High Court
Case Details
WA 204/2012 BEFORE HON’BLE THE CHIEF JUSTICE MR. A.K. GOEL HON’BLE MR. JUSTICE UJJAL BHUYAN (A.K.Goel, C.J.)
Decision
This appeal has been preferred with leave of the Court against order of learned Single Judge directing the official respondents to consider regularizati on of the services of the writ petitioner with consequential benefits from the d ate of temporary appointment. The respondent-writ petitioner approached this Court under Article 226 o f the Constitution seeking a direction for regularization of services with effec t from the date of his temporary appointment. Case of the writ petitioner is tha t he was temporarily appointed as Assistant Engineer in Municipal Corporation De partment under Regulation 3(f) of the Assam Public Service Commission (Limitatio n of Functions) Regulations, 1951 vide order issued by Governor dated 06.10.1993 . He was placed under the Guwahati Metropolitan Development Authority (GMDA) on part time basis and, thereafter, designated as Assistant Engineer on 10.1.1995. On 19.5.1995, he was released from the services of the Municipal Administration Department and given temporary appointment as Assistant Engineer by the GMDA. He joined GMDA on 5.10.1995. He sought promotion to the next higher post. Persons junior to him in service were regularized but he was not regularized nor the Ass am Public Service Commission (APSC) was moved for selection of Assistant Enginee r. Stand of the GMDA was that during pendency of the writ petition, which w as filed in the year 2006, petitioner was regularized in service with effect fro m 12.10.1999 and prior to that his service was purely temporary which could not be treated as regular service. Question framed by learned Single Judge for consideration was whether th e writ petitioner was entitled to regularization from 5.10.1995 which was the da te of his temporary appointment or from 12.10.1999 when he was regularized and i nducted to the CPF scheme. It was held that one Shri Pulak Kalita was initially appointed on ad-hoc basis, but in the gradation list he was shown to have been a ppointed on 24.1.1992, the writ petitioner was entitled to be treated at par for regularisation with Shri Pulak Kalita. The operative part of the order of learn ed Single Judge is as follows : The only question falls for consideration is as to whether the petitione (cid:28)11. r is entitled to get regularization of his service from his initial date of appo intment and joining i.e. 5.10.1995 and/or from the date of his induction to the CPF scheme i.e. 12.10.1999. The case of the petitioner will have to be considere d on the basis of the date of joining the service and not on the basis of he bec oming a member of CPF scheme. Irrespective of becoming a member of CPF scheme, t he service rendered by the incumbent upon his appointment by the employer cannot be obliterated. If the service of the petitioner could be regularized with effe ct from 12.10.1999 upon becoming a member of CPF scheme, it is not understood as to why the service cannot be regularized with effect from the date of joining t he service. In this connection, the case of Shri Pulak Kalita has been referred to b 12. y the petitioner, who in fact was appointed for a limited duration of three mont hs on adhoc basis. However, in the gradation list, he has been included at seria l No. 2 showing the date of appointment as 24.1.1992. On the other hand, the nam e of the petitioner has been mentioned in the said select list as (cid:28)Shri Jadav Go swami, BE, will enlisted after regularization of his post (cid:29). Thus, while the serv ice of Sri Kalita was regularized, although was appointed on adhoc basis, the ca se of the petitioner was not considered at par with said Sri Kalita. Even otherw ise also in the order of appointment of the petitioner as Assistant Engineer, th ere is no indication that his such appointment was for limited duration. However , merely because the appointment was stated to be on temporary basis, that by it self cannot lead to the inference that he was appointed on adhoc basis. 13. issible to a regular employee of the authority. As noticed above, the petitioner has been provided with all benefits adm 14. In view of the above, the writ petition is allowed with a direction to t he respondents to consider regularization of services of the petitioner consiste ntly with the observations made above. The case of the petitioner shall be consi dered as expeditiously as possible, preferably within 3 months from the date of receipt of a certified copy of this order. Needless to say that, upon regulariza tion of the service of the petitioner, he will be entitled to all consequential benefits, if any admissible to him. (cid:29) The appellant claims to be aggrieved by the impugned order on the ground that regularization of the writ petitioner with retrospective effect will affec t the seniority of appellant. He was appointed in substantive capacity under Guw ahati Development Department on 22.5.1986. Thereafter, under the provisions of G uwahati Metropolitan Development Authority Act, 1985 the appellant became employ ee of GMDA and on recommendation of DPC he was promoted as Assistant Engineer on 30.3.1997. He was aspirant for further promotion to the post of Assistant Execu tive Engineer based on his seniority and, thus, appointment of the writ petition er with retrospective date will affect the appellant. He was neither impleaded a s party nor heard nor relief granted to the writ petitioner was permissible unde r the law. We have heard learned counsel for the parties. It is undisputed that ad-hoc service cannot be counted for seniority in view of the law laid down in Direct Recruit Class II Engineering Officers’ Asso ciation -Versus- State of Maharashtra and others, (1990) 2 SCC 715 read with St ate of W.B. and others -Vs.- Aghore Nath Dey and others, (1993) 3 SCC 371. The impugned order directing consideration of regularisation from the date of commen cement of temporary service of the writ petitioner cannot be sustained. Accordingly, this appeal is allowed and the impugned judgment is set asi de.