High Court
Case Details
WP(C) 2973/2006 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI JUDGMENT AND ORDER ( ORAL ) Heard Mr. K. K. Mahanta, learned Sr. Counsel for the petitioner. Also heard Mr. K. Goswami, learned counsel appearing for the respondent No. 5 and Ms. P. Bhatta charjee, learned Standing Counsel, Education. 2. The sole point for consideration in this case is as to whether the past service of the petitioner in Assam Syntex Ltd, a Government of Assam Undertaking can be taken into consideration for the purpose of counting his seniority in As sam Textile Institute, a Government institute, from the date of his appointment there as a Lecturer on 04.07.1994. 3. The petitioner was appointed on 13.03.1996 as Sr. Technical Supervisor i n Assam Syntex Ltd., which is a sister concern of Assam Industrial Development C orporation, in short, AIDC, also a Government of Assam Undertaking. The petition er is a graduate in Textile Engineering and had initially joined as Management T rainee (Textile) in AIDC Ltd. 18.01.1985. 4. During his tenure in the Assam Syntex Ltd., the petitioner earned certai n promotions, a detailed discussion of which is not relevant for this case. Subs equently, the petitioner, pursuant to an advertisement, submitted his candidatur e for his appointment as a Lecturer in Assam Textile Institute. He having been s elected and recommended by the Assam Public Service Commission, in short, APSC, the petitioner joined as a Lecturer in Assam Textile Institute on 04.07.1994 aft er letter of appointment was issued on 28.06.1994. The date of joining in the As sam Textile Institute and his date of release from Assam Syntex Ltd is the same i.e. 04.07.1994. By letter dated 03.05.1997, the petitioner was also given pay p rotection under the provisions of FR 22-A providing that the personal pay that w as granted would be merged with the next pay increment. 5. The respondent No. 5 was initially appointed as a Lecturer on ad hoc bas is in March, 1990 and subsequently, APSC having selected and recommended him for being appointed as Lecturer in the Assam Textile Institute, he joined there on 26.08.1992. A seniority list dated 17.10.2005 was prepared in which, the name of the petitioner was at Sl. No. 4 and the name of the respondent No. 5 at Sl. No. 1. The respondent No. 5 was also given the senior scale w.e.f. 26.08.2000. The petitioner had represented to carry forward his past service to Assam Textile In stitute for the purpose of seniority. The representation of the petitioner was r ejected by Order dated 21.01.2006 (Annexure - 21) by the Government on the groun d that services rendered in any establishment other then Government establishmen t cannot be counted and therefore, the seniority has to be counted from the date of his joining as Lecturer in Assam Textile Institute.
Legal Reasoning
6. Mr. K.K. Mahanta, learned Sr. Counsel for the petitioner submits that wh ile submitting his candidature for the post of Lecturer in Assam Textile Institu te in response to the advertisement issued by the APSC, the petitioner had, as r equired by the said advertisement, submitted a No Objection Certificate, a copy of which is also produced before the Court. As the petitioner was selected in th e interview held by APSC and as the petitioner was already in public employment being in the services of a Government of Assam Undertaking, it was ensured by bo th the authorities of the public sector undertaking and the Government that ther e is no break in service. Therefore, date of his joining in the Assam Textile In stitute and date of his release from Assam Syntex Ltd. was same. It is contended by the learned Sr. Counsel that when pay protection was granted to him by the G overnment, there cannot be any justifiable reason for not carrying forward the p ast service rendered by the petitioner in the Assam Syntex Ltd. for the purpose of counting his seniority. It is also urged by him that there being no dispute t hat the Assam Syntex Ltd. is a public sector undertaking of Government of Assam, the reason cited for rejecting the representation of the petitioner cannot be s ustained. 7. The learned Sr. Counsel also places reliance on a notification issued by the All India Counsel for Technical Education (AICTE) (Annexure - 5) to contend that counting of service outside the education institution subject to the insti tution being one as enumerated in the notification, will be permissible to accor d the benefit of past service and to that extent, there is total non application of mind on the part of the authorities while rejecting the prayer of the petiti oner. It is contended by him that by an office memorandum dated 20.05.2004 (Anne xure - 18), the Government of Assam had adopted the AICTE notification dated 30. 12.1999. He places reliance in support of his submission in a judgment of the Ap ex Court rendered in the case of Tej Narain Tewari Vs. State of Bihar and Ors., reported in (1993) Supp (2) SCC 623. The contentions of Mr. Mahanta is opposed by Mr. K. Goswami, learned cou 8. nsel for the respondent No. 5. At the outset, he raises the question of maintain ability of the writ petition on the ground that two of the Lecturers senior to t he petitioner have not been made party respondents. He submits that even the res pondent No. 5 was not arrayed as a party respondent and as there was a potential of serious prejudice being caused to him in the matter of seniority, he had fil ed application for impleadment as party respondent in this proceeding and that i s how, he is before this Court. His contention is that there cannot be any manne r of doubt that if any order is passed in favour of the petitioner, surely and c ertainly, the two senior Lecturers as reflected in the seniority list will be af fected and therefore, they are necessary parties in this proceeding and they bei ng not arrayed as party respondents, the writ petition is liable to be dismissed for non-joinder of necessary parties. 9. Coming to the merits of the case, the learned counsel submits that grant of pay protection is one thing and claim of seniority another. In a case where pay protection is granted, the same does not affect, per-se, the rights of any o ther individual, but in a case where claim for seniority is prayed, the grant th ereof may have adverse impact in the service career of an individual. 10.
Decision
Therefore, his contention is that grant of pay protection would not lead to the inevitable conclusion that the petitioner is entitled to be accorded the benefit of past service. It is also submitted by him that the Assam Technical E ducation Service Rules, 1981, for short, the Rules, provide mechanism for determ ination of seniority. According to him, Rule 22 holds the key for resolving the dispute. There being no manner of doubt that the respondent No. 5 was a member i n the cadre prior to the writ petitioner, there is no scope of amalgamating past service rendered in Assam Syntex Ltd. and seniority of the writ petitioner has to be counted from the date of his appointment in the Assam Textile Institute. M r. Goswami further submits that the petitioner had applied for the post of Lectu rer in the Assam Textile Institute and he having been selected, was appointed as Lecturer. It is a fresh appointment and has no connection whatsoever with his p revious employment and therefore, even if there is no break between the date of his release from his earlier employment and date of joining in the fresh assignm ent, the same will have no bearing and is of no consequence. It is further urged by him that reliance placed on the AICTE notification dated 30.12.1999 is mispl aced, as the same, in any view of the matter, cannot relate back to the year 199 4 in absence of any stipulation that the same would have retrospective effect. I f it was so, the petitioner would not have been even eligible to be appointed as Lecturer in Assam Textile Institute because in view of the AICTE recommendation dated 30.12.1999, eligibility criteria for appointment in a teaching post is a 1st class Bachelor degree in appropriate branch of engineering technology or 1st class degree in appropriate branch for teaching post in humanities and science, and admittedly the petitioner is possessed of only 2nd division in his degree o f Bachelor of Textile. Mr. Goswami also submits that notification of AICTE on wh ich reliance was placed by Mr. Mahanta only provides for placement of Lecturer i n senior scale/selection grade subject to fulfilment of certain conditions if a Lecturer was having previous continuous service. It is also submitted by him tha t by a letter dated 19.07.1994 (Annexure - 11), the petitioner had prayed only f or his pay protection, which was granted and had not prayed for counting his ser vice in Assam Syntex Ltd. for fixation of his seniority and it is at a much bela ted stage, in the year 2003, vide a letter dated 05.03.2003, such claim was rais ed. In order to buttress his submission, the learned counsel has placed reliance on the decisions of the Apex Court in Gurmal Singh and Ors Vs. State of Punjab and Ors, reported in (1991) 1 SCC 189 and Surendra Singh Gaur Vs. State of MP & Ors, reported in (2006) 10 SCC 214. 11. Ms. P. Bhattacharjee, learned Standing Counsel, Education, by relying up on the affidavit filed, has contended that having regard to the Rules in force a nd also having regard to the fact that the petitioner was not employed in Govern ment service, order dated 21.01.2006 cannot be faulted with. 12. terials on record. I have heard the learned counsel for the parties and have perused the ma 13. This Court does not consider it necessary to determine whether the writ petition is liable to be dismissed for non-joinder of necessary parties in view of the fact that the incumbent at Sl. No. 1 in the select list in the form of re spondent No. 5 is a party to the proceeding and is heard. Rule 22 of the Rules reads as follows: 14. (cid:28)Seniority - t recruitment or by promotion shall be determined according to the order of meri t in the respective Select List, if he joins the appointment within 15 days from the date of receipt of the order or within the extended period as mentioned in The seniority of a member in a cadre, appointed by direc (1) Rule 19. (2) If a member fails to join the appointment within the initial 15 days of receipt of the order or within the extended period, as mentioned in Rule 19 but joins later, his seniority shall be determined in accordance with the da te of joining. (3) A member appointed by promotion in a year shall be senior to a m ember appointed by direct recruitment in that year. (4) The seniority of officers recruited for special post and are con tinuing as such shall be determined by special orders of the Government. (5) The seniority of members of a cadre mentioned in Rule 3(1) but belonging to different branches of the cadre shall be determined in accordance with the d ate of joining. But in case two or more members join on the same date, their int er-se seniority shall be determined in accordance with date of birth. (cid:29) 15. Member is defined in Rule 2(f) of the Rules, to mean a member of the Ass am Technical Education Service. Necessarily, one can be a member of the Assam Te chnical Education Service only after his appointment to the service. The petitio ner was directly recruited to the post of Lecturer in terms of Rule 6 of the Rul es. The respondent No. 5 was also similarly directly recruited, however, prior i n point of time. 16. The petitioner had, for better prospects, decided to participate in the selection process initiated by APSC for direct recruitment to the post of Lectur er. No doubt, the Government had accorded pay protection to the petitioner. This Court is inclined to accept the submission of Mr. Goswami that grant of pay pro tection and fixation of seniority are in two different planes and grant of pay p rotection, ipso facto, will not enable the petitioner to carry the benefit of pa st service for counting of seniority in the new post. When it is a case of direc t recruitment, it will be difficult to visualise that past service could be car ried forward for the purpose of fixation of seniority as such interpretation wou ld result in causing violence to the provision of Rule 22. The AICTE notificatio n of 30.12.1999 does not also in any way help the cause of the petitioner. At th e relevant point of time, when the petitioner joined as Lecturer in Assam Textil e Institute, the said notification had not seen the light of the day. That apart , Clause 9.0 of the AICTE notification, which was on the subject of revision of pay scales and associated terms and conditions of service of Teachers, Librarian s and Physical Education Personnel for diploma level technical institutions spea ks of counting of qualifying service for career advancement. Clause 9.2 thereof provides for counting of service outside the institutions only for the purpose o f placement of Lecturers in senior scale/selection grade provided that the conce rned Lecturer, amongst others, is possessed of the minimum qualifications prescr ibed by AICTE for appointment as Lecturers. Admittedly, the petitioner does not have such qualification as prescribed. 17. In Gurmal Singh (Supra), albeit in a different context, the Apex Court h ad stated that to permit a claim of seniority of an employee who had been induct ed from Irrigation branch of the Public Works Department of Punjab to the Punjab State Tubewell Corporation would result in injustice to those employees whose s eniority was based on their terms and conditions of service with the Corporation which have been entered into a long time before the transfer proposal came to b e implemented. In Surendra Singh Gaur (Supra), it was held that past service ren dered by an employee in the earlier department cannot be counted for the purpose of determining his seniority in the department in which he was transferred and absorbed on his personal request. 18. The decision cited by Mr. Mahanta in Tej Narain Tewari (Supra) relates t o a situation where service of an incumbent of a post was compulsorily transferr ed to a new post consequent upon which the previous post held by him was abolish ed and it was in that context, the Apex Court had stated that past service had t o be reckoned for the purpose of computing seniority. The ratio is not applicabl e to the facts of this case. As has been noticed earlier, it was a voluntary dec ision of the petitioner to apply for the post of Lecturer in Assam Textile Insti tute. There was no office memorandum or notification at the relevant point of ti me enabling a person employed in a public sector undertaking to carry forward hi s past service should he be appointed in a Government post. The relevant Rules a lso do not provide any scope for accommodating the claim of the petitioner. 19. In view of the above discussion, I find no merit in this application and accordingly, the same is dismissed. No cost.