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2014 DIGILAW 606 (GAU)

Nirmali Hazarika v. State of Assam

2014-06-06

TINLIANTHANG VAIPHEI

body2014
JUDGMENT Tinlianthang Vaiphei, J. 1. In this writ petition, the petitioners are questioning the legality of the Cabinet Memorandum dated 26.2.2003 and the consequential order dated 26.2.2003 regularizing the services of the private respondents with retrospective effect and the gradation list prepared therefore placing them below the private respondents. The petitioner No. 1 was appointed as Lecturer in Botany on 24.4.1987 at the State Institute of Science Education (SISE), Assam on ad-hoc basis, and was regularised in that post with effect from 20.3.1992 in terms of the order dated 8.4.1992 issued by the Education Department, Assam. On 22.3.2002, she was appointed as Academic Officer (Biological Science) in the Board of Secondary Education, Assam on probation for a period of two years. Subsequently, on the recommendation of the Assam Public Service Commission (APSC), she was promoted to the rank of Reader in the State Council of Educational Research and Training (SCERT), Guwahati by the notification dated 27.3.2002. The petitioner No. 2 was appointed as Lecturer in Physics in the SCERT in terms of the Notification dated 29.6.1992 on ad-hoc basis, and was appointed as Lecturer in the State Institution of Science Education on 14.9.1993 after obtaining the approval of the APSC. She, along with the petitioner No. 1, was promoted together by the same notification dated 27.3.2002. 2. According to the petitioners, both of them have been urging the respondent authorities to prepare the gradation list of Officers in the cadre of Reader/Assistant Director/Controller of Examination of SCERT, Assam and thereafter initiate the process for filling up the vacant posts in the next higher cadre of Deputy Director, etc., but in vain. The draft gradation list showing such officers prepared by the SCERT Officers' Association was submitted before the respondent No. 2 as early as 2007, but no action has been taken by them till now even though there are few posts of Deputy Director lying vacant even though few posts are occupied by the Assam Education Service (AES) personnel. They have also pointed out that a few personnel who had been originally appointed in the centrally sponsored temporary scheme viz. EOSE (Environment Orientation to School Education) project, presently adjusted against SCERT after winding up the scheme, applied for promotion to the higher post of the same cadre by claiming seniority from the date of initial joining in the project. They have also pointed out that a few personnel who had been originally appointed in the centrally sponsored temporary scheme viz. EOSE (Environment Orientation to School Education) project, presently adjusted against SCERT after winding up the scheme, applied for promotion to the higher post of the same cadre by claiming seniority from the date of initial joining in the project. They were, nevertheless, so promoted without going through the regular process of recruitment conducted by the APSC against ex-cadre posts: such posts were personnel to them and would cease to exist after their retirement. Even then, according to the petitioners, these appointees are claiming counting of their seniority from the date of initial joining of their services. 3. The further case of the petitioners is that they have come to learn that a gradation list was prepared, which was forwarded by the respondent No. 2 to the respondent No. 1 vide the letter dated 31.5.2010 wherein the names of the respondents No. 3, 4 and 5 were placed above their names despite the request made by them to the contrary. The petitioner No. 1 through his letter dated 25.6.2010 addressed to the respondent No. 1 raised objection against the said gradation list making her junior to the respondent No. 3, 4 and 5 and prayed for fresh preparation of the gradation list reflecting her seniority above them. The petitioners along with two officers in their cadre by the letter dated 20.7.2011 addressed to the Principal Secretary to the Government of Assam, Department of Personnel (B) prayed for finalization of the gradation list of officers in the cadre of Readers, etc. for promotion to the post of Deputy Director of SCERT by counting the seniority of the respondents No. 3, 4 and 5 from the date of their regularization/Cabinet decision and not from the date of their initial appointment. At this stage, it may be noted that the petitioner No. 2, who admittedly belongs to Scheduled Caste (SC) community, claims that she is the senior-most Reader among SC community and points out that till now the post of Deputy Director has not been filled up by any SC candidate. She complains that all Departments except the SCERT have been promoting SC/ST candidates and that though the posts are lying vacant, she has not been promoted for the last ten years though she belongs to SC community. 4. She complains that all Departments except the SCERT have been promoting SC/ST candidates and that though the posts are lying vacant, she has not been promoted for the last ten years though she belongs to SC community. 4. According to the petitioners, they are apprehending that the respondent authorities are thinking of promoting the said respondents to the post of Deputy Director, and have now, to realize such objective, entrusted them with some duties in addition to their normal duties. It is contended by the petitioners that as per Rule 11(2)(ii) of the State Council of Educational Research and Training Rules, 2005 ("the Rules" for short), a member of the cadre of Reader, etc. shall be eligible for promotion to the post of Deputy Director/Vice Principal, SIE/Officer-in-Charge, ET, Cell, if he has rendered service in the cadre for a minimum of 5 years from the date of his regularization by the APSC and, they, having completed ten years of service in the post of Reader, SCERT, Assam, are thus eligible for promotion to the post of Deputy Director. According to the petitioners, the respondent No. 3, 4 and 5, whose ad-hoc services were regularized with retrospective effect from 12.1.90, 15.9.93 and 15.12.93 by a Cabinet memorandum in terms of the notification dated 7.3.2003 and without going through the APSC, cannot steal a march over them. The petitioners, therefore, submit that the Cabinet Memorandum dated 26.2.2003 and the consequential order dated 7.3.2003 by which the private respondents were regularized with retrospective effect are liable to be quashed. They also pray for quashing the impugned gradation list placing them below the said respondents, finalize the gradation list by placing them above the said respondents and consider the case of the petitioners for promotion to the post of Deputy Director. 5. The writ petition is opposed by both the State-respondents and the private respondents, who have now filed their respective affidavits-in-opposition. It is pointed out by the State-respondents that the private respondents were originally appointed under the Environment Orientation to School Education scheme (EOSE), but in the year 1993-94, these posts were brought under the State Plan Budget of the Government of Assam and were subsequently retained permanently in the Directorate of State Council of Education Research and Training (SCERT), Assam w.e.f. 1.1.2002 vide the notification dated 21.8.2002. Their services together with the services of some other incumbents were regularized in terms of the Notification dated 7.3.2003 issued by the Education (Elementary) Department, Government of Assam with retrospective effect i.e. from 6.1.1990, 15.9.1993 and 15.12.1993 with the approval of the State Cabinet. This was done before the coming into force of the Rules. As a matter of fact, one Shri Bogadhar Deori, whose service was regularized along with the private respondents, was already promoted to the post of Joint Director, SCERT vide the notification dated 31.12.2008. The additional assignment given to the private respondents is not a reflection of the intention of the State-respondents to promote them to a higher post. The post held by the private respondents i.e. Assistant Director and Project Officer comes within the purview of Rule 3 of the Assam SCERT Service Rules, 2005, and they were promoted to the cadre of Vice-Principal, SIE, Deputy Directors and Officers-in-Charge, E.T. Cell under Rule 5(1)(c) of the Rules. According to the State-respondents, the private respondents have completed more than 18 years of continuous service on regular basis as on 1.4.2012 in the cadre of Reader, etc., whereas the petitioners have only completed 10 years of service in the cadre of Reader, etc. as on 1.4.2012. The answering respondents deny that there was no post under the Environment Orientation to School Education (EOSE). The posts held by the private respondents were permanently retained in the Directorate of SCERT, Assam w.e.f. 1.1.2002 and till 2002, they had been annually retained under the EOSE. As there were no SCERT Services Rules when the services of the private respondents were regularized, the question of violation of rules in the course of their regularization does not arise; the SCERT Service Rules, 2005 came into force only with effect from 16.11.2005. These are the contentions of the State-respondents. 6. While adopting the stance taken by the respondent authorities, the private respondents in their affidavit also submits that there is inordinate delay in filing the writ petition by the petitioner: they did not bother to explain the delay often years from 2002 to 2012 in approaching this Court. The petitioner No. 1 had joined as Reader, SCERT only on 25.5.2004 though she was promoted on 27.3.2002, but the private respondents joined the post of Assistant Director and Project Officer in the year 1990 and 1993 respectively. The petitioner No. 1 had joined as Reader, SCERT only on 25.5.2004 though she was promoted on 27.3.2002, but the private respondents joined the post of Assistant Director and Project Officer in the year 1990 and 1993 respectively. The petitioner No. 2 does not even possess B. Ed degree, which is an essential qualification for the post of Lecturer and the subsequent promotions under the Rules. At the time of their permanent retention as Assistant Director/Project Officer, the petitioners were working in the cadre of Lecturer, SISE, Guwahati. The provisional gradation list of Readers/Assistant Directors/Project Officers/Controller of Examination was published by the respondent No. 1 vide the Notification dated 6.5.2013 after taking into consideration the objections raised by some employees. The impugned gradation list was published on 6.5.2013 when no objection was received within 31.5.2013. The petitioners have never challenged the gradation list published on 6.5.2013. The respondent No. 3 has completed more than 23 years of continuous service as Assistant Director and the respondent No. 4 and 5 have completed more than 20 years of continuous services as Assistant Director and Project Officer without any blemish record, whereas the petitioners have completed only 10 years of continuous service in the cadre of Lecturer. According to the answering respondents, under Rule 21 of the Assam SCERT Service Rules, 2005, seniority of a member in a cadre is required to be determined according to order of preference in the respective list finally approved by the appointing authority. It is also submitted by the answering respondents that the cadre of Assistant Director, Project Officer and Readers are separate cadre as per Rule 3 of the Rules and the strength of the cadre of the service is appended to Schedule II of the Rules. These are the sum and substance of the case of the private respondents. 7. On perusing the pleadings of the parties, there is no dispute that the posts of Reader, SCERT, Assistant Director SCERT, Project Officer, SCERT, Controller of Examination, SCERT and Programme-cum-Script Writer, SCERT are having a common gradation list as can be seen from Annexure-4 to the writ petition. Though a feeble attempt is made by the private respondents to deny this in their affidavit-in-opposition, this position is admitted by the State-respondents. Though a feeble attempt is made by the private respondents to deny this in their affidavit-in-opposition, this position is admitted by the State-respondents. Secondly, all the aforesaid posts also form the feeder post for promotion to the next higher post of Deputy Director, which is the bone of contention of the parties herein. It may further be noted that in addition to the posts of Deputy Director, the posts of Vice-Principal and Officer-in-Charge, SCERT also constitute the promotional posts for the posts of Rader, Assistant Director, SCERT, etc. That is precisely the reason a common gradation list is prepared for these posts contrary to the assertion made by the private respondents. 8. The first point for determination is whether the private respondent No. 3, 4 and 5 whose services were regularised in the posts of Assistant Director/Project Officer with effect from their initial date of ad-hoc/officiating appointments i.e. 6.1.1990, 15.9.1993 and 16.12.1993 respectively can claim seniority over the petitioners who were regularly promoted together in the post of Reader on 27.3.2002 on the recommendation of APSC? Ms. D. Borgohain, the learned counsel for the petitioners, contends that the private respondents, who were initially appointed on ad-hoc basis and whose services were regularized without the recommendation of APSC, cannot steal a march over the petitioners, who were regularly promoted on the recommendation of the APSC and in accordance with rules. In support of his contention, he places strong reliance upon the following decisions:-Amarjeet Singh & Ors. vs. Devi Ratan & Ors., AIR 2010 SC 3676 ; PPC Rawani (Dr.) & Ors. vs. UOI & Ors, (2008) 15 SCC 332 and State of WB & Ors. vs. Aghore Nath Dey & Ors., (1993) 3 SCC 371 . Per contra, Mr. J. Abedin, the learned standing counsel for the Education, supports the impugned action of the respondent authorities and submits that no interference is called. While endorsing the submissions of the learned standing counsel, Mr. JC Chutia, the learned counsel for the private respondents, submits that the writ petition suffers from inordinate delay inasmuch as there is an unexplained delay of almost 10 years in challenging the Cabinet Memorandum and impugned gradation list, which alone is sufficient to dismiss the writ petition. 9. While endorsing the submissions of the learned standing counsel, Mr. JC Chutia, the learned counsel for the private respondents, submits that the writ petition suffers from inordinate delay inasmuch as there is an unexplained delay of almost 10 years in challenging the Cabinet Memorandum and impugned gradation list, which alone is sufficient to dismiss the writ petition. 9. It is by now a well-settled proposition of law that the seniority of an employee in a cadre is to be determined in accordance with the rules if such rules provide for the same. Otherwise, the seniority could be determined in accordance with the principles enunciated by the Apex Court in Direct Recruit Class II Engineering Officers' Assn. vs. State of Maharashtra, (1990) 2 SCC 715 . To appreciate the controversy, I may have to go back to conclusion (A) and conclusion (B) of Direct Recruit case (supra), which are as under: (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 stopgap arrangement, the officiation in such posts cannot be taken into account for considering seniority. (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. Under what circumstances conclusion (A) and conclusion (B) can be applied have been explained by the Apex Court in the subsequent case of State of WB vs. Aghore Nath Dey, (1993) 3 SCC 371 in the Mowing manner "There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed 'according to rules'. We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed 'according to rules'. The corollary set out in conclusion (A), then is, that 'where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority'. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within the corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting of seniority. 23. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other. 24. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A). 25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the 'rules' and the latter expression 'till regularization of his service in accordance with the rules'. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the 'rules' and the latter expression 'till regularization of his service in accordance with the rules'. We read conclusion (B), and must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularization, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularization of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment is not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period for which he is not to blame. This category of cases is different from those covered by the corollary to conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A)." 10. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A)." 10. In that case, the writ petitioners, the common issue for decision related to fixation of seniority of certain Sub-Assistant Engineers appointed on ad hoc temporary basis Assistant Engineers for a specified period in the PW D and the Irrigation and Waterways Department of the Government of West Bengal vis-a-vis the direct recruits in the cadre of Assistant Engineers appointed regularly according to rules in these departments prior to the regularization of the ad hoc appointees. The question was raised by the ad hoc appointees who were regularized subsequently, by filing writ petitions in the Calcutta High court claiming revision of their seniority, reckoned from the date of their initial ad hoc appointments. These writ petitions were dismissed by a single bench of the High Court but the writ appeals were allowed by the division bench, resulting in grant of the relief claimed by the ad hoc appointees. The appeals preferred by the State against the judgment of the division bench were allowed by the Apex Court in the following manner: "26. In view of the above, it is clear that the claim of the writ petitioners (respondents in all these appeals) for treating their entire period of service prior to February 26, 1980 as regular service for the purpose of seniority, and fixation of their seniority accordingly, is untenable. The submission of Shri Sanghi that their initial ad hoc appointment must be treated as having been made in accordance with the rules since the selection by the alternative mode, namely, by a committee of five Chief Engineers was resorted to on account of the emergency, cannot be accepted. Rule 11 of the 1959 Rules provides for appointments to be made during emergency, and lays down that such appointments during emergency can be made only 'by advertisement and interview, through the Public Service Commission, West Bengal'. Admittedly, this express requirement in Rule 11 was not followed or fulfilled subsequently, and, therefore, the initial appointments cannot be treated to have been made according to applicable rules. These ad hoc appointments were clearly not in accordance with rules, and were made only as a stopgap arrangement for a fixed period, as expressly stated in the appointment order itself. 27. These ad hoc appointments were clearly not in accordance with rules, and were made only as a stopgap arrangement for a fixed period, as expressly stated in the appointment order itself. 27. Thus, there is no escape from the conclusion that the present cases fall squarely within the ambit of the corollary in conclusion (A), of Maharashtra Engineers case and, therefore, the period of ad hoc service of writ petitioners (respondents) on the post of Assistant Engineer prior to February 26, 1980, cannot be counted for reckoning their seniority." 11. In the case at hand also, the private respondents were admittedly ad hoc appointees, who were appointed under Regulation 3(f) of APSC (Limitation of Function) Regulation, 1951, by resorting to Clause 22 of the Assam Rules of Executive Business by the State Cabinet. According to the State Cabinet, as adumbrated in the Cabinet Memorandum at Annexure-12 to the writ petition, the private respondents had been rendering their services for more than 6 to 11 years from the date of their appointments and the APSC had sought clarifications/revision/modifications of the advertisement from time to time and were ultimately asked to withdraw the advertisement, which they did. It, therefore, becomes obvious that the private respondents were not appointed according to the rules but were made only as a stopgap arrangement for a fixed period of 4 (four) months under Regulation 3(f) of the APSC (Limitation of Function) Regulation, 1951, as expressly stated in their appointment orders. In my opinion, their cases are covered by the corollary to conclusion (A) of the Maharashtra Engineers case (supra) and, therefore, the period of their ad hoc service from their initial dates of appointment to the date of their regularization cannot be counted for the purpose of seniority vis-a-vis the petitioners. After all, the petitioners were promoted to the post of Readers, SCERT, Assam on the recommendation of the APSC with effect from 27.3.2002. To borrow from Justice Raveendran, if these ad hoc appointees like the private respondents were to be regularized with effect from the date of their initial appointment, with seniority also from the date of initial appointment, there will be no difference between regular recruitment and regularization of ad hoc appointments, thereby defeating the very purpose of systematic regular recruitment through APSC. Ad hoc or stopgap appointees were not normally regularised and given seniority from the date of initial appointment. Ad hoc or stopgap appointees were not normally regularised and given seniority from the date of initial appointment. The law is now equally settled that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime. 12. It is next contended by Mr. J. Chutiya, the learned counsel for the private respondents that the challenge to the impugned gradation list made after 10 years or so of the publication hereof is itself a ground for dismissal of the writ petition. In my opinion, this contention has no force inasmuch as no benefits have been derived by the private respondents till now vis-a-vis the petitioners following their retrospective regularization or by virtue of the gradation lists prepared heretofore. Therefore, this is not a case where any of the private respondents can be said to be in a settled position by virtue of their retrospective regularization or by the impugned gradation list. A case of somewhat similar nature had come up for consideration before the Apex Court in Kuldip Chand vs. Union of India, (1995) 5 SCC 680 wherein it was held: "The question, therefore, for our consideration is: who is the senior in the post of clerk? Admittedly, post of clerk is a feeder post for promotion as an accountant. It is not in dispute that the posts of octroi moharrir and the clerk were fused and re-designated as clerks. In that view, it must be deemed that Ashok Kumar has been working as a clerk since inception, viz., 29.11.1976. The appellant admittedly was appointed as a clerk on 5.2.1979. The post of storekeeper though it was a specialised post, the appellant had not been promoted to that post in his own right. When that post was vacant, the appellant came to be posted by way of fortuitous circumstances and continued to work in that post, which was otherwise than in his own right. It would not a ground to claim seniority over Ashok Kumar who admittedly was a clerk from 29.11.1976. The High court, therefore, was right in its conclusion that the fortuitous circumstance of the appellant working as a storekeeper in the pay scale of Rs. It would not a ground to claim seniority over Ashok Kumar who admittedly was a clerk from 29.11.1976. The High court, therefore, was right in its conclusion that the fortuitous circumstance of the appellant working as a storekeeper in the pay scale of Rs. 510-800 cannot permit the appellant to have a march over the fourth respondent. 4. It is next contended by Mr. M.M. Kashyap, learned counsel for the appellant, that Ashok Kumar disputed the correctness of the seniority list made on 23.12.1982 in his representations dated 10.1.1983 and 1.8.1983 which were duly considered and rejected. He allowed it to become final as he did not challenge the same till post of accountant became vacant. When it was rejected, he filed the writ petition in the High Court (in 1991). There is considerable delay in claiming his seniority over the appellant. It is true that the seniority list was prepared as early as on 23.12.1982 but no vacancy had arisen thereafter and, therefore, the mere rejection of the claim for seniority does not disentitle him to claim his seniority over the appellant for consideration by the respondent-Union. 5. When the aforesaid facts are taken into consideration, it would be obvious that the preparation of seniority list per se was illegal. Therefore, the mere fact that he did not challenge the seniority list, which was illegally prepared, till he was aggrieved by non-consideration of the claim to the post of accountant, his legitimate right to be considered cannot be denied. Under these circumstances, the delay is of no consequence for considering the claims of Ashok Kumar for the post of accountant. 6. The appeal is dismissed. No costs." 13. The objection raised by the private respondents against the maintainability of the writ petition is completely answered the paragraphs extracted in the foregoing. At this stage, it may be noted that the petitioner No. 2 is also claiming the quota reserved for Scheduled Caste community as per roster. In my judgment, without claiming this quota also, in my opinion, she has made out a case for claiming seniority over the private respondents whose retrospective regularization cannot, as held by me earlier, affect her seniority as she promoted to the post of Reader in 2002 earlier than the private respondents. The upshot of the foregoing discussion is that this writ petition stands allowed. The upshot of the foregoing discussion is that this writ petition stands allowed. It is hereby declared that the impugned Cabinet Memorandum dated 26.2.2003 regularizing the services of the respondent No. 3, 4 and 5 w.e.f., 6.1.1990, 15.9.1993 and 15.12.1993 respectively shall not affect the seniority of the petitioners over them. Consequently, the impugned gradation list placing the respondent No. 3, 4 and 5 above the petitioners is quashed. The respondent authorities are, accordingly, directed to prepare a fresh gradation list by placing the petitioners above the respondent No. 3, 4 and 5 and thereafter consider them for promotion to the next higher post of Deputy Director, SCERT in accordance with law as and when the DPC is due and convened. No cost. Petition allowed.