was shown as 1.4.1983 the date on which petitioner was absorbed in the bank. (7). Petitioner filed his reply to the notice given to him. (6). Vide Annex. 8 dated 21.3.2005 final seniority list was issued in which name of petitioner was shown at serial No. 10 and his date of appointment was shown as 1.4.1983 the date on which petitioner was absorbed in the bank. (7). Learned counsel for the petitioner vehemently argued that petitioners seniority was finalised by the bank itself while reckoning his seniority from his initial date of appointment in the Project but subsequently after about 15 years it is changed and petitioner has been given benefit of seniority w.e.f. 1.4.1993, the date on which order was passed by the State Government for absorbing the petitioner in the bank. According to the petitioner, he was rightly placed in the seniority list dated 22.8.1994 and subsequently in the seniority list date 1.1.2004, therefore, correction in seniority list dated 21.3.2005 is illegal and in contravention of settled principle of law and respondents are under obligation to reckon the seniority of petitioner w.e.f his initial entry into the service which is dated 4.2.1980. According to petitioner seniority once fixed cannot be changed by subsequent order, therefore, action of respondents is illegal and petitioner is entitled for seniority w.e.f. his initial date of appointment i.e. 4.2.1980. (8). Learned counsel for the petitioner argued that so called notification issued by the Government for the purpose of regulating the service condition of petitioner dated 16.4.1985 is also illegal and it was not with him at the time of filing writ petition but the same has been filed by the respondents as Annex. R/3/1. By this notification it is ordered that seniority of those employees who were appointed in Antodaya Project shall be reckoned from the date of order of absorption in the bank which is 1.4.1983. As per petitioner, said circular/notification issued by the Registrar, Cooperative Societies, Rajasthan is illegal because by this circular respondents have snatched the right of seniority with effect from initial date of entry into the service of petitioner, therefore, such circular deserves to be quashed. (9). As per petitioner, said circular/notification issued by the Registrar, Cooperative Societies, Rajasthan is illegal because by this circular respondents have snatched the right of seniority with effect from initial date of entry into the service of petitioner, therefore, such circular deserves to be quashed. (9). Per contra, counsel for the respondent Bank submitted that respondent bank is required to follow the circular dated 16.4.1985 issued by the Government because petitioner was initially appointed by the State Government in a particular project known as Antodaya Project on temporary basis and after abolition of said project a decision was taken by the Government not to throw those employees out of job, therefore, as per decision taken at the State Level to absorb employees like petitioner on the post of LDC in respective cooperative banks and in pursuance of order passed by the State Government on 11.3.1983 petitioner was absorbed in the bank vide order Annex. 3 dated 22.5.1984 and petitioner was wrongly granted seniority w.e.f his initial entry into the service, therefore, when this mistake came to the knowledge of respondent Bank then notice was issued to petitioner for making correction in the seniority list and to provide seniority according to circular dated 16.5.1985. The said notice was given to petitioner on 24.2.2005, thereafter, reply was filed by the petitioner, which is Annex. 7 and after considering the said reply, petitioner was assigned proper seniority w.e.f. 1.4.1983, the date which is prescribed by the Government for granting seniority vide Annex R/3/1. (10). According to respondents, petition became employee of bank when he was absorbed in the bank, therefore, an employee who was appointed in the project by the State Government cannot claim seniority w.e.f. the date of his appointment in the project and obviously as per circular Annex. R/3/1 dated 16.4.1985 seniority was to be given w.e.f. 1.4.1983 as directed by the State Government, therefore, vide impugned order petitioner was assigned proper seniority from the date of absorption in the Bank as prescribed by the Government vide circular dated 16.4.1985. (11). According to the respondents, circular issued by the State Government on 16.4.1985 has been upheld by this Court, therefore, bank was required to follow the same and there is no illegality in the seniority list issued by the respondent bank, therefore, this writ petition deserves to be dismissed. (12). (11). According to the respondents, circular issued by the State Government on 16.4.1985 has been upheld by this Court, therefore, bank was required to follow the same and there is no illegality in the seniority list issued by the respondent bank, therefore, this writ petition deserves to be dismissed. (12). I have heard learned counsel for the parties and perused the record of the case. In my opinion, petitioner cannot claim seniority for the period when he was appointed by the Government in the Antodaya Credit Project on temporary basis. After completion/abolition of project the services of petitioner were required to be discontinued but State Government passed an order to absorb these employees in cooperative bank who were appointed in Antodaya Project and in pursuance of said order passed by the State Government, petitioner was appointed in the respondent bank. Although he was absorbed in the bank vide Annex. 3 dated 22.5.1984 but he was assigned seniority in accordance with circular Annex. R/3/1 dated 16.4.1985 with effect from 1.4.1983. Meaning thereby, respondent bank absorbed the petitioner as per the directions of State Government, therefore, benefit of seniority is also given as per circular issued by the Government on 16.4.1985 in which there is no illegality. (13). Although, prior to passing of impugned seniority list, petitioner was given seniority w.e.f. the initial date of appointment in the project but when this mistake came to the knowledge of the respondent bank then it is felt necessary to correct the mistake committed by the bank, therefore, as per circular dated 16.4.1985, which is upheld by this Court, the proper seniority was assigned to the petitioner. (14). Similarly in case of Direct Recruit Class-II Engineering Officers Association and others vs. State of Maharashtra and others reported in AIR 1990 SC 1607 , the Constitutional Bench of Honble Apex Court has held that if appointment is according to Rules then seniority has to be counted from the date of appointment of the employee and if initial appointment is made on ad hoc basis and not according to Rules and made as a stop gap arrangement then officiation on such post cannot be taken into account for determining seniority. In para No. 44 of the above judgment certain directions have been issued and nor for this case sub-para (a) of para 44 is relevant, which reads as follows:- "44 (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 is such post cannot be taken into account for considering the seniority." (15). Further, the claim of petitioner is totally contrary to the adjudication may by the Honble Apex Court in Keshav Chandra Joshi and Ors. vs. Union of India & Ors. reported in AIR 1991 SC 284 in which it is held that seniority shall be counted from the date of substantive appointment so also service rendered on ad hoc basis contrary to Rules as stop-gap arrangement cannot be considered for determining seniority. Relevant para 33 of the said judgment as follows:- "33. Accordingly, we have no hesitation to hold that the promotees have admittedly been appointed on ad hoc basis as a stop-gap arrangement, though in substantive posts, and arrangement, though in substantive posts, and till the regular recruits are appointed in accordance with the rules. Their appointments are de hors the rules and until they are appointed by the Governor according to rules, they do no become the members of the service in a substantive capacity. Continuous length of ad hoc service from the date of initial appointment cannot be counted towards seniority. The Governor shall have to make recruitment by promotion to substantive vacancies in the posts of Asstt. Conservator of Forest, if not already made, in accordance with R. 5(b) read with Appendix `B and R. 6. Their seniority shall be counted only from the respective dates of appointment to the substantive posts in their quota under R. 6 as per the rules. The direct recruits having been appointed in accordance with R. 5(a) read with Appendix `A, their seniority shall be counted from the date of their discharging the duties of the post of Asstt. Conservator of Forest and the seniority of the direct recruits also shall accordingly be fixed. The direct recruits having been appointed in accordance with R. 5(a) read with Appendix `A, their seniority shall be counted from the date of their discharging the duties of the post of Asstt. Conservator of Forest and the seniority of the direct recruits also shall accordingly be fixed. The inter-se seniority of the direct recruits and promotees shall be determined in accordance with Rr. 5, 6 and the R.24 in the light of the law declared in the judgment. All the employees are entitled to all consequential benefits. On account of the pendency of judicial proceedings, if any of the employees become barred by age for consideration for promotion to cadre posts, the appropriate Government would do well to suitably relax the rules and do justice to the eligible conditions." (16). In the view of the matter there is no force in both the writ petitions and the same are hereby dismissed.