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2011 DIGILAW 559 (UTT)

HANSA DUTT PANDEY v. STATE OF UTTARAKHAND

2011-09-07

BARIN GHOSH, V.K.BIST

body2011
JUDGMENT In these writ petitions, the contention is that the petitioners are entitled in law to be placed higher up than the respondents in the seniority list prepared, settled and finalized by the State Government. The facts to which there appears to be no dispute, are that in 2003, the petitioners acquired the status of full fledged Tehsildars and simultaneously therewith became entitled to be promoted to the posts of Deputy Collector. There is also no dispute as pleaded specifically in the counter affidavit filed by the State that in 2003 itself the State came to know about the number of posts available in the cadre of Deputy Collector. In 2004, petitioners were given ad-hoc promotion to the posts of Deputy Collector. In 2005, steps taken for direct recruitment to the posts of Deputy Collector were completed and on 18th July, 2005 the respondents were appointed as direct recruitees to the posts of Deputy Collector. Subsequent thereto, in 2006 Uttarakhand Public Service Commission selected the petitioners for being promoted to the posts of Deputy Collector. The petitioners accordingly, were given appointment to the posts of Deputy Collector with effect from 1st March, 2007. In the circumstances, the State proceeded on the basis that since the private respondents were appointed substantively on 18th July, 2005, whereas the petitioners were promoted substantively on 1st March, 2007, the private respondents are senior to the petitioners and accordingly, prepared the seniority list showing the petitioners as juniors to the private respondents. 2. In these writ petitions, it is being contended by the petitioners that their substantive appointments, as were accorded on 1st March, 2007, in terms of the Rules governing such appointments, would relate back to the date of their initial ad-hoc appointments given in the year 2004 and accordingly, the petitioners shall be deemed to be senior to the private respondents on the basis of their substantive appointments. 3. There is no dispute that in 2004 the Rules known as U.P. Civil Servants (Executive) Branch Rules, 1982 governed the subject appointments/promotions. In terms thereof, as defined therein, a substantive appointment is such an appointment, which is not an ad-hoc appointment, made after selection in accordance with the Rules. 3. There is no dispute that in 2004 the Rules known as U.P. Civil Servants (Executive) Branch Rules, 1982 governed the subject appointments/promotions. In terms thereof, as defined therein, a substantive appointment is such an appointment, which is not an ad-hoc appointment, made after selection in accordance with the Rules. Rule 16 of the said Rules made it clear that recruitment by promotion to the ordinary cadre shall be made on the basis of merit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time. Rule 20 of the 1982 Rules is as follows :- “20. Appointment.- (1) Subject to the provisions of sub-rule (2), the appointing authority shall make appointment by taking the names of candidates in the order in which they stand in the lists prepared under Rule 15, 16 or 19 as the case may be. [(2) If more than one orders of appointment are issued in respect of any one selection, a combined order shall also be issued mentioning the names of persons in order of seniority as determined in the selection: Provided that where a person was promoted and his promotion is subsequently approved by the Commission, the entire continuous officiating service rendered by him on a post within the promotee quota shall be taken into consideration for the purpose of this Rule. If in any year of recruitment appointments are made both by direct recruitment and by promotion, names shall be arranged in accordance with the cyclic order, referred to in Rule 19].” 4. Rule 23 of the 1982 Rules provided that seniority of persons substantively appointed in the service shall be determined in accordance with Uttar Pradesh Government Servants Seniority Rules, 1991. By Rule 23 of the 1982 Rules, therefore, it was declared that an ad-hoc appointee cannot claim seniority. Be that as it may, the Uttar Pradesh Government Servants Seniority Rules, 1991 also make it clear that an ad-hoc appointee is not entitled to treat his appointment as a substantive appointment, and only a substantive appointee is entitled to seniority to be counted from the date of his substantive appointment. 5. In 2004, the petitioners were ad-hoc appointees/promotees. Such ad-hoc appointment/promotion did not entail seniority of the petitioners to be counted in the cadre of Deputy Collector. 5. In 2004, the petitioners were ad-hoc appointees/promotees. Such ad-hoc appointment/promotion did not entail seniority of the petitioners to be counted in the cadre of Deputy Collector. The question is whether by reason of the provisions contained in Rule 20 of the 1982 Rules, the regular appointment/promotion given to the petitioners after consultation with Commission will or will not relate back to the date the petitioners were appointed on ad-hoc basis. 6. In the rejoinder affidavit, petitioners contended that at the time when ad-hoc appointments/promotions were given to them, a regular DPC was held. Since such a plea was taken in the rejoinder affidavit, the State did not get an opportunity to deal with the same. However, the learned counsel appearing on behalf of the State despite our inquiry whether the State wants to deal with the said contention specifically by filing an additional affidavit did not seek such an opportunity and at the same time proceeded on the basis that such ad-hoc appointments were given after holding a regular DPC. 7. The said state of affair clearly indicated that at the time of giving ad-hoc promotions to the petitioners, people, who were eligible to be promoted then, were considered and amongst them only those, who had been found suitable by the DPC, were accorded promotions. The fact remains that such promotions cannot be treated as promotions in accordance with the Rules and accordingly, such promotions cannot be said to be substantive promotions/appointments. If such a promotion is subsequently approved by the Commission, then in terms of the proviso to Sub Rule 2 of Rule 20 of the 1982 Rules, will or will not the substantive appointment accorded on such approval, relate back to the date of original appointment, is the question. A look at proviso to Sub Rule 2 of Rule 20 of the 1982 Rules would make it amply clear that the same is not an exception to Sub Rule 2 of Rule 20 of the said Rules, but is an independent provision dealing with the Rule in question in whole. In other words, the proviso deals with the appointment being the subject matter of the said Rule. In other words, the proviso deals with the appointment being the subject matter of the said Rule. In that background, consideration of the entire continuous officiating service for the purpose of the Rule, in view of direction contained in Sub Rule 1 pertaining to appointment, indicates, in no uncertain terms, appointment on and from the first date of such continuous officiating service to be considered. In other words, in so many words it prepones the date of appointment to the date when the person concerned starts continuous officiating service. Such an appointment being in terms of Rules and not being an ad-hoc appointment any longer, in terms of the 1982 Rules as well as in terms of the 1991 Rules is a substantive appointment. 8. In Direct Recruit Class II Engineering Officer’s Association vs. State of Maharashtra and others reported in (1990) 2 Supreme Court Cases, 715 the Hon’ble Supreme Court has held, amongst others :- “(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 continuous in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.” 9. Therefore, the Hon’ble Supreme Court has pronounced that if an ad-hoc appointment is converted into a regular appointment and the person concerned continued to serve as an ad-hoc appointee uninterruptedly till his regularization, the service that he rendered while discharging duties as an ad-hoc employee shall be counted, obviously towards seniority. The logic behind the same is that when an irregular appointment is regularized, the regularization, in the absence of something more indicated in the Rules, would relate back to the date of the original appointment, provided the irregular appointee continued until his regularization. The principle laid down by the Hon’ble Supreme Court in the above judgment has been followed in many other judgments of the Hon’ble Supreme Court. The principle laid down by the Hon’ble Supreme Court in the above judgment has been followed in many other judgments of the Hon’ble Supreme Court. In L. Chandrakishore Singh vs. State of Manipur and others, reported in (1999) 8 Supreme Court Cases, 287, at paragraph 15 of the report, the Supreme Court has observed that it is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority and shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. The same view has also been expressed by the Hon’ble Supreme Court in G.P. Dobhal vs. Government of Uttar Pradesh taken note of by the Hon’ble Supreme Court in L. Chandrakishore Singh (supra) as well as in S. Sumnyan and others vs. Limi Niri and others reported in (2010) 6 Supreme Court Cases, 791. 10. Therefore, in law, it was permissible for the law makers to provide for what had been pronounced in the said judgments of the Hon’ble Supreme Court and accordingly, what was provided in the proviso to Rule 20 of the 1982 Rules, was strictly legal. 11. In the counter affidavit, it has been contended by the State that the Commission was not approached by the State for obtaining approval to the appointments given to the petitioners in 2004. In addition to that, it was contended by the State that in 2005, a new set of Rules were made by the State of Uttarakhand where in the Hindi version of the Rules, the proviso is absent, although the same is present in the English version of the Rules. The fact remains that the Rules made by the State as published by it in the Official Gazette suggest existence of the proviso. The said proviso is identically worded as that of the proviso contained in the 1982 Rules. The fact remains that the Rules made by the State as published by it in the Official Gazette suggest existence of the proviso. The said proviso is identically worded as that of the proviso contained in the 1982 Rules. The Rules thus made and published by the State should be deemed to be the Rules and not the omission of the proviso in the Hindi version, which should be regarded as a slip or a mistake on the part of the publisher, who published the Rules in the Official Gazette. Further more, in terms of Sub Article 3 of Article 248 of the Constitution of India, the Rules published in the Official Gazette in English, are required to be regarded as the correct translation of the Rules made by the State. In such view of the matter, for all practical purposes, it must be deemed that the same proviso as was there in Rule 20 of the 1982 Rules, continuous to exist even now. 12. When the Rule authorised the Commission to approve an earlier irregular promotion, it was obligatory on the part of the State to send the irregular/ad-hoc appointment of the petitioners to the Commission for its approval. Because the State has not done so, the State cannot take away the rights given to the petitioners by the Rules. In the letter written to the Commission requesting the Commission to select for promotion eligible Tehsildars, it was indicated that the petitioners and if not all the petitioners, some of them were working on ad-hoc basis as Deputy Collectors. The Commission in the circumstances, was also obliged to consider whether to give or not to give approval to the promotions given to those people. In any event, whether approval to the appointments has been given or independently the Commission has adjudged suitability of the petitioners for being promoted is of no consequence inasmuch as in the matter of giving approval to an earlier appointment, the Commission is also required to adjudge the suitability of the person for being promoted. The moment the Commission found the petitioners suitable for being promoted and accordingly, made a recommendation for promoting them, acceptance of such recommendation, in terms of the mandate of the proviso of Rule 20 of the said Rules, entailed preponing of such acceptance of recommendation to the date of original appointment of the petitioners. 13. The moment the Commission found the petitioners suitable for being promoted and accordingly, made a recommendation for promoting them, acceptance of such recommendation, in terms of the mandate of the proviso of Rule 20 of the said Rules, entailed preponing of such acceptance of recommendation to the date of original appointment of the petitioners. 13. The learned counsel for the private respondents has drawn our attention to the judgment of the Hon’ble Supreme Court in the case of Santosh Kumar and others Vs. G.R. Chawla and others, reported in (2003) 10 Supreme Court Cases 513 for the preposition that service rendered on ad-hoc appointment cannot be counted for the purpose of seniority. In that case ad-hoc appointments were converted into regular appointments in terms of Rules specifically made therefore, and in those Rules it had been specifically provided that an ad-hoc employee, who would stand regularized, would be entitled to seniority from the date of his regularization. In the instant case, the Rules in question speaks otherwise and accordingly, that judgment has no relevance whatsoever to the present case. 14. We accordingly, allow the writ petitions and strike down the seniority list of Deputy Collectors prepared by the State Government. We direct the State Government to prepare a final seniority list of Deputy Collectors within six months from today treating that the regular appointments given to the petitioners on 1st March, 2007, relate back to the date they were appointed on ad-hoc basis in 2004. It is made clear that before the final list is made and published, a tentative list must be published inviting objections but no objection contrary to the pronouncement as above, shall be entertained.