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2019 DIGILAW 747 (GAU)

Gayatri Saloi v. Gauhati University

2019-06-13

N.KOTISWAR SINGH

body2019
ORDER : N. Kotiswar Singh, J. 1. Heard Mr. P.K. Tiwari, learned senior counsel for the petitioner. Also heard learned Ms. P. Barman, learned Standing Counsel for the respondent Gauhati University. None has appeared for the private respondents despite having been duly served notices. 2. By this petition, filed under Article 226 of the Constitution of India, the petitioner has challenged the promotion of the private respondent Nos. 5 & 6 to the posts of Senior Library Assistant pursuant to the office order dated 27.10.2017, based on the recommendation of his Departmental Promotion Committee dated 9.10.2017 and also for restoring the seniority of the petitioner in the cadre of Library Assistant on the basis of her merit position at the time of final recruitment to the post of Library Assistant and for directing the University to hold a review DPC for promotion to the post Senior Library Assistant. 3. It has been submitted that the petitioner and the private respondents were recruited to the posts of Library Assistant after going through a recruitment process consisting of written test and interview. On the basis of the said recruitment process, the petitioner and the private respondents were given appointments. In the said merit list prepared by the concerned competent Selection Committee, the name of the petitioner is shown at Sl. No. 1 whereas, the names of the respondent Nos. 5 & 6 are placed at Sl. Nos. 2 & 3 respectively, as clearly evident from the report of the Selection Committee Meeting held on 5.3.2012, a copy of which has been annexed as Annexure-1 to this petition. In order words, according to the learned Senior counsel for the petitioner, the petitioner was the most meritorious candidate for appointment to the post of Library Assistant Pursuant to the said selection, the petitioner was duly offered appointment to the post of Library Assistant vide the order dated 2.5.2012, a copy of which has been annexed as Annexure-2 to this petition. In the said offer of appointment, it has been mentioned that the petitioner was to inform her willingness to accept the offer within a period of 15 days from the date of issuance of the letter and when she would be expected to join duties in the office and if the reply is not received within the time of 15 days from the date of issuance of the letter, it would be presumed that the petitioner is not interested in the offer and the offer will be treated as withdrawn. In terms of the aforesaid offer of appointment, the petitioner duly joined her duty on 12.5.2012, which is mentioned in the office order, within the 15 days given by the appointing authorities as mentioned in the offer of appointment. It is the case of the petitioner that the seniority list of the Library Assistant had never been prepared till then. However, since the petitioner was the most meritorious candidate, she was under the impression that while she would be the senior amongst the Library Assistants and as such, when promotion was made from the post of Library Assistant to Senior Assistant, the petitioner was under bona fide impression that by virtue of seniority as well as merit, she would naturally be promoted to the post of Senior Library Assistant. However, to her shock and surprise, it was found that the private respondents, who were junior to the petitioner in the rank of Library Assistant and who apparently did not have better service record, were given promotion to the posts of the Senior Library Assistant by ignoring claim of the petitioner, and as such being aggrieved, has challenged the promotion of the private respondents to the posts of Senior Library Assistant. 4. This petition, however, has been resisted by the University contending that the petitioner is not senior to the private respondents. On a query by this Court as to how the University had treated the petitioner to be junior to the private respondents, it has been submitted by the learned Standing counsel for the University, based on the affidavit-in-opposition filed by the University respondent that the seniority of the Library Assistant had been fixed in terms of Rule-16 of the Gauhati University Employees Service Condition, Conduct and Appeal Rule 1970. As per Rule-16 of the aforesaid Rules, seniority is to be determined in the cadre to which he is appointed with reference to the date from which his service in that class is counted for probation. The said Rule further provides that in case more than one person are appointed by direct recruitment and join on the same date, seniority of an employees in a particular class shall be determined with reference to the seniority position in the immediate lower cadre. 5. It has been contended that in the present case, since the petitioner had joined later than the private respondents, she has been treated as junior to the private respondents. Accordingly, it has been submitted by the learned Standing counsel for the University that the University Authorities were merely following the provisions of Rule-16 for the purpose of determining seniority of the petitioner and the private respondents, i.e. based on the date of joining and since she joined her service as Library Assistant later than the private respondents, she has been treated to be junior to the private respondents. It has further been submitted by the learned Standing counsel for the Gauhati University that promotion to the post of Senior Library Assistant had been made only on the basis of seniority and as the petitioner is junior to the private respondents, she cannot have any grievance. 6. As against this submission advanced by the learned standing counsel, Gauhati University, the learned senior counsel for the petitioner submits that the aforesaid interpretation by the University of Rule-16 is not correct. It has been submitted that Rule-16 has to be read in consonance with the offer of appointment which is based on the merit list. The University itself had made offer to the petitioner giving 15 days' period within which the petitioner had joined the service. In other words, only in the event, the petitioner failed to join service within 15 days' period offered by the University, she would have lost her seniority position which she would get by virtue of the merit position in the selection process. It is, now, well settled in service jurisprudence that if any appointment is made on the basis of merit, the most meritorious person would always carry the advantage of seniority over others, who are less meritorious to him. It is, now, well settled in service jurisprudence that if any appointment is made on the basis of merit, the most meritorious person would always carry the advantage of seniority over others, who are less meritorious to him. As such, if the aforesaid inherent right of seniority by virtue of merit is to be denied, the rules must be specific about it. In the present case, Rule-16 does not specifically deny the said right to seniority which one would get by virtue of the merit position. Rule-16 merely says that the seniority of an employee in a particular class shall be determined in the cadre to which he is appointed with reference to the date from which his service in that class is counted for probation. 7. Learned senior counsel for the petitioner submits that if the aforesaid Rule-16 is to be read in a literal sense, as has been done by the University Authority, it leads to an absurd situation, where a person who is otherwise most meritorious, losses her seniority because she joined duty on a later date. Learned senior counsel for the petitioner submits that the respondent authority had offered 15 days' period to join service which indicates that it may not be possible for all the candidates to join in service on the same day for various reasons including proximity of the place of residence, being in service in some other organization and as such various reasons which may require some time for joining and the petitioner joined in service within the aforesaid 15 days' period. It has been submitted that therefore, if the aforesaid Rule-16 has to be read in a literal sense it leads to certain absurd situation as happened in the present case which should be avoided. As such the aforesaid rule should be read down. The learned senior counsel for the petitioner, in support his contention, has relied on the decision of Hon'ble Supreme Court in Calcutta Gujarati Education Society & Anr. Vs. Calcutta Municipal Corprn. & Ors., reported in 2003 (10) SCC 533 . In Para-35 of the aforesaid case, it has been held as follows: "The rule of "reading down" a provision of law is now well recognized. It is a rule of harmonious construction in a different name. It is resorted to smoothen the crudities or ironing out the creases found in a statute to make it workable. In Para-35 of the aforesaid case, it has been held as follows: "The rule of "reading down" a provision of law is now well recognized. It is a rule of harmonious construction in a different name. It is resorted to smoothen the crudities or ironing out the creases found in a statute to make it workable. In the garb of "reading down", however, it is not open to read words and expressions not found in it and thus venture into a kind of judicial legislation. The rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. It is to be used keeping in view the scheme of the statute and to fulfill its purposes." 8. Having regard to the arguments advanced by the learned counsel for both the contesting parties, and on perusal of the materials on record, this Court is of the view that the aforesaid Rule-16, relied on by the University in denying seniority of the petitioner merely because she joined a few days after the private respondents, cannot be read in the literal sense and must be applied and interpreted in a manner in consonance with the well settled principles in service jurisprudence. The literal interpretation given to Rule-16 leads to an anomalous and absurd situation. In the select list for appointment to the post of Library Assistant, the petitioner is admittedly the most meritorious candidate being placed at Sl. No. 1 of the list of selected candidates and as such under normal circumstances, she should be the senior most amongst the same appointees, appointed on the basis of the same recruitment process. She was, however, denied seniority by the University on the ground that she had joined a few days later than the private respondents. If the University wanted to strictly adhere to the seniority rule, as contemplated in Rule-16, the University ought not have given any period of joining. Rather, the University could have fixed a particular date of joining informing that failing to join on that particular date fixed by the University, seniority would be fixed in accordance with the provisions of Rule-16. If the University wanted to strictly adhere to the seniority rule, as contemplated in Rule-16, the University ought not have given any period of joining. Rather, the University could have fixed a particular date of joining informing that failing to join on that particular date fixed by the University, seniority would be fixed in accordance with the provisions of Rule-16. In the present case, as mentioned above, the University itself offered 15 days' period to the petitioner to join her service without any warning to the petitioner that she would lose her seniority in the event of late joining, even within the 15 days' period. It may be observed that as regards the offer by the University to the appointees to join service within 15 days and if anybody joined on an earlier date within the said 15 days, perhaps he or she may get additional benefit like salary, but that cannot be the ground to allow anyone to steal a march seniority over a person in terms of seniority who is placed higher in merit but joined on a later date within the said 15 days. 9. As observed above, since 15 days' time had been given to all the appointees, discretion was also given to the appointees to join expediently within the aforesaid 15 days' period but not later than 15 days, mother words, an appointee could join service on any date within the 15 days depending on the circumstance of the concerned appointee. Therefore, if seniority is to be determined from the date of actual joining and not on the basis of merit, seniority will be reduced to a fortuitous circumstance which is not contemplated in law. The certainty of seniority by virtue of merit cannot be reduced to a fortuitous status depending on the date of joining, Seniority cannot be based on certain variable circumstances but must be based on certain fixed and determinate criterion which has a rational basis to merit. It is now well settled in service jurisprudence that in any selection process the most meritorious candidate would get the seniority position over less meritorious candidate. The aforesaid well settled service jurisprudence is based on sound reason and any departure from the said principle would be arbitrary, discriminatory and would be violative of the Article 14 of the Constitution of India. 10. The aforesaid well settled service jurisprudence is based on sound reason and any departure from the said principle would be arbitrary, discriminatory and would be violative of the Article 14 of the Constitution of India. 10. As observed above, Rule-16 should be interpreted in such a manner, in tune with the well settled service jurisprudence as well as reasonableness by reading it down. By doing so, the interest of the petitioner can be protected without violating the Rules. Accordingly, this Court would read Rule-16 of the Gauhati University to mean that even if the date of joining may vary from person to person but if the same be within the time stipulated in the appointment order during which time the appointee is expected to join, and if the appointees join their respective duties within the stipulated time, it will be deemed that they had joined on the same day far as far as seniority is concerned and the date for reckoning seniority may be the date of issue of appointment order. Thus, if the aforesaid interpretation Rule-16 is adopted, the petitioner would retain her seniority over the private respondents by virtue of her merit position in the select list for appointment to the post of Library Assistant without any violence to the provisions of Rule 16. Otherwise, literal interpretation would lead to an absurd situation which should be avoided. Otherwise, it may not pass the test of reasonableness under Article 14 of the Constitution. In that view of the matter, if the promotion had been made on the basis of seniority as stated by the learned counsel for the University, the petitioner would be the most deserving candidate. 11. It may be noted that at one point of time, date of confirmation used to be accepted as one of the methods of determining seniority which principle has now been abandoned because of judicial intervention on the ground that it is fortuitous in nature. Similarly, in the present case, as discussed above, date of joining is a fortuitous incidence, based on the convenience or other uncertain circumstances and as such it cannot be the basis of determining seniority. The situation would be otherwise, if one joins service belatedly after the date of joining stipulated in the appointment order, which is not the case in the present case. 12. The situation would be otherwise, if one joins service belatedly after the date of joining stipulated in the appointment order, which is not the case in the present case. 12. In view of above and for the reasons discussed above, the petition is allowed. 13. It has been submitted by the learned Standing Counsel for the University that the impugned promotion of the respondents No. 5 & 6 to the posts of Senior Library Assistant was made by treating the petitioner as junior to the respondent Nos. 5 and 6. Since the seniority of the candidates in the feeder grade is an important criterion to be taken into consideration for promotion, the recommendation of DPC held on 09.10.2017 as well as the consequential promotion order dated 27.10.2017 are set aside and review DPC is required to be held for the promotion to the posts of Senior Library Assistant afresh by treating the petitioner to be senior to the private respondents. 14. The authorities are directed to hold a review DPC and reconsider the promotion to the posts of Senior Library Assistant within a period of 2 months from the date of receipt of a copy of this order and pass appropriate orders accordingly. During this interregnum period, if the posts of Senior Library Assistant are required to be filed up, the same may be done on temporary/ad-hoc/stop gap arrangement based on seniority in the grade of Library Assistant which will be subject to the regular promotion in terms of the directions issued.