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IN THE HIGH COURT OF GAUHATI
BIPLAB KUMAR SHARMA, J.
Mejum Karga – Appellant
Vs.
State of Arunachal Pradesh and Ors. – Respondent
WP(C) Nos. 231 of 2005 and 157 (AP) of 2003
Decided On: 11.05.2005
Seniority Dispute - Regularization of Service - Arunachal Pradesh Secretariat Subordinate Service Rules, 1989 - Rule 77 of GFR - Regularization of ad hoc/officiating promotion - Seniority List of UDC - Regularization of service with retrospective effect - Seniority dispute between UDCs - Regularization of service de hors the rules - Seniority based on regularized officiating promotion
Fact of the Case:
The petitioner, an Upper Division Clerk (UDC) challenged the legality and validity of the fixation of seniority of the respondent No. 3, an UDC in the same department above her. The petitioner was appointed as UDC on ad hoc and temporary basis, while the respondent No. 3 was appointed as Lower Division Clerk (LDC) through a regular selection process. The dispute arose regarding the seniority of the petitioner and the respondent No. 3 in the cadre of UDC amidst the publication of different seniority lists and consideration of their cases by the Departmental Promotion Committee (DPC) and Review DPC.
Finding of the Court:
The court found that the petitioner's ad hoc appointments were made without following the recruitment rules, and her subsequent regularization by the DPC was de hors the rules. The respondent No. 3 was regularly recruited as LDC and subsequently given officiating promotion against a clear vacancy, which was regularized by the DPC. The court held that the petitioner was not entitled to count her seniority from the initial date of appointment and dismissed the writ petition.
Issues: The main issue was the legality and validity of the fixation of seniority of the respondent No. 3 above the petitioner, based on the regularization of their services and officiating promotions.
Ratio Decidendi: The court held that ad hoc service rendered by an incumbent upon recruitment to the service de hors the rule cannot be counted towards seniority, and regularisation of such service cannot be a mode of recruitment. The court emphasized the need for strict conformity with the recruitment rules for both direct recruits and promotees, and held that the petitioner was not entitled to count her seniority from the initial date of appointment.
Final Decision: The court dismissed the writ petition, upholding the seniority of the respondent No. 3 above the petitioner, based on the regularized officiating promotion of the respondent No. 3 and the irregular ad hoc appointments of the petitioner.
B.K. Sharma, J.
1. The petitioner, an Upper Division Clerk (UDC) working in the department of Rural Development, Govt. of Arunachal Pradesh, has, by way of this writ proceeding, challenged the legality and validity of the fixation of seniority of the respondent No. 3, an UDC in the same department above her. Although the petition was filed with limited grounds towards such a challenge, in due course with the appearance of the respondent No. 3 in the proceeding by way of filing counter affidavit, the petitioner has brought certain new facts in her reply affidavits filed in respect of the counter affidavit of the respondent No. 3 as well as the counter affidavit filed by the official respondents. An additional affidavit has also been filed by the respondent No. 3 to the reply affidavit of the petitioner. Amidst such pleadings, both the petitioner and the respondent No. 3 have reduced their respective facts of the case by submitting their respective list of dates with brief facts, which are reproduced below :
List of dates on behalf of the petitioner
4.1.1995 : The petitioner was directly appointed as UDC against vacant post
temporarily w.e.f. 2.1.1995 – Annexure-A
26.4.1995 : The respondent No.3 was temporarily promoted to the post of
UDC from LDC on officiating basis under Rule 77 of the GFR against vacant post of Jt. B.D.O. Annexure-C
20.10.1998 : Combined Seniority List of Ministerial Staff on the Head Quarter
Establishment of Rural Development showing the name of the
petitioner at Serial No.3 and the respondent No.3 at Serial No.5 of
UDC – Annexure-D
18.6.2002 : As per recommendation of DPC, UDCs were regularized. The
petitioner was regularized w.e.f. 2.1.1995, i.e., the date of appointment. The respondent No.3 was regularised from 30.5.1997 – Annexure-E
12.9.2002 : Representation of the petitioner before the Director to promote her
to the post of Assistant as she is the senior most UDC eligible for promotion – Annexure-E
22.11.2002 : Provisional Seniority list of UDC showing the petitioner at Serial
No.4 and the respondent No.3 at Serial No.5 – Annexure-G
9.5.2003 : The regularization of ad hoc/officiating promotion as UDC of
respondent No.3, Vide order dated 18.6.2002, was modified and
regularized w.e.f. 18.6.2002, i.e. w.e.f. a date earlier to her ad hoc promotion as UDC superseding the petitioner who was already serving as UDC w.e.f. 2.1.1995 – Annexure – H
19.5.2003 : Representation to promote the petitioner as Assistant – Annexure-I
20.5.2003 : Final Seniority List of UDC showing the petitioner at Serial No.5
as UDC w.e.f. 20.1.1995 and the respondent No.3 as UDC w.e.f.
18.6.1994, i.e. from a retrospective date of her actual ad hoc promotion to UDC which is 13.4.1995 – Annexure-J
List of dates on behalf of the respondent No.3 28.10.19.90: Written
and typing test for filling up the vacancies the post of Lower
Division Clerk in Rural Development Department was held. Total 139 candidates were called for written and typing test out of which only 29 candidates appeared in the typing test and 27 candidates appeared in the written test.
4.1.1991 : Meeting of the Selection Committee was held and it recommended
six candidates in order of merit for appointment to the post of Lower Division Clerk under Rural Development Department, The name of the Respondent No.3 Amoti Perme figured at Sl. No.5 of the select list.
(Minutes of the Selection Committee dated 4.1.1991 is Annexure-R/9, page 5 of the additional affidavit of R/3)
10.1.1991 : Memorandum issued by the Rural Development Department
offering appointment of the post of LDC to the respondent No.3.
(Annexure-R/10, page 6 to the additional affidavit filed by R/3\
14.1.1991 : R/3 accepted the offer of appointment dated 10.1.1991.
(Annexure-R/11, page 8 to the additional affidavit filed by R/3)
14.1.1991 : Formal order was passed appointing R/3 as LDC under Rural
Development Department, (Annexure – AIO/1, page 12 of the affidavit-in
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