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2014 DIGILAW 1023 (GAU)

Mitali Bora v. Bhabotosh Kumar Roy

2014-11-28

INDIRA SHAH, K.SREEDHAR RAO

body2014
JUDGMENT K. Sreedhar Rao, Actg. C.J. 1. The appellants and the contesting respondent were appointed as Demonstrators in the year 1991 in the Regional Dental College, Guwahati. The appointments of the appellant was challenged in the Civil Rule No. 976 of 1992 on the ground that he did not possess requisite qualification as on the last date of application. The said writ petition was allowed. The appointment of the appellant was set aside. The appellant filed SLP before the Supreme Court, which came to be dismissed. Later on the appellant filed a review petition. The review petition came to be allowed with a direction that the appellant may be continued in service and regularization of service, if any, should be in accordance with law. The appellant continued in service without regularization. The appellant was regularized in the year 2005. The respondent challenged the regularization on the ground that the appellant did not possess proper qualification; therefore, he should not be regularized. The respondent challenged the said order of regularization and as well the promotion. The appellant filed 3 writ petitions, namely, WP(C) No. 987/01, 3371/02 and 2884/03. This Court passed the following order in the connected writ petitions, WP(C) No. 2884 of 2003: "WP(C) No. 2884 of 2003 11. The claim in the present writ application is for seniority of the writ petitioner over the respondents No. 5 to 8. In the connected writ petition i.e. WP(C) No. 3371/2002, the orders of regularization of the respondents No. 5 to 8 with effect from the date of initial appointment of the said respondents has been interfered with by this Court and the matter has been left to be decided at the wisdom of the State Government and the Public Service Commission. As the regularization orders of the respondents No. 5 to 8 have been set aside the petitioner naturally has to be considered to be senior, as on date, to the respondents No. 5 to 8. However, it is made clear that such seniority will be liable to be redetermined subject to any such decision that may be taken by the Government and the Public Service Commission in the case of the respondents No. 5 to 8 and further subject to such decision, as may be taken, being found to be valid in law." 2. However, it is made clear that such seniority will be liable to be redetermined subject to any such decision that may be taken by the Government and the Public Service Commission in the case of the respondents No. 5 to 8 and further subject to such decision, as may be taken, being found to be valid in law." 2. Pursuant to the aforesaid order, the Government of Assam, in consultation with the Public Service Commission, regularized the service of the appellant herein and the respondent was placed junior to the appellant in the seniority. 3. The respondent aggrieved by the said order of regularization in the year 2005 and fixing the seniority above him filed the writ petition, in question. The learned Single Judge has found that the order of regularization of the appellant herein is bad in law and that the appellant has to go through the regular selection process. The appellant aggrieved by the said order, has filed this appeal. 4. The counsel for the appellant has relied upon the decision of the Supreme Court in M.A. Murthy Vs. State of Karnataka & Ors., reported in (2003) 7 SCC 517, wherein the respondent No. 4 before the Supreme Court was not qualified to make an application. In paragraphs 7 to 9 following observations are made: "7. A writ appeal was filed before the Division Bench. The view of the learned Single Judge was affirmed by the Division Bench. A review application was filed inter alia taking the stand that the view in Ashok Kumar Sharma's case No. 1 has been later on over-ruled in Ashok Kumar Sharma and Ors. V. Chander Shekhar and Anr. ( 1997 (4) SCC 18 ) (described hereinafter as Ashok Kumar Sharma "case No. II"). Therefore, a review of the judgment of the Division Bench was necessary. The High Court by the impugned judgment held that though admittedly on 18.7.1995 i.e. on the date of advertisement the respondent No. 4 was not qualified to make an application, yet few dates and facts are relevant. He had appeared for the M.B.A. examination in April 1995 and the results were declared on 4.9.1995. The written examination was held on 1.10.1995 and viva voce was conducted on 25.11.1995. At least by the time the written examination and the viva voce tests were held, he had acquired the requisite qualification. He had appeared for the M.B.A. examination in April 1995 and the results were declared on 4.9.1995. The written examination was held on 1.10.1995 and viva voce was conducted on 25.11.1995. At least by the time the written examination and the viva voce tests were held, he had acquired the requisite qualification. Judgment in Ashok Kumar Sharma's case No. I was delivered on 18.12.1992 and decision in the review petition in the said case was rendered on 10.3.1997. The appointment of respondent No. 4 was made when the earlier decision of Ashok Kumar Sharma's case No. I held the field. It was, therefore, held that on the date of selection, the first judgment held the field; and, therefore, by applying logic of that decision the selection of respondent No. 4 cannot be questioned. 9. That brings us to the ticklish question as to how the reliefs can be moulded. It is not in dispute that subsequently the appellant has also been appointed on 9.11.2002. Though it was permissible for this case to set aside the appointments of respondent No. 4 and respondent No. 5, on the peculiar facts of this case, we consider it to be not called for and the rights of parties instead could be adjusted by working out equities, in the interests of substantial justice by adopting a different course. The appellant shall rank senior to respondent No. 4 by treating his appointment to be with effect from the date of selection of respondent No. 4. This shall be only for the purpose of fixing the seniority and continuity of service only not for entitlement to any salary or other financial benefits. As respondent No. 5 was only in the waiting list, and it is stated that he has been subsequently appointed, he will also rank below the appellant and respondent No. 4. The appeals are accordingly allowed. There shall be no order as to costs." 5. The counsel alternatively submitted that as per the decision of the Supreme Court in State of Karnataka & Ors Vs. Uma Devi (III) & Ors., reported in (2006) 4 SCC 1 , the appellant had put in continuous service of more than 10 years the decision was rendered in 2006 and regularization of service was done earlier to Uma Devi's case (supra). Therefore, the order of learned Single Judge in setting aside the regularization is bad in law. Uma Devi (III) & Ors., reported in (2006) 4 SCC 1 , the appellant had put in continuous service of more than 10 years the decision was rendered in 2006 and regularization of service was done earlier to Uma Devi's case (supra). Therefore, the order of learned Single Judge in setting aside the regularization is bad in law. The counsel for the appellant, however, conceded that the respondent may be placed senior to him in the seniority list and he has no objection. 6. Upon thorough consideration of the facts and materials placed on record, the decision of this Court in WP(C) No. 987/01, 3371/02 & 2884/03, although set aside the regularization, but made a specific order directing the Government to consult the Public Service Commission before regularization of the appellant The Government, in accordance with the said direction, consulted the Public Service Commission and regularized the service. The order of the learned Single Judge at this length of time to set aside the regularization of the appellant as illegal, may be inequitable in law. The regularization may be irregular, but not per se illegal, in view of the judgment of the Supreme Court in M.A. Murthy (supra) cited above. This Court, in earlier writ petitions had directed that the Government apart from regularization of service in consultation with Public Service Commission should also work out the seniority accordingly. The normal rule in service jurisprudence, would be, if there is any regularization, the service period should be counted from the date of regularization and not from the earlier period of service. In that view of the matter, regularization of the appellant has been taken place in 2005, his seniority should be counted only from the date of regularization. Therefore, the respondent would be senior to the appellant herein. However, for service benefit although the regularization order of 2005 states that his regularization is retrospective from the year 2001, the same is set aside and his date of initial appointment from 1991 shall be counted only for continuity of service to the benefit of pension and not for the purpose of seniority. Accordingly, the appeal is allowed. The connected Miscellaneous Case No. 2396/2012 is also disposed of. Disposed off