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GAUHATI HIGH COURT
Brijesh Kumar, D.Biswas, JJ.
Anup Kumar Das : Sangitanjan Dutta -Appellant
Versus
Sanjib Kakati -Respondent
Writ Appeal Nos 181 and 264 of 1993
Decided On : 12-01-2000
Regulation 3 (f) - Appointment, Seniority - Assam Public Service Commission (Limitation of Functions) Regulation, 1951 - 3 (f)
Fact of the Case:
The case involved a dispute over the seniority of appointees under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951. The controversy centered around whether the period of service of an appointee under Regulation 3 (f) could be counted for the purpose of seniority on final appointment or regularisation of appointment.
Finding of the Court:
The court found that the appointment made under Regulation 3 (f) is ad hoc in nature and does not confer seniority rights. The court also emphasized that regularisation or substantive appointment does not make the incumbent eligible for seniority from the date of initial appointment. The court referred to various decisions of the Supreme Court to support its findings.
Issues: The main issue was whether appointees under Regulation 3 (f) were entitled to seniority from the date of their initial appointment or from the date of their substantive appointment or regularisation.
Ratio Decidendi: The court held that appointees under Regulation 3 (f) are entitled to seniority from the date of their substantive appointment or regularisation, not from the date of their initial appointment. The court also emphasized that the appointment under Regulation 3 (f) is ad hoc in nature and does not confer seniority rights.
Final Decision: The court modified the impugned judgment to grant the respondent-petitioner seniority from the date of his regularisation/substantive appointment on 7.4.87 and directed the respondent authority to recast the gradation list accordingly. The other reliefs granted by the learned Single Judge were not interfered with.
Writ Appeal No. 181 of 1993 and Writ Appeal No. 264 of 1993 arising out of the judgment and order dated 8.9.1993 passed in Civil Rule No. 655 of 1993 are proposed to be disposed of by this common judgment.
2. Dr. Sanjib Kakati, the writ petitioner prayed for issue of a writ of Mandamus calling upon the respondents to finalise the gradation list and not to fill up the vacant posts of Assistant Professor in the Department of Medicine in three Medical Colleges in the State of Assam before finalisation of the gradation list
3. The learned Single Judge by the impugned judgment and order issued the following directions:
'(i) The petitioner will be deemed to be a member of the service in the Department of Medicine of the Medical Colleges, Guwahati and he will be entitled to all the service benefits as are available to the other Registrars of Medicine and Resident Physicians. The petitioner would not be discriminated on the ground that he was originally appointed as Registrar of Medicine (Tropical and Infectious Disease).
(ii) As on today I find that the Tropical and Infectious Disease is a part and parcel of the Department of Medicine and the petitioner is entitled to be treated as holding the service in the Department of Medicine.
(iii) The petitioner will be entitled to count towards seniority, his period of service from 22.4.85/19.4.85 till his regularisation on 7.4.87. It is made clear that in determining/deciding the seniority the other similarly situated person in the Department should also be considered. It is further made clear that the law laid down regarding counting of seniority for the period of service under Regulation 3 (f), shall be kept confined only to the facts and circumstances of this ease and this decision will not be applied to open up a Pandora's Box to disturb/interfere with the seniority list already finalized fixed.
(iv) The respondent Nos 2,3 along with other persons whose help/association may be necessary shall determine the seniority list of Registrar, Resident Physician, etc of the Department of Medicine of all the Medical Colleges, Assam within a period of 3 (three) months from today by considering all the objections, representations, which may be submitted by the persons concerned. If the authority feels necessary, it may notify all the members of the Medicine Department in the rank of Registrars etc to submit necessary objections, representations, etc by giving them time for 15 days to submit said representations.
(v) No promotion, including ad hoc promotion, promotion under 4 (d) will be made to the post of Assistant Professor of Medicine without finalisation of the seniority list as indicated above, and thereafter only promotion will be made on seniority cum merit basis.”
4. Being aggrieved thereby, respondent No. 4 Dr. Anup Kumar Das and respondent No. 6 Dr. Sangitanjan Dutta preferred the appeals at hand on the ground that the writ petitioner Dr. Sanjib Kakati could not be given higher position in the inter se seniority list to the detriment of their respective position.
5. We have heard the learned counsel of all the parties. It emerges from their rival contentions that the controversy revolves around the sole question as to whether the period of service of an appointee under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 could be counted for the purpose of seniority on final appointment or on regularisation of appointment. In order to appreciate this question in its proper perspective, it is necessary to examine the nature and spirit of appointment contemplated under Regulation 3 (f), which reads as follows :
“3. It shall not be necessary for the Commission to be consulted in matters relating to methods of recruitment to civil services and posts or the suitability of the candidates for such appointments, in the following cases, namely : …
(f) when an appointment is to be made by direct recruitment to a temporary post created in a service if
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