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2012 DIGILAW 924 (MP)

Ram Naresh Singh Tomar v. State of M. P.

2012-09-24

A.K.SHRIVASTAVA, G.D SAXENA

body2012
ORDER Shrivastava, J. -- 1. The order passed in this writ appeal shall also govern the disposal of connected Writ Appeal No.389/2012 (State of M.P. and another v. Ramveer Singh Tomar and others) and Writ Appeal No.208/2012 (Arun Pratap Singh and another v. State of M.P. and others) since all these three appeals have arisen out of a common order dated 8.2.2012 passed by learned Writ Court. 2. The order dated 8.2.2012 passed by learned Writ Court in Writ Petition No.837/2012 (s) has been made pivot by the appellant by filing an appeal under section 2(1) of Madhya Pradesh Khand Nyaypeeth Ko Appeal Adhiniyam, 2005. 3. In this bunch of three writ appeals the only question which is to be taken into account is that whether the State Government rightly issued the orders dated 15.1.2009 (Annexure P-1) and 17.2.2009 (Annexure P-1A) whereby appellant Ram Naresh who was arrayed as respondent No.3 in the writ Court has been rightly given inter se seniority over the writ petitioners. During the pendency of the writ petition writ petitioner No.1 Shyam Singh Sikarwar died and his name was deleted from the cause title by further changing the seriatim of writ petitioners. Undisputedly, vide Annexure A-2 dated 31.10.1985 the applications were invited to recruit the suitable candidates on ad hoc basis on the post of Senior Horticulture Development Officer (in short, SHDO). 4. The appellant was appointed on ad hoc basis as per order dated 5.2.1986 for a period of six months or till appointment is made by the Mini Public Service Commission (in short, called Mini-PSC) whichever is earlier. Later on, the appellant also appeared in the Mini-PSC. However, in the merit list prepared by the Mini-PSC he was placed at serial No.93 and thus his seniority was fixed below the writ petitioners/respondents No.3 to 6. Later on, the State Government published the gradation list showing the position as on 1.4.2005 wherein also name of the appellant (respondent No.3 before writ Court) was shown below the writ petitioners. Thereafter various employees including the appellant who were appointed on ad hoc basis submitted their representations claiming their seniority by computing the ad hoc period. Later on, the State Government published the gradation list showing the position as on 1.4.2005 wherein also name of the appellant (respondent No.3 before writ Court) was shown below the writ petitioners. Thereafter various employees including the appellant who were appointed on ad hoc basis submitted their representations claiming their seniority by computing the ad hoc period. In order to decide the representations, the State Government constituted a Committee who submitted its report dated 14.9.2000 and recommended that the seniority of SHDO’s be granted in accordance with the Madhya Pradesh Agriculture (Horticulture) Non-Gazetted (Non-Ministerial) Service Recruitment Rules, 1987 (in short, Recruitment Rules of 1987) and the representations including the representation of the appellant, were rejected. Thereafter, respondent No.3 submitted another representation upon which the impugned order dated 17.2.2009 Annexure P-1A was passed in favour of the appellant by respondents 2 and 3 holding him to be senior in the gradation list to that of writ petitioners by counting his ad hoc service period and hence the writ petition was filed by the writ petitioners/respondents 3 to 6. 5. The learned writ Court allowed the writ petition by holding that ad hoc service period of the appellant cannot be counted in order to compute his seniority and having faced the Mini-PSC, the names of writ petitioners were placed above the appellant, therefore, for the purpose of inter se seniority he cannot be treated as senior to the writ petitioners. 6. The contention of Shri Vivek Jain, learned counsel for the appellant is that in view of two decisions of Supreme Court Wing Commander, J. Kumar v. Union of India and others [ AIR 1982 SC 1064 ], and The District Recruit Class II Engineering Officers’ Association and others v. State of Maharashtra and others [ AIR 1990 SC 1607 ], the ad hoc service period of the appellant should be counted to compute the inter se seniority. Hence, it has been prayed that by allowing this appeal and connected Writ Appeals No.389/2012 and 208/2012, the order passed by learned writ Court be set aside and the writ petition be dismissed. 7. Hence, it has been prayed that by allowing this appeal and connected Writ Appeals No.389/2012 and 208/2012, the order passed by learned writ Court be set aside and the writ petition be dismissed. 7. On the other hand Shri S.C. Sharma and Shri Jitendra Sharma, learned counsel appearing for the respondents 3 to 6 argued in support of the impugned order and submitted that before 1982 there was one Department of Agriculture, however, in the year 1982 with effect from 12.2.1982 it was bifurcated into two departments namely Horticulture and Agriculture Department. Learned counsel submits that in the advertisement there was no substantive vacancy and on the basis of the vacancies of future, the advertisement was issued for recruitment to the post of SHDO on ad hoc basis. Learned counsel by placing reliance on rule 12(4) of M.P. Civil Services (General Conditions of Service) Rules, 1961 (in short Rules of 1961) and by putting more emphasis to clause (b) of sub-rule (4) of rule 12 has submitted that if the recruitment was substantively made according to the recruitment rules and the appointee continues on the post uninterruptedly till the regularization of his services in accordance with the rules, the periodof officiating service shall be counted for the seniority but the appellant was never appointed on the basis of the procedure laid down by the Recruitment Rules of 1987, but he was appointed on ad hoc basis and not in accordance to any rule. It has also been put forth by learned counsel that the Madhya Pradesh Regularization of Ad-hoc Appointment Rules, 1986 came into force for one year only and no benefit was given to the appellant under these rules also. In support of his contention learned counsel has placed heavy reliance on the decision of Supreme Court State of Rajasthan and others v. Jagdish Narain Chaturvedi [ (2009)12 SCC 49 ], and submitted that if the ratio of this decision is tested on the touchstone and anvil of the present factual scenario, the appellant has no case. Learned counsel further submits that learned writ Court has assigned cogent reasons in allowing the writ petition and hence prayed that this appeal and connected Writ Appeals 389/2012 and 208/2012 be dismissed. 8. Having heard learned counsel for the parties, we are of the view that this appeal and connected Writ Appeals 389/2012 and 208/2012 deserve to be dismissed. 9. Learned counsel further submits that learned writ Court has assigned cogent reasons in allowing the writ petition and hence prayed that this appeal and connected Writ Appeals 389/2012 and 208/2012 be dismissed. 8. Having heard learned counsel for the parties, we are of the view that this appeal and connected Writ Appeals 389/2012 and 208/2012 deserve to be dismissed. 9. In the present case if the appointment letter of the appellant dated 30.11.1985 is considered in true perspective, it would reveal that he was appointed on the post of Senior Horticulture Development Officer on ad hoc basis for a period of six months with a further condition that he has to face Mini-PSC whichever is earlier in the pay-scale of Rs.900-1450/-. Thus, the appellant was required to face Mini-PSC and his appointment was subjected to the result of Mini-PSC. This order was never challenged by the appellant. Thereafter, the appellant also faced the Mini-PSC and was also found fit for selection on the post of SHDO. However, his name figured below the writ petitioners. In the regular appointment letter dated 28.10.1989 after facing the Mini-PSC, specifically in clause 8 it has been mentioned that the inter se seniority shall be fixed in accordance to the merit given in the appointment letter and thus writ petitioners were shown above the name of appellant. According to us, the inter se seniority should be given in terms of the seniority fixed in the appointment letter dated 28.10.1989. Further, since in the appointment letter of the appellant dated 30.11.1985 itself there was a condition that his appointment shall be subject to selection by Mini-PSC, according to us, the inter se seniority should also be computed in terms of the appointment letter of the appellant dated 28.10.1989 specifying in clause 8 therein that inter se seniority shall be in terms of select list made by Mini-PSC. 10. Learned counsel for the appellant could not point out under which rules on 5.2.1986 the appellant was appointed on ad hoc basis. There is no averment in the writ petition as well in this regard. Thus, the appointment of the appellant was not on regular basis and, therefore, in his appointment letter it has been specifically mentioned that his appointment is on ad hoc basis subject to the result of the PSC in which he was required to appear. There is no averment in the writ petition as well in this regard. Thus, the appointment of the appellant was not on regular basis and, therefore, in his appointment letter it has been specifically mentioned that his appointment is on ad hoc basis subject to the result of the PSC in which he was required to appear. Under the Madhya Pradesh Regularization of Ad hoc Appointment Rules, 1986 also, the services of appellant were not regularized. The Recruitment Rules of 1987 came later on and earlier to it the appellant was appointed on ad hoc basis. Hence, according to us, he was not appointed on regular but on ad hoc basis. Merely because the appellant was sent for training etc. it would not confer any right on him that his appointment was made in accordance to a particular rule. 11. The advantage of rule 12(4) of the Rules of 1961 which is being relied by learned counsel for the appellant is not applicable for the simple reason that in clause (b) of rule 4 itself it has been mentioned that if the appointment on ad hoc basis by substantially following the procedure laid down by the Recruitment Rules is made and the appointee continued uninterruptedly on that post till his services were regularized, service of ad hoc period shall be counted. However, in the present case it could not be pointed out by learned counsel for the appellant that under which Service Conditions Rules the appointment of the appellant was made, on the contrary it has been borne out that he was appointed only on ad hoc basis with a further stipulation that he has to face the Mini-PSC and, therefore, according to us, in this backdrop the decisions of Wing Commander and The District Recruit Class II Engineering Officers’ Association (supra), placed reliance by learned counsel for the appellant are not applicable and indeed the decision of Supreme Court in Jagdish Narain (supra), is squarely applicable. In this regard paras 17 and 18 of the aforesaid decision is quite relevant and which we would like to quote as under : “17. The present stand that the initial appointment was substantive appointment is contrary to the factual position because in each case the proficiency test was undertaken and the appointment letter shows that the appointment was till selected candidates join. The present stand that the initial appointment was substantive appointment is contrary to the factual position because in each case the proficiency test was undertaken and the appointment letter shows that the appointment was till selected candidates join. Additionally, even if the proficiency test is passed the question of eligibility is of relevance, “when the vacancy occurs”. So far as daily-wage services are concerned, there is no scale of pay and the lowest figure scale of pay has to be given. According to Fundamental Rule 9(4), “cadre” means the strength of a service or part of service sanctioned as a separate unit. 18. In order to become “a member of service” a candidate must satisfy four conditions, namely -- (i) the appointment must be in a substantive capacity; (ii) to post in the service i.e. in a substantive vacancy; (iii) made according to rules; (iv) within the quota prescribed for the source. Ad hoc appointment is always to a post but not the cadre/service and is also not made in accordance with the provisions contained in the recruitment rules for regular appointment. Although the adjective “regular” was not used before the words “appointment in the existing cadre/service” in para 3 of the G.O. dated 25.1.1992 which provided for selection pay-scale the appointment mentioned there is obviously a need for regular appointment made in accordance with the Recruitment Rules. What was implicit in the said paragraph of the G.O. when it refers to appointment to a cadre/service has been made explicit by the clarification dated 3.4.1993 given in respect of point 2. The same has been incorporated in para 3 of the G.O. dated 17.2.1998.” 12. In the present case, the ad hoc appointment of the appellant was not made on any substantive capacity and was also not in the substantive vacancy. It has also not been pointed out that appointment was made in terms of any rules and within the quota prescribed for the source. In the present case, the ad hoc appointment of the appellant was not made on any substantive capacity and was also not in the substantive vacancy. It has also not been pointed out that appointment was made in terms of any rules and within the quota prescribed for the source. Since ad hoc appointment is always to a post but not to the cadre/service and is also not made in accordance with the provisions made in the Recruitment Rules of 1987 for regular appointment nor it can be so because before coming into force of these Rules of 1987 the appellant was appointed on ad hoc basis, therefore, according to us the ad hoc service period of appellant cannot be counted for the purpose of computing the inter se seniority between him and the writ petitioners. 13. So far as the applicability of the Rules of 1987 is concerned, if rule 23 which speaks about repealing clause is taken into consideration, we find that since no order was made in favour of the appellant for regularization prior to coming into force of these rules, on the contrary he was directed to face the Mini-PSC which he faced in the year 1989, therefore, these Rules of 1987 are also not helpful to the appellant. 14. We have also gone through the reasonings assigned by learned Writ Court allowing the writ petition and we find that cogent reasons have been assigned and we do not find any ground to interfere in this intra-Court appeal. 15. Resultantly, this appeal and connected Writ Appeal No.389/2012 (State of M.P. and another v. Ramveer Singh Tomar and others) and Writ Appeal No.208/2012 (Arun Pratap Singh and another v. State of M.P. and others) fail and are hereby dismissed. No costs. Let a copy of this order be kept in the record of Writ Appeals No.389/2012 and 208/2012.