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2011 DIGILAW 384 (CAL)

Zaki Ahmed v. Ram Chander

2011-03-16

JYOTIRMAY BHATTACHARYA, R.N.BHATTACHARYA

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JUDGMENT :- Jyotirmay Bhattacharya, J. Re.:- CAN No.049 of 2011 on perusal of this application this Court holds that the documents which the appellant wants to bring on record by way of additional evidence, are relevant for deciding the instant appeal finally. As such, the appellant’s prayer for production of those documents by way of additional evidence stands allowed. This application is thus disposed of. Re.:- MAT No. 067 of 2010 This Mandamus appeal is directed against the judgment and /or order dated 25th November, 2010 passed by a learned Single Judge of this Court sitting in the Circuit Bench at Port Blair in WP No.335 of 2007 by which the seniority list published by the respondents which was impugned in the said writ petition was set aside and the Municipal Council was directed to refix the seniority list on the basis of substantive order of promotion having been granted to the respective parties without taking into consideration of the length of service rendered on ad-hoc basis. The propriety of the said order passed by the learned Single Judge of this Court is under challenge in this Writ Petition at the instance of the appellant who was affected by the impugned order by which the said seniority list was set aside. The learned Single Judge held that there was no provision in the recruitment rules for giving promotion on ad-hoc basis. The learned Single Judge also held that there is no provision of regularization of the ad-hoc period of service in the promotional post in the recruitment rules. The learned Single Judge ultimately held that the period served by the appellant in the promotional post on ad-hoc basis ought not to have been counted for the purpose of seniority. Such conclusion was arrived at by the learned Single Judge by relying upon two decisions of Hon’ble Supreme Court; one of which was passed by the Constitutional Bench of the Hon’ble Supreme Court in the case of the Direct Recruit Class-II Engineering Officers Association and others -Vs.- State of Maharashtra reported in AIR 1990 SC 1607 and the other one was passed by the Hon’ble Supreme Court in the case of Ram Ganesh Tripathi and others v. State of U.P. and others reported in (1997) 1 SCC 621 . Let us now consider as to how far the learned Single Judge was justified in passing the said order in the facts of the instant case. The only question which is involved in this appeal is as to whether the seniority should be given to the appellant by taking into consideration his initial promotional order on ad-hoc basis after regularization of his service. The answer to the said question can be traced out from the Constitutional Bench judgment of the Hon’ble Supreme Court in the case of the Direct Recruit Class-II Engineering Officers Association and Ors -vs- State of Maharashtra reported in AIR 1990 SC 1607 wherein it was clearly laid down as to when and under what circumstances the appointee on promotional post on ad-hoc basis can get the benefits of the period of such service for the purpose of counting his seniority after regularization of his service. The relevant part of the said judgment which is pertinent to the matter in issue in this appeal, is set out hereinunder. “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 adhoc 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 (emphasis supplied). (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.” The said decision of the Hon’ble Supreme Court thus makes it clear that once an incumbent is appointed to a post according to rule, his seniority has to be counted form the date of his appointment and not from the date of his confirmation. It was further held therein that 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 for fixing his seniority. It was further held therein that 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 for fixing his seniority. (Emphasis supplied) Let me first of all consider as to whether the initial appointment of the appellant on promotional post on ad-hoc basis was made according to the rules or not. The recruitment rules provide that the promotional post will be filled up by way of selection. It is further provided that promotion will be given from amongst the junior engineers of Municipal Council possessing degree (Civil Engineering having 5 years of regular service) or Diploma in Civil Engineering having 8 years of regular service. The appellant herein was a Diploma holder in Civil Engineering. He was in the cadre post for eight years at the time when DPC sat on 23rd April, 1999. As such he was otherwise eligible to be considered for promotion. However, it appears from the proceeding of DPC held on 23rd April, 1999 that only 2 years Annual Confidential Report of the eligible incumbents including the appellant herein was available before the DPC. Since the ACR of those incumbents for the proceeding period were not available to the members of the DPC, the DPC, instead of recommending the appellant for regular promotion recommended his promotion for the post of Assistant Engineer (E&M) initially on ad-hoc basis for a period of six months. On the basis of such recommendation the Municipal authority promoted the appellant to the post of Assistant Engineer (E&M) on ad-hoc basis for an initial period of six months with effect from 23rd April, 1999 vide Order No. 1136. Thus if this initial order of giving promotion on ad-hoc basis is considered carefully, then this Court has no hesitation to hold that he cannot get the benefit of his service in such promotional post for the purpose of counting his seniority as his initial promotion on ad-hoc basis was not given as per the recruitment rules. The recommendation of the DPC makes it clear that such recommendation for ad-hoc promotion was given without reference to any rules which authorizes the DPC to make such recommendation. The recommendation of the DPC makes it clear that such recommendation for ad-hoc promotion was given without reference to any rules which authorizes the DPC to make such recommendation. Nothing could be produced before us to show that even such promotion on ad-hoc basis can be granted on the basis of ACR of the appellant for 2 yrs only. In fact his appointment to the promotional post on ad-hoc basis was made as a stopgap arrangement and as such the officiation in such post cannot be taken into account for considering his seniority, as per the first part of the order of the Constitution Bench decision of the Hon’ble Supreme Court. Let me now test as to whether the other condition which was laid down by the Hon’ble Supreme Court for grant of benefit of seniority after regularization of his ad-hoc appointment in the promotional post is satisfied in the facts of the instant case. It was held by the Hon’ble Supreme Court that 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 for fixing his seniority. In this case the writ petitioner categorically contended in the writ petition that the appellant herein was not in uninterrupted and continuous service in the ad-hoc promotional post till regularization of his service in accordance with rules. Nothing has been produced before this Court to show that there was any provision for regularization of the period of officiating service in the ad-hoc promotional post, in recruitment rules. As such, this Court is still unable to find out as to whether such regularization was made as per recruitment rules or not. Be that as it may, since the regularization of the Appellant’s service has not been questioned by the writ petitioner, this Court refrained itself from considering the legality of regularization of the Appellant’s promotion to the promotional post. Even without entering into such question, this Court finds that the initial promotion of the petitioner on ad-hoc basis which was given to him on 23rd April, 1999 was extended subsequently from time to time till 23rd September, 2001. Even without entering into such question, this Court finds that the initial promotion of the petitioner on ad-hoc basis which was given to him on 23rd April, 1999 was extended subsequently from time to time till 23rd September, 2001. Though initially nothing was produced before the Court by the Appellant to show that such ad-hoc promotion was extended subsequently till regularization of his service as on 4th February, 2004, but subsequently by filing application for additional evidence, he disclosed numerous documents showing that his adhoc promotion was extended from time to time on diverse occasions after 23rd September, 2001, and he continued to render his service in the ad-hoc promotional post till his service was regularized on 4th February, 2004. Thus one of the conditions for grant of seniority benefit to the petitioner as per the decision of the Constitution Bench of the Hon’ble Supreme Court is satisfied herein. Now, let me consider as to whether the other part of the conditions laid down in the said decision of the Hon’ble Supreme Court is satisfied in the instant case. On 4th February, 2004 the Council unanimously resolved to regularize the ad-hoc appointment/promotion to its various employees including the appellant from the date of their respective appointment/promotion with retrospective effect. Accordingly, the appellant’s service in such officiating period in ad-hoc promotional post, was regularized and he was given seniority from the date of his initial promotion on ad-hoc basis i.e. from 23rd April, 1999. The regularization order does not disclose any provision following which such regularization was made. Nothing has been produced before this Court either by the Municipal authority or by the Appellant to show that such regularization was made by following the recommendations of DPC. Nothing has also been placed before us to show that even DPC at least considered the ACR of the Appellant for the previous period. Even nothing has been produced to show that even the ACR of the Appellant for the previous period has been prepared and the ACR for the proceeding period was taken into consideration either by the DPC or by the Council, before regularizing his ad-hoc promotion. Even nothing has been produced to show that even the ACR of the Appellant for the previous period has been prepared and the ACR for the proceeding period was taken into consideration either by the DPC or by the Council, before regularizing his ad-hoc promotion. Thus when, regular promotion could not be given to the Appellant earlier in 1999 for want of the ACR of the Appellant for the previous period, then how his promotion was regularized in 2004, when the ACR of the previous year or the special report relating to the petitioner was also not available before the concerned authority in 2004. Under such circumstances, this Court holds that his above promotion was not regularized as per rules. Thus, this Court holds that the appellant is not entitled to get the benefit of seniority from the date of his initial appointment in the promotional post on ad- hoc basis. At best, he can get the benefit of his seniority from the date of regularization of his service in the promotional post. Thus, this Court does not find any illegality or infirmity in the said order. As such no interference with the impugned order is necessary in the facts of the instant case. This appeal thus stands dismissed.