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2017 Supreme(Gau) 1180
IN THE HIGH COURT OF GAUHATI, AIZAWL BENCH
Michael Zothankhuma, J.
Lallawmawma and Ors. - Appellants
Vs.
Joseph Lalthakima and Ors. - Respondent
W.P. (C) No. 63 of 2017 and IA (C) No. 75 of 2017
Decided On : 08-09-2017
For the Appellant : Joseph L. Renthlei, Victor Lalremmawia and Cyndy Lallawmzuali
For the Respondents: Linda L. Fambawl, GA, J.C. Lalnunsanga, C. Lalfakzuala, Reuben L. Tochhawng, Ruth Lalchhanzuali Varte, Lalremsanga, Saithangpuia Sailo and Priscilla V. Khiangte
Headnote:
Constitution of India – Article 14 & 16 – Accounts Services (Group-B Non-Gazette Post) Recruitment Rules, 2006 – Contractual Services – Determination of Seniority – Public Service Commission – Petitioners counsel submits that past services of the petitioners on contractual basis have been counted for purpose of leave only – He submits that past contractual services of petitioner should also be counted for purpose of pension and seniority – He also submits that there are numerous decisions of Apex Court wherein past services of ad-hoc and temporary employees have been counted for the purpose of seniority when Rules are silent petitioners counsel also submits that petitioners came into cadre of ADA when the petitioners were appointed on contract basis as ADA – Held, Court passed in same was with regard to a seniority dispute between two groups of contractual employees with regard to seniority – Division Bench held that contractual employees who had been appointed after having been appointed in accordance with recognised method of recruitment consistent with Article 14 & 16 of Constitution of India would be entitled to count their contractual services from their date of appointment on contractual basis ahead of those contractual employees who were appointed without following recognised method of recruitment case is not applicable to case in hand as dispute herein is with regard to seniority of contract employees who have been regularised after appointments were made vide direct recruitment – Writ petition and the same is accordingly dismissed.
Michael Zothankhuma, J.
1. Heard Mr. Joseph L. Renthlei, counsel for the petitioner. Also heard Mrs. Linda L. Fambawl, counsel for the State respondents, Mr. J.C. Lalnunsanga for the respondent No. 5 and Mr. C. Lalfakzuala for the respondent Nos. 6 to 28. The petitioner's case in brief is that the petitioner Nos. 1 and 2 were appointed as Assistant Divisional Accountants (ADA) on contract basis on 20.10.2009 and 16.10.09. The private respondent Nos. 6 to 28 on the other hand, were directly recruited as ADA between the year 2012 and 17.03.2015.
2. The services of the petitioners on contract basis were regularized by the State respondents under the "Government of Mizoram Regularization of Contract Employees Scheme, 2008", (herein after referred to as the 2008 Scheme) w.e.f. 28.05.2015 vide Office Order No. 13 of 2015 - 2016 dated 03.06.2015.
3. The petitioners are aggrieved by the final inter-se-seniority list dated 28.03.2017 wherein the petitioners are placed at Serial No. 45 and 47, while the private respondents are placed from Serial No. 1 to 13 and 35 to 44. The petitioners claim that they should be made senior to the private respondents by counting their past contractual services for the purpose of seniority.
4. The petitioner's counsel submits that the petitioners were appointed after an advertisement was issued and selection process made as per the Mizoram Sub-Ordinate Finance & Accounts Services (Group-B Non-Gazette Post) Recruitment Rules, 2006 (herein after referred to as the 2006 Rules).
5. The petitioner's counsel submits that the past services of the petitioners on contractual basis have been counted for the purpose of leave only. He submits that the past contractual services of the petitioner should also be counted for the purpose of pension and seniority. He also submits that there are numerous decisions of the Apex Court wherein, the past services of the ad-hoc and temporary employees have been counted for the purpose of seniority when the Rules are silent. The petitioner's counsel also submits that the petitioners came into the cadre of ADA when the petitioners were appointed on contract basis as ADA. In this respect he has relied upon the Judgment of the Apex Court in the case of (1) S.B. Patwardhan & Anr. v. State of Maharashtra & Ors., reported in 1977 (3) SCC 399, (2) Baleshwar Dass & Ors. v. State of U.P. & Ors. And Arhant Prasad Jain & Ors. v. State of U.P. & Ors., reported in 1980 4 SCC 226, (3) Direct Recruit Class II Engineering Officers 'Association v. State of Maharashtra & Ors., reported in 1990 2 SCC 715, (4) Dev Dutta & Ors. v. State of M.P. & Ors. And Devdutta & Ors. v. The Chief Secretary to the Government of M.P. & Ors., reported in 1991 Supple 2 SCC 553, (5) I.K. Sukhija & Ors. v. Union of India & Ors., reported in 1997 6 SCC 406, (6) State of Rajasthan & Ors. v. Jagdish Narain Chaturvedi, reported in AIR 2010 SC 157 and (7) S. Sumnyan & Ors. v. Limi Niri & Ors., reported in 2010 6 SCC 791.
6. The petitioner's counsel has also relied upon the Division Bench of this Court passed in WP(C) No. 244/2012, wherein at Paragraph-11, the following observation has been made.
"As already noticed, the appellants have also fulfilled the criteria for regularization of their services provided for in the Scheme. Once the appellants have been found to be appointed to the post of Assistant Auditor in accordance with the recruitment rules, they will be entitled to count their past contractual services after regularization of their services. In any view of the matter, except for regular appointees, if there are any, the seniority of the appellants must be counted from the dates of their respective entry into contractual service through DPC. In other words, the past services rendered by them on contract appointment through DPC cannot be wiped out altogether".
He thus submits that due to the above reasons, the seniority list dated 28.03.2017 should be set aside and the petitioners should be placed above the priva
