High Court · 2010

[2] In this writ petition filed under Article 226 of the Constitutio n of India, the Notification dated 18.10.2004 (Annexure- 28 to the writ petition ), the final gradation list of senior lecturers of DIET under the Department of Education (Elementary), Govt. of Assam, is challenged by the petitioner on the g round, inter alia, that the petitioner despite having been regularised to the po st of senior lecturer, with effect from 1.4.1991, has been placed at Serial No. 38 of the gradation list, much below the other incumbents whom the petitioner c laimed to be the junior to her. [3] The following facts, which are not in dispute and which are nece ssary for disposal of this writ petition, are ascertained from the documents ava ilable on record and pleadings of the parties before this court: (i) It is stated that after having regularised the service of the pe titioner, as lecturer in DIET, with effect from 1.9.1989 by an order dated 21.6. 1999, the petitioner was temporarily appointed as senior lecturer under Regulati on 3(I) of the Assam Public Services (Ad-hoc) Appointment Rules, 1986 (hereinaft er referred to as the Rules of 1986). By another order dated 17.8. 1992, the pet itioner was again appointed as senior lecturer under Regulation 3(f) of the Assa m Public Service (Limitation and Function) Regulation, 1951, (hereinafter referr ed to as the Regulation of 1951), for a period of four months and the appointmen t of the petitioner was extended from time to time. (ii) The post of senior lecturer in DIET being a gezetted post falls within the purview of the Assam Public Service Commission (APSC for short). On 6 .11.1991, an advertisement was issued by the Public Service Commission for selec tion and appointment to a large number of posts in the grade of senior lecturer in DIET, but the petitioner could not appear in the interview held on 11.3.1993, as she did not receive the call letter from the APSC. (iii) Though, the APSC claimed to have sent a telegram to the petition er for appearing in the interview held on 11. 3.1993, the petitioner denied to h ave received such telegram and this assertion is sought to be justified by the p etitioner with the help of a certificate issued by the Telecom Department to the effect that no request for telegram was received from the APSC for dispatch to the petitioner. (iv) On 28.2.2000, a representation was filed by the petitioner befor e Government for regularisation of her service to the post of senior lecturer in DIET and, thereafter, the Government issued an order dated 24.4.2003 (Annexure - 23 to the writ petition) regularizing the service of the petitioner with effec t from 1.4.1991 with the approval of the State Cabinet. The regularization order -dated 24.4.2003 is reproduced herein below: (cid:28)GOVT OF ASSAM EDUCATION DEPARTMENT ORDERS BY THE GOVERNOR OF ASSAM NOTIFICATION Dated Dispur, the 24th April, 2003. NO. A(I) e. 133/2000/42 : The Governor of Assam is pleased to regularise the se rvices of Dr. Parbati Barthakur, Sr. Lecturer, CMDE-Branch, DIET- Sonitpur, Bisw anath Chariali, who was appointed as Sr. lecturer under regulation 3(i) of the A PSC vide Notification No. EDG.287/90/112, dtd. 25.3.91 and subsequently converte d to Reg. 3(f) of APSC vide No. B(2) H. 561/92/66 dt. 17.8.92 with effect from t he date of initial joining i.e. 1-4.91. This has been issued with the approval of the cabinet. Inter-se-seniority will be fixed later on. Sd/- S.K. Nath, Joint Secy. To the Govt. of Assam, Education Department (cid:29). [4] The case of the petitioner is that though the petitioner has bee n regularised by the aforesaid order, as extracted above, with effect from the d ate of joining i.e. 1.4.1991, the seniority in the grade of senior lecturer has not been granted by the authority with effect from 1.4.1991 and this is amply de monstrated by her placement at Serial No. 38 of the final gradation list i.e. be low 37 incumbents whose service were regularised on the recommendation of the Pu blic Service Commission in the year 1994. [5] Mr. Choudhury, learned senior counsel appearing on behalf of the petitioner submits that in absence of challenging this regularisation order or any modification by the Government, the seniority of the petitioner should be co unted from the date of retrospective regularisation i.e. 1.4.1991 and as such, i t was not correct for the authority to place her in the gradation list below the 37 candidates whose services were regularised only in 1994. Mr. Choudhury furth er submits that Para 22 of the Second Schedule of the Assam Rules of Executive B usiness, 1968, empowers the Government to act otherwise than in accordance with the advice of the Public Service Commission. Para 22 of the Second Schedule of t he Assam Rules of Executive Business, 1968 is quoted below: (cid:28)Proposals to act otherwise than in accordance with the advice of the Public ser vice Commission (cid:29) [6] When there is recruitment rules/ service rules framed under Arti cle 309 of the Constitution of India for regulating the recruitment and service conditions of a post, the appointment to the post is to be made only in accordan ce with such statutory rules after due advertisement and public competition, oth erwise any appointment made in derogation of the rules framed under Article 309 will not meet the requirement of Articles 14 and 16 of the Constitution of India . However, in the given case, the regularisation order dated 24.4.2003 with retr ospective effect from 1.4.1991 has not been put to challenge for determination o f this court on its legality or otherwise, vis-à-vis Para 22 of the Assam Rules of Executive Business, 1968 as extracted above. In the circumstance, this court shall not dwell any further on the question of legality or otherwise of the abov e regularisation order. [7] In the affidavit -in-opposition filed by the Govt., a categorica l stand has been taken that by virtue of the regularisation of the service of th e petitioner as senior lecturer with effect from 1.4.1991, the petitioner would be entitled to all the retiral and other financial benefit but inter-se-seniorit y will have to be determined with reference to the actual date of appointment to the post. There have been not less than 37 incumbents who have been appointed a s senior lecturers in the year 1994 on the recommendation of the Public Service Commission and as such, the petitioner whose service was regularised by an order dated 24.4.2003, though with retrospective effect from 1.4.1991, cannot be allo wed to steal a march ahead on the regularly appointed incumbents in the matter o f fixation of seniority inasmuch as those incumbents have already been borne to the cadre of the post for a decade ahead of the petitioner. That apart, relevant recruitment rules in force does not contemplate and authorize any retrospective regularisation. [8] In the background of the facts as discussed above and in the lig ht of the rival submissions advanced by the learned counsel appearing for the pa rties, this court is to consider and decide whether the petitioner is entitled t o seniority in the grade of senior lecturer with effect from 1.4.1991 as claimed by her. Before this issue is determined, it is felt necessary to ascertain the nature of appointment contemplated under regulation 3 (f) of the Regulation of 1 951. As noticed above, the initial ad- hoc appointment of the petitioner was und er rule 3(I) of the Rules of 1986 and thereafter, the petitioner was appointed t o the post of senior lecturer under regulation 3(f) of Regulation 1951, which is also reflected in the regularisation order dated 24.4.2003. The regulation 3(f) is quoted below: When an appointment is to be made by direct recruitment to a temporary p (cid:28)3(f) ost created in a service, if it is necessary in the public interest that the app ointment should be made immediately and reference to the Commission would cause undue delay; provided that if the post has been sanctioned for, or is likely to last for more than four months, the Commission shall, as soon as possible, be co nsulted in all the matters mentioned in sub-clause 3 of Article 320 of the Const itution (cid:29). [9] A bare reading of the Regulation 3 (f) as extracted above, would leave no doubt that the Government is authorized to make appointment for a peri od of four months in order to meet some emergent situation. A careful reading o f regulation 3(f) would make it further clear that the Govt. is not authorized t o make any regular appointment to a post under this regulation. The status and e ffect of appointment under regulation 3(f) with reference to seniority is no lon ger res integra as the issue has been decided affirmatively by a Division Bench of this Court in in 200 (1) GLT 429 (Anup Kr. Das (Dr) Vs. Sanjib Kakati (Dr) wh erein the appointment/ regularisation under Regulation 3(f) was held to be in t he nature of ad-hoc and period of service rendered during the appointment under regulation 3(f) cannot be counted toward seniority. In another case reported i n 2000 (1) GLT 540 (Bhuban Chandra Konwar Vs. State of Mizoram and others), a Di vision Bench has reiterated the view taken in Anup Kr. Das (Dr.) case (supra). Admittedly, the petitioner has been appointed on ad-hoc bas [10] is under rules 3(1) of the Rules of 1986 and thereafter, under Regulation 3(f) o f the Regulation of 1951 as noticed above, and as such, the period of service re ndered during ad-hoc appointment and appointment under regulation 3(f) cannot be counted towards seniority in the cadre of senior lecturer in DIET. Seniority in a particular grade has to be determined with reference to the actual date of ap pointment to the cadre

11. In view of what has been discussed hereinabove and settlement of the issue in question by two Division Bench of this court, this court is of the view that there is no merit in the case, consequently, this writ petition is di smissed as devoid of merit. No costs.