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1996 Supreme(Gau) 267
IN THE HIGH COURT OF GAUHATI
N.S. Singh, J.
MIHIR LAL CHOUDHURI AND OTHERS - Appellant
Vs.
STATE OF TRIPURA AND OTHERS - Respondent
C.R. No. 311 of 1998
Decided on : 18-10-1996
For The Appellant : S. Roy
For The Respondent: G.C. Chakraborty, B. Choudhuri and S. Das
The seniority of government employees in the grade of Executive Engineer (Electrical) should be counted from the date of their regular appointment, not from the date of their ad hoc appointment.
Headnote:
SENIORITIY - EXECUTIVE ENGINEER (ELECTRICAL) - TRIPURA POWER ENGINEERING SERVICES RULES, 1987 - AD HOC APPOINTMENT - REGULAR APPOINTMENT - PROMOTION - DEPARTMENTAL PROMOTION COMMITTEE (DPC) - RECOMMENDATIONS - SERVICE JURISPRUDENCE - REGULAR FILLING OF POSTS - WRIT PETITION - PARTLY ALLOWED.
Fact of the Case:
The petitioners, who were Executive Engineers (Electrical), challenged the promotion of the respondents to the post of Superintending Engineer (Electrical) on ad hoc basis, the seniority list of Executive Engineers (Electrical), and the regular appointment of the respondents to the post of Superintending Engineer (Electrical). The petitioners contended that the promotions and appointments were illegal and violated their seniority and promotion rights.
Finding of the Court:
The court held that the seniority of the petitioners and the respondents in the grade of Executive Engineer (Electrical) should be counted from the date of their regular appointment, not from the date of their ad hoc appointment. The court also held that the impugned order regularizing the service of the seventh respondent, Shri Achinta Ghosh Roy, in the post of Executive Engineer (Electrical) on regular basis with retrospective effect from September 6, 1980 (AN) was illegal and void. The court further held that the ad hoc appointment of the respondents to the post of Superintending Engineer (Electrical) was justified due to the exigency of services and that there was no illegality or infirmity in doing so. The court also held that the impugned order of July 30, 1990, by which the respondents were promoted to the post of Superintending Engineer (Electrical) on regular basis, was valid and proper.
Issues: 1. Whether the seniority of the petitioners and the respondents in the grade of Executive Engineer (Electrical) should be counted from the date of their regular appointment or from the date of their ad hoc appointment? 2. Whether the impugned order regularizing the service of the seventh respondent, Shri Achinta Ghosh Roy, in the post of Executive Engineer (Electrical) on regular basis with retrospective effect from September 6, 1980 (AN) was illegal and void? 3. Whether the ad hoc appointment of the respondents to the post of Superintending Engineer (Electrical) was justified due to the exigency of services? 4. Whether the impugned order of July 30, 1990, by which the respondents were promoted to the post of Superintending Engineer (Electrical) on regular basis, was valid and proper?
Ratio Decidendi: 1. The seniority of the petitioners and the respondents in the grade of Executive Engineer (Electrical) should be counted from the date of their regular appointment, not from the date of their ad hoc appointment, as per the principles laid down by the Apex Court. 2. The impugned order regularizing the service of the seventh respondent, Shri Achinta Ghosh Roy, in the post of Executive Engineer (Electrical) on regular basis with retrospective effect from September 6, 1980 (AN) was illegal and void as he never served or worked as Executive Engineer (Electrical) on ad hoc basis at any point of time prior to his regular appointment to the post of Executive Engineer (Electrical) on February 25, 1981. 3. The ad hoc appointment of the respondents to the post of Superintending Engineer (Electrical) was justified due to the exigency of services and that there was no illegality or infirmity in doing so. 4. The impugned order of July 30, 1990, by which the respondents were promoted to the post of Superintending Engineer (Electrical) on regular basis, was valid and proper as the respondents were eligible for promotion to the post of Superintending Engineer (Electrical) in 1986 and 1987, respectively, as they had completed seven years of regular service as Executive Engineer (Electrical) under the relevant recruitment rules.
Final Decision: The court partly allowed the writ petition. The impugned orders of March 4, 1989, as in Annexures-C and D to the writ petition, were set aside. The court directed the concerned respondents-Government to fill up the said posts of Additional Chief Engineer (Electrical) as well as Superintending Engineer (Electrical) on regular basis in accordance with the relevant Service Rules after considering the case of all eligible officers for that purpose within a period of 3 (three) months from the date of the judgment.
JUDGMENT :
N.S. Singh, J.—An order of promotion dated December 16, 1988 of Shri Ajit Kumar Gupta and Shri Ajit Kumar Debnath, the fourth and Fifth respondents in this case, to the post of Superintending Engineer (Electrical) under Power Department, Government of Tripura on ad hoc basis for a period of six months from the date of taking over the charges or till the post is filled upon regular basis, whichever is earlier as well as thermal seniority list of Executive Engineers (Electrical) under the Power Department, Government of Tripura, published on December 16, 1988, placing the names of the Respondents No. 4 to 6 over the three petitioners and also the order of regular appointment of the fifth and sixth respondents to the post of Superintending Engineer (Electrical), appointment of the fourth respondent to the post of Additional Chief Engineer (Electrical) on ad hoc basis, are the main subject matters challenged in the present writ petition.
2. According to the petitioners, they are degree holders in Electrical Engineering and they were appointed as Assistant Engineers (Electrical) as direct recruits through Tripura Public Service Commission and subsequently they were promoted to the rank of Executive Engineer (Electrical) and that they are all eligible for promotion to the post of Superintending Engineer (Electrical) on the basis of their past meritorious and satisfactory services and also in accordance with their seniority. It is also the case of the writ petitioner that on the basis of the merit list prepared by a duly constituted Departmental Promotion Committee on January 21, 1981 for appointment to the post of Executive Engineer (Electrical) on regular basis, they are more meritorious than the Respondents No. 4, 5, 6 and 7.
3. In 1982, Public Works Department, Government of Tripura, published a tentative seniority list of the Executive Engineers (Electrical) as in Annexure-A to the writ petition, wherein the names of the petitioners appear at serial Nos. 8, 9 and 10 respectively and whereas the names of the Respondents No. 4, 5, 6 and 7 appear at serial Nos. 12, 14, 16 and 18. According to the writ petitioners, because of promotions, retirements and resignation of serving Executive Engineers (Electrical), the petitioners No. 1, 2 and 3 should be listed at serial No. 1, 2 and 3 in the relevant seniority list of Executive Engineers (Electrical) on the basis of merit list. However, the Respondents No. 1 to 3 have taken hasty steps to modify the seniority position as in the said tentative seniority list and have surreptitiously passed an order on December 16, 1988, behind the back and knowledge of the petitioners thereby placing the Respondents No. 4, 5 and 6 above the petitioners and on the very same day by another order of December 16, 1988, the said Respondents No. 4 and 5 have also been promoted to the post of Superintending Engineer (Electrical) on ad hoc basis without considering the case, of the writ petitioners for such promotion. The writ petitioners went on to state that the fourth respondent, Shri Ajit Kumar Gupta filed a writ petition before this Court being Civil Rule No. 127 of 1981 for a direction to the authority concerned for placing him above the present writ petitioners in the seniority list of Executive Engineers (Electrical). But the said case was dismissed as being infructuous on January 9, 1989.
4. As soon as the tentative seniority list as in Annexure-A to the writ petition, was published on January 3, 1982, the fourth respondent also filed a petition under Misc. Case No. 170 of 1982 in connection with Civil Rule No. 127 of 1981 before this Court praying for injunction restraining the respondent State from preparing/finalising the seniority list of Executive Engineers (Electrical)', and accordingly, this Court passed an order on July 8, 1982, restraining the State respondent from preparing/finalising the said seniority list. Thereafter, the State Respondent filed another petition being Civil Misc. Case
