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2017 DIGILAW 1266 (GAU)

Lallawmawma v. Joseph Lalthakima

2017-09-08

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. Joseph L. Renthlei, counsel for the petitioner. Also heard Mrs. Linda L. Fambawl, counsel for the State respondents, Mr. J.C. Lalnunsanga for the respondent No. 5 and Mr. C. Lalfakzuala for the respondent Nos. 6 to 28. The petitioner's case in brief is that the petitioner Nos. 1 and 2 were appointed as Assistant Divisional Accountants (ADA) on contract basis on 20.10.2009 and 16.10.09. The private respondent Nos. 6 to 28 on the other hand, were directly recruited as ADA between the year 2012 and 17.03.2015. 2. The services of the petitioners on contract basis were regularized by the State respondents under the "Government of Mizoram Regularization of Contract Employees Scheme, 2008", (herein after referred to as the 2008 Scheme) w.e.f. 28.05.2015 vide Office Order No. 13 of 2015 - 2016 dated 03.06.2015. 3. The petitioners are aggrieved by the final inter-se-seniority list dated 28.03.2017 wherein the petitioners are placed at Serial No. 45 and 47, while the private respondents are placed from Serial No. 1 to 13 and 35 to 44. The petitioners claim that they should be made senior to the private respondents by counting their past contractual services for the purpose of seniority. 4. The petitioner's counsel submits that the petitioners were appointed after an advertisement was issued and selection process made as per the Mizoram Sub-Ordinate Finance & Accounts Services (Group-B Non-Gazette Post) Recruitment Rules, 2006 (herein after referred to as the 2006 Rules). 5. The petitioner's counsel submits that the past services of the petitioners on contractual basis have been counted for the purpose of leave only. He submits that the past contractual services of the petitioner should also be counted for the purpose of pension and seniority. He also submits that there are numerous decisions of the Apex Court wherein, the past services of the ad-hoc and temporary employees have been counted for the purpose of seniority when the Rules are silent. The petitioner's counsel also submits that the petitioners came into the cadre of ADA when the petitioners were appointed on contract basis as ADA. In this respect he has relied upon the Judgment of the Apex Court in the case of (1) S.B. Patwardhan & Anr. v. State of Maharashtra & Ors., reported in 1977 (3) SCC 399 , (2) Baleshwar Dass & Ors. v. State of U.P. & Ors. In this respect he has relied upon the Judgment of the Apex Court in the case of (1) S.B. Patwardhan & Anr. v. State of Maharashtra & Ors., reported in 1977 (3) SCC 399 , (2) Baleshwar Dass & Ors. v. State of U.P. & Ors. And Arhant Prasad Jain & Ors. v. State of U.P. & Ors., reported in 1980 4 SCC 226 , (3) Direct Recruit Class II Engineering Officers 'Association v. State of Maharashtra & Ors., reported in 1990 2 SCC 715 , (4) Dev Dutta & Ors. v. State of M.P. & Ors. And Devdutta & Ors. v. The Chief Secretary to the Government of M.P. & Ors., reported in 1991 Supple 2 SCC 553, (5) I.K. Sukhija & Ors. v. Union of India & Ors., reported in 1997 6 SCC 406 , (6) State of Rajasthan & Ors. v. Jagdish Narain Chaturvedi, reported in AIR 2010 SC 157 and (7) S. Sumnyan & Ors. v. Limi Niri & Ors., reported in 2010 6 SCC 791 . 6. The petitioner's counsel has also relied upon the Division Bench of this Court passed in WP(C) No. 244/2012, wherein at Paragraph-11, the following observation has been made. "As already noticed, the appellants have also fulfilled the criteria for regularization of their services provided for in the Scheme. Once the appellants have been found to be appointed to the post of Assistant Auditor in accordance with the recruitment rules, they will be entitled to count their past contractual services after regularization of their services. In any view of the matter, except for regular appointees, if there are any, the seniority of the appellants must be counted from the dates of their respective entry into contractual service through DPC. In other words, the past services rendered by them on contract appointment through DPC cannot be wiped out altogether". He thus submits that due to the above reasons, the seniority list dated 28.03.2017 should be set aside and the petitioners should be placed above the private respondents in the matter of seniority. 7. The respondent's counsels on the other hand submit that the private respondents were directly appointed into the cadre of ADA from 2012 to 17.03.2015. Accordingly, the private respondents had been encadred as ADA earlier in point of time than the petitioners, whose encadrement as ADA were affected only on 03.06.2015, i.e. date of regularisation. 7. The respondent's counsels on the other hand submit that the private respondents were directly appointed into the cadre of ADA from 2012 to 17.03.2015. Accordingly, the private respondents had been encadred as ADA earlier in point of time than the petitioners, whose encadrement as ADA were affected only on 03.06.2015, i.e. date of regularisation. They submit that the petitioners were never appointed in a substantive capacity as ADA prior to their dates of regularization. They also submit that there is no challenge to the fixed pay granted to the petitioners and their appointment orders and also to Clause-7 of the 2008 Scheme which states that on regularization, past services rendered as continuous contract employees shall be counted as qualifying services for leave and pensionary benefits only. They submit that as the petitioners have been appointed on the basis of the 2008 Scheme and the petitioners not having challenged Clause-7 of the said scheme, the petitioners cannot blow hot and cold by now claiming that their past services should be counted for the purpose of seniority. 8. In this respect, they have relied upon the judgments of the Apex Court and this Court in the case of Uttaranchal Forest Rangers Association (Direct Recruit) & Ors. v. State of U.P. & Ors., reported in 2006 (10) SCC 346 , (2) Shitla Prasad Shukla v. State of U.P. & Ors., reported in 1986 (Supp) SCC 185 and (3) T. Wati Ao v. State of Nagaland & Ors., reported in 2014 (2) GLT 121 and the Order dated 16.06.2017 passed in WP(C) No. 32/2015. 9. I have heard the learned counsels for the parties. 10. The issue with regard to seniority between direct recruit and contractual employees, whose services have been regularized after the direct recruits have been appointed, lies in a very narrow campus. 11. In the case of State of Rajasthan & Ors. v. Jagdish Narain Chaturvedi (Supra), the Apex Court has held that in order to become a member of the service, the candidate must satisfy four conditions:- (i) the appointment must be in a substantive capacity; (ii) to a post in the service i.e. in a substantive vacancy; (iii) made according to rules; (iv) within the quota prescribed for the source. v. Jagdish Narain Chaturvedi (Supra), the Apex Court has held that in order to become a member of the service, the candidate must satisfy four conditions:- (i) the appointment must be in a substantive capacity; (ii) to a post in the service i.e. in a substantive vacancy; (iii) made according to rules; (iv) within the quota prescribed for the source. In the present case, the petitioners have not been appointed on a regular basis or substantive capacity, but on contract basis and on a fixed pay vide order dated 18.02.2009 & 16.10.2009. The appointment orders also state that the engagement is purely temporary and may be terminated at any time without assigning any reason thereof and will not bestow on the person any claim for regular appointment and would not count for seniority, promotion etc. and for any pensionary benefits whatsoever. The engagement is further subject to an agreement executed with the Department in the prescribed agreement form. The contract employees will be governed by the terms and conditions laid down in the agreement and as contained in the Government of Mizoram Office Memorandum No. G.11021/2/92-PAR(ARW) dt. 7.8.08. This clearly shows that the petitioners were not appointed on a substantive capacity. 12. The Apex Court in the case of Uttaranchal Forest Rangers Association (Direct Recruit) & Ors. v. State of U.P. & Ors., reported in 2006 10 SCC 346 has held at Para-39 as follows:- "39. In Vinodanand Yadav V. State of Bihar on an issue regarding the inter se seniority among the direct recruits and promotes this Court, applying the ratio of State of Bihar V. Akhouri Sachindra Nath, held that the appellants who were direct recruits shall be considered senior over the promotees not borne on the cadre when the direct recruits were appointed in service. Hence the gradation list drawn under which promotees were given seniority over direct recruits could not be sustained and was thereby set aside". 13. In the case of Shitla Prasad Shukla v. State of U.P. & Ors., reported in 1986 (Supp) SCC 185, the Apex Court has held at Para-10 as follows:- "10. An employee must belong to the same stream before he can claim seniority vis-à-vis others. One who belongs to the stream of lawfully and regularly appointed employee does not have to contend with whose who never belonged to that stream, they having been appointed in an irregular manner. An employee must belong to the same stream before he can claim seniority vis-à-vis others. One who belongs to the stream of lawfully and regularly appointed employee does not have to contend with whose who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-à-vis those who have been regularly and properly appointed, till their appointments became regular or are regularized by the appointing authority as a result of which their stream joins the regular stream. At that point of confluence with regular stream, from the point of time they join the stream by virtue of the regularization, they can claim seniority vis-à-vis those who join the same stream later". 14. In the case of T. Wati Ao v. State of Nagaland & Ors. (Supra), this Court has held that one cannot claim seniority from a date anterior to encadrement. The petitioners were not appointed as per Rule as ADA, when they were appointed on contract basis on a fixed pay. They were appointed in an irregular manner and the petitioners came into the regular stream of ADA, only from the date of their regularization. By following the law laid down by the Apex Court in the Uttaranchal Forest Rangers Association (Direct Recruit) & Ors. (Supra) and Shitla Prasad Shukla (Supra), there is no question of the petitioners being senior to the private respondents, who had entered into the regular stream/cadre earlier than the petitioners by way of direct recruitment. 15. In the case of P.D. Aggarwal & Ors. v. State of U.P. & Ors., reported in AIR 1987 SC 1676 , the Apex Court has held at Para-25 as follows:- "25. 15. In the case of P.D. Aggarwal & Ors. v. State of U.P. & Ors., reported in AIR 1987 SC 1676 , the Apex Court has held at Para-25 as follows:- "25. We further hold that so far as the temporary Assistant Engineers who have been appointed substantively to temporary posts and have been working for years together after being duly recruited and selected by the Public Service Commission as required under the service rules have become members of the service but so far as purely ad hoc employees or employees purely officiating basis or employees purely for a temporary period in the cadre of Assistant Engineer in Public Works Department being not members of the service in accordance with the service rules are no entitled to have the benefit of their such adventitious, purely ad hoc and temporary service being not appointment substantively even to a temporary post will not be reckoned for determination of seniority unless and until they become members of the service in accordance with the provisions of service rules. Only those ad hoc appointees whose services have been regularized by the regularization rules framed under proviso to Art. 309 of the Constitution after being duly selected by the Selection Committee and becoming member of the service will be entitled to seniority only from the date of order of appointment after selection in accordance with those regulations as provided in rule 7 of the regulations". 16. In the case of State of Rajasthan & Ors. v. Jagdish Narain Chaturvedi, reported in AIR 2010 SC 157 , the Apex Court has held at Para-18 as follows:- "18. Ad hoc appointment is always to a post but not to the cadre/service and is also not made in accordance with the provisions contained in the recruitment rules for regular appointment". 17. In the case of Punjab State Electricity Board & Ors. v. Jagjiwan Ram & Ors., reported in 2009 3 SCC 661 , the Apex Court has held at Para-10 as follows:- "10. The work -charged employees can claim protection under the Industrial Disputes Act or the rights flowing from any particular statute but they cannot be treated on a par with the employees of regular establishment. They can neither claim regularisation of service as of right nor can they claim pay scales and other financial benefits on a par with regular employees. The work -charged employees can claim protection under the Industrial Disputes Act or the rights flowing from any particular statute but they cannot be treated on a par with the employees of regular establishment. They can neither claim regularisation of service as of right nor can they claim pay scales and other financial benefits on a par with regular employees. If the service of a work-charged employee is regularised under any statute or a scheme framed by the employer, then he becomes member of regular establishment from the date of regularisation. His service in the work-charged establishment cannot be clubbed with service in a regular establishment unless a specific provision to that effect is made either in the relevant statute or the scheme of regularisation. In other words, if the statute or scheme under which service of work-charged employee is ' regularised does not provide for counting of past service, the work-charged employee cannot claim benefit of such service for the purpose of fixation of seniority in the regular cadre, promotion to the higher posts, fixation of pay in the higher scales, grant of increments, etc.". 18. In the present case, the petitioners had been appointed on contract basis and on a fixed pay. The petitioner's service, prior to regularization of the petitioners contractual services cannot be counted as the same is not provided in the Rules or under the scheme under which they had been regularized. As per the Judgments of the Apex Court, seniority prior to regularization cannot be counted for ad hoc employees. The petitioners on the other hand were contract employees and were having a fixed pay. In fact ad hoc employees are better placed than persons employed on contract basis. Contract employees have fixed pay and fixed tenures while ad hoc employees have pay scale. The appointment of the petitioners on contract basis was not made to the cadre of ADA and neither was it made in a substantive capacity. The petitioners having come into the regular cadre of ADA only with effect from 28.05.2015, by way of the regularization Order dated 03.06.2015, i.e. after the private respondents were directly recruited to the post of ADA, there is no infirmity with the respondent authorities placing the petitioners below the private respondents in the seniority list. The petitioners having come into the regular cadre of ADA only with effect from 28.05.2015, by way of the regularization Order dated 03.06.2015, i.e. after the private respondents were directly recruited to the post of ADA, there is no infirmity with the respondent authorities placing the petitioners below the private respondents in the seniority list. Further, the regularization Order dated 03.06.2015 states that: "The past services rendered as continuous contract employees shall be counted as qualifying service for the purpose of leave". The said order has also not been challenged by the petitioners. In view of the law laid down by the Apex Court in the case of Uttaranchal Forest Rangers Association (Direct Recruit) & Ors. (Supra) and Shitla Prasad Shukla (Supra), the petitioners cannot be said to be senior over the direct recruits and their past services prior to their regularization order cannot be counted for the purpose of seniority unless the regularization order allows for the same. It may be also be noted that persons appointed to a post on contract basis are not appointed to a pensionable post unless the contract appointment order says so. It is only from the date of regularization order that the petitioner's services were regularized and became encadred. Thus, the petitioners would be governed by the pension scheme as was applicable at the time of their regularization. 19. In the case of S.B. Patwadan (Supra), cited by the petitioner's counsel, the issue to be decided was with regard to a dispute over seniority between direct recruits and promotees. In the case of Baleshwar Dass & Ors. (Supra) the issue of seniority had to be decided between three groups of Assistant Engineers belonging to the U.P. Service of Engineers - Graduate Engineers directly recruited by the Public Service Commission, Graduate Engineers once appointed in numbers but later absorbed after consultation with the Public Service Commission and Diploma holders later promoted as Assistant Engineers. The Apex Court while interpreting United Provinces Service of Engineers Class-II, the Irrigation Branch Rules 1936, held that while temporary and permanent posts have great relevancy in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes as arbitrary, especially when both temporary and permanent appointees are functionally identified. The decision of the Apex Court in the above two cases is not applicable to the case in hand as the facts situation is different in the present case. Firstly because the petitioners herein were appointed on contract basis and the Apex Court in Baleshwar Dass (Supra) has held that: "If in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights". 20. In Direct Recruit Class II Engineering Officers' Association (Supra), Dev Dutta & Ors. (Supra) and S. Sumnyan & Others (Supra), the Apex Court has held that 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 confirmation. The issue to be decided in Direct Recruit Class II Engineering Officers' Association was with regard to seniority between direct recruits and promotees. However, in the present case, the petitioners having been appointed on contract basis and on a fixed pay, it cannot be said that they were appointed as per rules. Also their continuation in service before regularisation being on contract basis and on a fixed pay, it cannot be said that the petitioners service prior to regularisation is as per rules. Further, the petitioners herein have not been regularised as per the rules, but in pursuance to the 2008 Scheme. Service conditions of contract employees are also governed by their contract agreements. Thus the propositions laid down by the Apex Court in Direct Recruits case is not applicable to the case in hand. In Dev Dutta & Ors. (Supra) the dispute was with regard to seniority dispute between existing sales tax inspectors and Block Level Extension Officers, who after being declared surplus were absorbed as sales tax inspectors. The Apex Court in Dev Dutta & Ors. (Supra) has held that as the absorbed sales tax inspectors were confirmed retrospectively in accordance with rules, hence benefit of service from their date of confirmation could not be denied. However, in the present case, the appointment of the appellants clearly states that they were appointed on contractual basis and the regularization Order dated 03.06.2015 was with effect from 28.5.15. (Supra) has held that as the absorbed sales tax inspectors were confirmed retrospectively in accordance with rules, hence benefit of service from their date of confirmation could not be denied. However, in the present case, the appointment of the appellants clearly states that they were appointed on contractual basis and the regularization Order dated 03.06.2015 was with effect from 28.5.15. Thus, the period prior to 28.5.15 was not regularised and there is no basis for counting the petitioners service on contract basis for the purpose of seniority. 21. With regard to the Division Bench Judgment of this Court passed in W.A. No. 244/2012, the same was with regard to a seniority dispute between two groups of contractual employees with regard to seniority. The Division Bench held that the contractual employees who had been appointed after having been appointed in accordance with the recognised method of recruitment consistent with Article 14 & 16 of the Constitution of India, would be entitled to count their contractual services from their date of appointment on contractual basis, ahead of those contractual employees who were appointed without following the recognised method of recruitment. The above case is not applicable to the case in hand, as the dispute herein is with regard to seniority of contract employees who have been regularised under the 2008 Scheme, after appointments were made vide direct recruitment as per the 2006 Rules. 22. The petitioners herein were appointed on a contract basis. Their regularization was done as per the 2008 Scheme, which does not provide for counting of their past services on contract basis for the purpose of seniority. 23. It is settled law that Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision or which reliance is placed. In the case of Bharat Petroleum Corporation Limited v. N.R. Vairamani, reported in 2004 8 SCC 579 , the Apex Court has held at para 9 & 11 as follows:- "9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. 11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper." 24. The case laws cited by the petitioner's counsel does not support the petitioner's case and is not applicable to the case in hand. The fact situation in the cases cited by the petitioner's counsel are different and as held by the Apex Court in Bharat Petroleum Corporation Limited (Supra), one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. In view of the reasons stated above, this Court does not find any merit in the writ petition and the same is accordingly dismissed.