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2015 DIGILAW 210 (GAU)

Bijoy Sarma v. State of Assam

2015-02-23

UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. 1. This order will dispose of WP(C) Nos. 1536/2009 and WP(C) No. 5037/2010. Both the writ petitions were heard together as the subject matter is identical. 2. In WP(C) No. 1536/2009 Sri Bijoy Sarma and Sri Dilip Kr. Nath are the petitioners whereas Sri Intaz Ali Ahmed and Sri Aniruddha Nag are the petitioners in WP(C) No. 5037/2010. 3. Matter relates to seniority in the rank of Assistant Engineer (Civil) in the Public Works Department (PWD). Petitioners are basically aggrieved by the second Cabinet decision whereby their seniority in service in the rank of Assistant Engineer (Civil) has been reckoned from the date of their regularization i.e., with effect from 24.12.1998. 4. The facts of the case may be briefly narrated. 5. According to the petitioners, following a selection process, they were appointed as Assistant Engineer (Civil) in the PWD under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 in February, 1994. About 62 persons were so appointed as Assistant Engineer (Civil) in the PWD under Regulations 3(f). Though the petitioners were initially appointed for a period of 4 months, the temporary appointments of the petitioners were extended from time to time. 6. Assam Public Service Commission (APSC) issued an advertisement in the year 1995 for recruitment to 42 vacancies in the post of Assistant Engineer (Civil) in the PWD. Petitioners alongwith the other 3(f) appointees appeared in the selection process. In the selection process 42 candidates were selected and recommended by the APSC which included 14 who were earlier appointed under Regulation 3(f). However, the names of the petitioners were not included in the list of successful candidates of the APSC. 7. Petitioners claim that despite their non-selection by APSC, because of the valuable experience gathered by them, their services were not terminated and they were allowed to continue their service. As a matter of fact, names of the petitioners were recommended by the APSC for future vacancies. 8. As proposed in the form of Cabinet memorandum, the Cabinet in its meeting dated 24.12.1998 regularized the services of persons including the petitioners who were working in the PWD under Regulation 3(f) with effect from the dates of their initial appointment. Govt. As a matter of fact, names of the petitioners were recommended by the APSC for future vacancies. 8. As proposed in the form of Cabinet memorandum, the Cabinet in its meeting dated 24.12.1998 regularized the services of persons including the petitioners who were working in the PWD under Regulation 3(f) with effect from the dates of their initial appointment. Govt. of Assam in the PWD thereafter, issued notifications dated 06.01.1999 regularizing the appointment of the petitioners and few others who were appointed under Regulation 3(f) with effect from the dates of their joining in PWD i.e., from February, 1994. It was stated that the regularization was made in relaxation of Rule 6 of the Assam Engineering (PWD) Service Rules, 1978 and also invoking Rule 28 of the said Rules as a very special case. 9. Later on, the petitioners came to know that gradation list of the incumbents in the cadre of Assistant Engineer (Civil) in the PWD was published vide notification dated 14.10.2004. As per the said notification, seniority position of the petitioners was reckoned from the date of regularization i.e., with effect from 24.12.1998 and not from the date of initial joining under Regulation 3(f) i.e., February 1994. 10. This led to filing of WP(C) No. 4618/2006 before this Court by the petitioners and others. The writ petition was disposed of by this Court by giving liberty to the petitioners to approach the Service Tribunal since it was held that the subject matter of the writ petition was within the jurisdiction of the Service Tribunal. 11. A gradation list in the cadre of Assistant Engineer (Civil) was again published on 15.05.2007 wherein petitioners were placed way down in the list of seniority by reckoning their seniority with effect from the date of regularization and not from the date of initial appointment. Representations submitted by the petitioners for counting their seniority with effect from the date of initial appointment and consequential re-arrangement of their seniority position was rejected by Department vide order dated 13.07.2007. It was stated that as per the initial Cabinet decision dated 24.12.1998, regularization of the services of the petitioners were made with effect from the date of joining PWD vide notification dated 06.01.1999. It was stated that as per the initial Cabinet decision dated 24.12.1998, regularization of the services of the petitioners were made with effect from the date of joining PWD vide notification dated 06.01.1999. The Cabinet in its subsequent meeting held on 19.02.2002 revised the earlier decision and it was decided that regularization would be with effect from 24.12.1998 i.e., from the date of regularization vide first Cabinet decision. 12. As per the liberty granted by this Court, petitioners had filed an appeal before the Assam Administrative Tribunal, Guwahati (Tribunal) in Case No. 51 ATA/2007. The Tribunal vide the judgment and order dated 16.12.2008 dismissed the appeal. 13. The Government thereafter published a gradation list of Assistant Engineer (Civil) in the PWD dated 16.03.2009 wherein the petitioners have been assigned their seniority positions by treating their dates of joining PWD as 24.12.1998 i.e., date of regularization. Aggrieved, the two writ petitions have been filed. 14. Contention of the petitioners is that their services under Regulation 3(f) were never discontinued. As such, their seniority is required to be reckoned from the dates of their initial appointment under Regulation 3(f). The Regulation 3(f) appointments were preceded by a selection. Service of the petitioners have been regularized w.e.f. February, 1994 i.e., from the date of Regulation 3(f) appointments. Therefore it is not open to the respondents to assign seniority to the petitioners by reckoning any other date of entry into the cadre of Assistant Engineer (Civil). 15. Identical affidavits have been filed on behalf of PWD in born the cases. Stand taken in the affidavits is that petitioners were initially appointed under Regulation 3(f) on purely temporary basis. The services of 43 ad-hoc Assistant Engineers (Civil) appointed under Regulation 3(f) were first regularized on the approval of the Cabinet decision dated 24.12.1998 giving effect to such regularization from their initial dates of joining in PWD. Later on it was found that between joining of the petitioners in service under Regulation 3(f) and the Cabinet decision on 24.12.1998, a number of regular appointments were made of candidates who were selected by the APSC. 16. The matter was therefore again placed before the Cabinet in its meeting held on 19.02.2002. This time, Cabinet decided that regularization of services would be effective from the date of regularization i.e., 24.12.1998. 16. The matter was therefore again placed before the Cabinet in its meeting held on 19.02.2002. This time, Cabinet decided that regularization of services would be effective from the date of regularization i.e., 24.12.1998. Accordingly, the said decision of the Cabinet was acted upon by the PWD and consequently seniority positions of the petitioners were assigned reckoning their seniority w.e.f. from 24.12.1998. The seniority position assigned in the gradation list is as per the Cabinet decision. It is contended that the subsequent decision of the Cabinet dated 19.02.2002 is correct and no interference is called for. 17. Some of the private respondents who were appointed following a selection by the APSC and consequently placed above the petitioners in the gradation list have also filed affidavits disputing the stand taken by the petitioners. 18. Heard Mr. MA Sheikh, learned counsel for the petitioners in WP(C) No. 5037/2010 and Mr. G Sarma, learned counsel for the petitioners in WP(C) No. 1536/2009. Also heard Mr. YS Mannan and Mr. RM Deka, learned counsel for the PWD. Mr. MK Choudhury, learned senior counsel assisted by Mr. N Baruah as well as Mr. Sheikh Muktar, learned counsel for some of the private respondents have also been heard. 19. Learned counsel for the petitioners have strenuously argued that the subsequent Cabinet decision amounted to review of the initial Cabinet decision which adversely affected the rights of the petitioners. Initial decision of the Cabinet to regularize the service of the petitioners with effect from the date of their initial appointment under Regulation 3(f) cannot be faulted inasmuch as the petitioners were so appointed following a limited selection process. They had rendered service continuously since their initial appointments without any break. Therefore, petitioners cannot be denied the benefit of the services rendered by them since their initial appointments under Regulation 3(f). Accordingly, their seniority positions should be re-assigned by reckoning their entry into the cadre from February, 1994. Learned counsel for the petitioners have placed reliance on the following decisions in support of their contentions:-- "1. (1984) 4 SCC 329 GP Doval & Ors. v. Chief Secretary, Government of U.P. & Ors. 2. (2008) 10 SCC 271 B.S. Mathur v. Union of India 3. (2010) 6 SCC 791 S. Sumnyan v. Limi Niri 4. 2012 (4) GUT 690 R.T. Asang Jamir @ R. Tsudensangba Jamir & Ors v. State of Nagaland & Ors." 20. (1984) 4 SCC 329 GP Doval & Ors. v. Chief Secretary, Government of U.P. & Ors. 2. (2008) 10 SCC 271 B.S. Mathur v. Union of India 3. (2010) 6 SCC 791 S. Sumnyan v. Limi Niri 4. 2012 (4) GUT 690 R.T. Asang Jamir @ R. Tsudensangba Jamir & Ors v. State of Nagaland & Ors." 20. On the other hand, learned Standing counsel, PWD have supported the Government decision to count the seniority of the petitioners with effect from the date of regularization and not from the date of their initial appointment under Regulation 3(f). Mr. Mannan has also produced the record for perusal of the Court. 21. Mr. MK Choudhury, learned senior counsel for the private respondents referring to the decision in the State of West Bengal & Ors v. Aghore Nath Dey & Ors. reported in (1993) 3 SCC 371 submits that when special Recruitment Rules were available, recruitment made on temporary basis by taking resort to the Assam Public Services (Limitation of Functions) Regulations, 1951 was not justified, more particularly, when the mode of recruitment is clearly prescribed in the Recruitment Rules. There is no question of relaxation of the basic requirement of the Recruitment Rules, such as, qualification and the mode of recruitment Regularization of service is certainly not a mode of recruitment recognized by the Recruitment Rules. Notwithstanding that, since no challenge was made to the regularization of the service of the petitioners, it would be too late in the day to challenge the regularizations now thereby unsettling settled positions. However, he submits that petitioners can get the benefit of their regularization only prospectively and not retrospectively. In this connection, learned senior counsel places reliance on the decision of the Apex Court rendered in the case of Direct Recruit Class-II Engineering Officers Association v. State of Maharashtra reported in 1990 (2) SCC 715 to contend that where the initial appointment is only ad-hoc and not according to the Rules i.e., Recruitment Rules, the rendition of service for such period cannot be taken into account for considering the seniority. Therefore, the subsequent decision of the Cabinet followed by the PWD cannot be faulted. No case for interference is made out Therefore the writ petitions should be dismissed. 22. Submissions made have been considered. Also perused the record produced by the learned Standing counsel, PWD. 23. Therefore, the subsequent decision of the Cabinet followed by the PWD cannot be faulted. No case for interference is made out Therefore the writ petitions should be dismissed. 22. Submissions made have been considered. Also perused the record produced by the learned Standing counsel, PWD. 23. Before proceeding further, it would be apposite to refer to the decision of the Tribunal which had rejected the claim of the petitioners. As already noticed above, petitioners had earlier moved this Court challenging the decision of the Government This Court, however, took the view that the subject matter of the writ petition lies within the jurisdiction of the Tribunal and accordingly gave liberty to the petitioners to approach the Tribunal. On approach being made, the Tribunal dismissed the appeal filed by the petitioners vide the order dated 16.12.2008. Relevant portion of the order of the Tribunal dated 16.12.2008 reads as under: "We have considered the submissions advanced and have also carefully perused the pleadings and records made available before us. It is not in dispute that the initial appointment of the appellants, although made in pursuance of selection, was not so made in accordance with the provisions of Rule 6 of the Rules of 1978. The appointment orders issued in respect of the appellants clearly specify the same to be an adhoc appointment pending regular selection by the APSC. The said appointment orders also require the appellants to appear in the recruitment to be held by APSC for continuance in service. The appellants admittedly appeared in the recruitment held by APSC but could not come within the required merit position warranting their appointment on regular basis in the cadre of Assistant Engineer (Civil). It was under these circumstances as revealed from the notes available in File No. RBEB. 220/94, that the case of the appellants was processed for regularization of their services by relaxing the provisions of the Rules holding the field. The Cabinet in this meeting held on 24.12.98 approved the proposal for regularization of the services of the appellants w.e.f. the date of their initial appointment. It is in this context that the Order dated 06.01.99 (Annex-ure-4 Series to the Appeal memo) came to be issued. The Cabinet in this meeting held on 24.12.98 approved the proposal for regularization of the services of the appellants w.e.f. the date of their initial appointment. It is in this context that the Order dated 06.01.99 (Annex-ure-4 Series to the Appeal memo) came to be issued. The records as produced also reveals that when the question arose for fixation of the inter-se seniority between the appellants and the members of the cadre of Assistant Engineers (Civil) who were recruited in pursuance to then-selection by the APSC, the matter was processed and noticing the anomaly existing in the matter a decision was desired to be taken in the matter. Accordingly, the matter was processed in file No. RBEB.53/97/PL The matter on being placed before the Personnel Department for its views, the following opinion came to be rendered. "P.W. (ESTT) DEPTT - U/O. It appears that action of your Deptt. to regularize the 3(f) appointees with effect from the date of appointment is wrong - moreso when mere was a APSC nominated regular batch in between the date of Cabinet decision and First appointment under Reg. 3(f): In the Cabinet memorandum, the views of Personnel (B) Deptt. have been quoted in part only. This was highly irregular and uncalled for. This deptt. never advised you to regularize with effect from the date of appointment, at the cost of APSC recommended candidates. Hence you are advised to take steps to rescind the earlier Cabinet decision and may also get the approval of this Department in the draft Cabinet Memorandum." Thereafter, a fresh Cabinet memorandum indicating the discrepancy existing in the earlier Cabinet memorandum, incorporating the views expressed in the matter by the concerned authorities/departments came to be prepared by the Public Works Department. The relevant portion of the Cabinet memorandum as prepared is quoted herein below "As per advise of the Personnel (B) Department the matter is placed before the Cabinet for review of its earlier decision dated 24.12.98 and to consider to approve the regularization of the 43 adhoc Assistant Engineer (Civil) in the service w.e.f. 24.12.98 i.e., the date on which Cabinet had approved the proposal of the Department for weir regularization in the service instead of w.e.f. the date of their joining in P.W. Department on adhoc basis." The Cabinet on consideration of the matter was pleased to approve the said proposal in its meeting held on 19.02.02 and accordingly steps were initiated for publication of the seniority list for the cadre of Assistant Engineer (Civil). In terms of the decision as arrived at in the matter the seniority list dated 14.1Q.04 came to be published and therein the seniority of the appellants was reckoned from 24.12.98 onwards. We would now examine as to whether the appellants, as contended by them, were required to be assigned seniority positions by reckoning the adhoc services rendered by them. It is an admitted position that the initial appointment and/or the subsequent regularization of their services were not made in accordance with the Rules. For better appreciation of the matter we would like to extract the conclusions (A) and (B) of the Apex Court in Direct Recruit Class-II Engineering Officers Association (Supra). (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. (B) If the initial appointment is not made by following the procedure laid down by the rules but me 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. (B) If the initial appointment is not made by following the procedure laid down by the rules but me 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 Apex Court on being applied to the facts of the present matter leads to only one conclusion that the appellants cannot have the services rendered by them under Regulation 3(f) reckoned for the purpose of assigning to them seniority in the cadre of Assistant Engineer (Civil). We further draw support for the conclusions reached by us in the present proceeding from the ratio of the Judgment of the Apex Court in the case of State of West Bengal & Ors (supra). Accordingly, we are of the considered view that the appellants period of Ad-hoc service rendered by the appellants under Regulation 3(f) cannot be reckoned for the purpose of assigning to them their seniority in the cadre of Assistant Engineer (Civil). This now brings us to a consideration of the contentions raised by Mr. Ali that the decision arrived at in the Cabinet meeting held on 19.02.02 to modify its earlier decision on the same matter arrived at in its meeting held on 24.12.98 without affording an opportunity of hearing to the appellants and also after long lapse of time, vitiates the second decision of the Cabinet. We have already reached a conclusion that the regularization of the services of the appellants w.e.f. the date of their initial appointment on adhoc basis and assignment to them of seniority positions in the cadre of Assistant Engineer (Civil) by reckoning their such adhoc service is not sustainable and the same is in clear violation of the provision of the Rules and the decision rendered in the matter and noted herein above by the Apex Court. The decision as arrived at by the Cabinet and reflected in the regularization order issued to the appellants on 06.01.99 are not sustainable. Accordingly, any interference with the second Cabinet decision dated 19.02.02 and the follow up steps taken in pursuance thereto would have the effect of reviving an illegal order which is not permissible. The decision as arrived at by the Cabinet and reflected in the regularization order issued to the appellants on 06.01.99 are not sustainable. Accordingly, any interference with the second Cabinet decision dated 19.02.02 and the follow up steps taken in pursuance thereto would have the effect of reviving an illegal order which is not permissible. Further, the alteration with regard to the effective date of regularization of their services does not cause any prejudice to the appellants inasmuch as in the event had the department taken a strict view of the matter the appellants would have been terminated from their services on their failure to qualify in the selection held by the APSC. We accordingly, reject the arguments advanced in this connection by Mr. Ali on behalf of the appellants. In view of the above we are on the considered opinion that the seniority positions assigned to the appellants and the private respondents in the seniority list dated 15.05.07 requires no interference and we uphold the decision communicated by the authorities vide communication dated 13.07.07 (Annexure-10 to the appeal memo)." 24. From a careful perusal of the aforesaid order of the Tribunal, it is quite evident that the Tribunal had gone into all the aspects of the matter. The view taken by the Tribunal is the correct view and this Court is not inclined to interfere with the decision of the Tribunal. 25. It is evident from the case projected by the petitioners themselves that they continued under Regulation 3(f), even when they were not selected by the APSC against the 42 advertised posts. In other words, they had failed to qualify in the selection conducted by the APSC which was one of the conditions of their Regulation 3(f) appointments. Petitioners were lucky that the State Government took a very lenient view and despite their non-selection by the APSC they were allowed to continue in their temporary service. Not only that, the Cabinet on24.12.1998 decided to regularize their service with effect from the date of initial appointment under Regulation 3(f). 26. It goes without saying that as a general proposition, regularization is ordinarily prospective and not retrospective. 27. Having realized the mistake, the Cabinet in its subsequent meeting held on 19.02.2002 modified the regularization decision by making it effective from the date of the Cabinet decision i.e., w.e.f. 24.12.1998. 26. It goes without saying that as a general proposition, regularization is ordinarily prospective and not retrospective. 27. Having realized the mistake, the Cabinet in its subsequent meeting held on 19.02.2002 modified the regularization decision by making it effective from the date of the Cabinet decision i.e., w.e.f. 24.12.1998. Therefore, the seniority of the petitioners have been reckoned from 24.12.2998 and accordingly, their seniority positions have been assigned. 28. In the case of Mashud Ali Akhtar v. Madhya Pradesh (1990) 4 SCC 24 which has been relied upon by this Court in 2013 (2) GLT 907 Kishor Kr. Das v. State of Assam, the Apex Court has held that if the initial appointment is not made according to the Rules, subsequent regularization of service would not entitle an employee to the benefit of intervening service for seniority. Rules in this case would mean the Recruitment Rules which is the Assam Engineering (PWD) Service Rules, 1978 and not any other Rule providing for temporary or stop-gap appointment such as the APSC (Limitation of Functions) Regulations, 1951. This position was further clarified by the Apex Court in the decision in Direct Recruit Class-H Engineering Officers Association (supra) where two conclusions were laid down which have already been discussed in the decision of the Tribunal. The two conclusions are extracted here under for ready reference:-- "(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 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 continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted." In Aghore Nath Dey (supra), the Apex Court explained the two conclusions in the following manner- "22. 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). 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'. 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 this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority." In the understanding of the Court, case of the petitioners would be covered by the corollary to conclusion A of the said decision which says that where the initial appointment is only ad-hoc and not according to the Rules and made as a stop-gap arrangement, officiation in such post cannot be taken into account for considering seniority. 29. The citations relied upon by the learned counsel for the petitioners are on entirely different factual matrix. There is no dispute to the proposition that in the absence of any specific rule of seniority governing the cadre or service, it is well settled that length of continuous officiation will provide a fair rule of seniority but that is not the case here. The Assam Engineering (PWD) Service Rules, 1978 governs the conditions of service of members belonging to the Assam Engineering (PWD) service which includes the cadre of Assistant Engineer. Under Rule 5, method of recruitment is either by direct recruitment or by promotion. Procedure for direct recruitment to different cadres such as Assistant Engineer is laid down in Rule 6. Promotion to Assistant Engineer is laid down in Rule 11 and the general procedure for promotion is laid down in Rules 13 and 14. 30. Rule 22 deals with seniority. Procedure for direct recruitment to different cadres such as Assistant Engineer is laid down in Rule 6. Promotion to Assistant Engineer is laid down in Rule 11 and the general procedure for promotion is laid down in Rules 13 and 14. 30. Rule 22 deals with seniority. It provides that seniority of a member in a cadre appointed by direct recruitment or by promotion shall be determined according to the order of merit in the respective list finally approved by the appointing authority. Between direct recruitment and a promote, the latter shall be considered senior. 31. That being the scheme of the Assam Engineering (PWD) Service Rules, 1978 which clearly lays down how recruitment is to be made and how seniority is to be determined, reliance placed by the learned counsel for the petitioners on the judgments cited above are clearly misplaced and those decisions are not applicable to the facts of the present case. Thus, when the Assam Engineering (PWD) Service Rules, 1978 were in force, temporary appointments made under the APSC (Limitation of Functions) Regulations, 1951, when such temporary appointments were conditional upon regular recruitment through the Recruitment Rules of 1978 in which the petitioners were not successful, would not confer seniority. The period of temporary service rendered under the 1951 Regulations therefore cannot be counted towards seniority. 32. Accordingly and in view of the above, this Court finds no merit in the writ petitions which are dismissed. No costs. Record produced by learned Standing counsel, PWD is returned back. Petition Dismissed.