ORDER

Date : 23-02-2021 Heard Mr. I. H. Saikia, learned counsel appearing for the petitioner in WP (C) no.

3142/2017. Also heard Mr. D. C. Borah, learned counsel appearing for the private respondent no. 6 who is the petitioner in the writ petition no. 1847/2015. I have also heard Mr. M. Nath, learned standing counsel appearing for PNRD in both the cases.

The petitioner in WP (C) no. 3142/2017 is challenging the service regularization order dated 24.08.2012 of the private respondent no. 6 (writ petitioner in WP (C) no. 3142/2017), being aggrieved by the fact that the regularization was given retrospective effect from 26.12.1990 i.e., the date on which she was appointed on adhoc. In WP (C) 1847/2015, the writ petitioner who is the respondent no.6 in the writ petition stated above is challenging the seniority position of the petitioner in that writ petition. In short the writ petitioners are claiming seniority against each other.

The case of the petitioner in WP (C) no. 3142/2017 simply stated is that since he was regularly appointed with effect from 16.05.1991 and since the service of respondent no. 6 was regularized only on 24.08.2012 and adhoc period of her service cannot be counted for the purpose of seniority he should be senior to her. In support of his submission the learned counsel referred to the decision of the Hon’ble Supreme Court in the case of K. Madalaimuthu & Another Vs. State of Tamil Nadu & Others reported in 2006 6 SCC

558. The relevant paragraphs are reproduces herein below:

“24 On a consideration on the submissions made on behalf of the respective parties and the decisions cited on their behalf, the consistent view appears to be the one canvassed on behalf of the appellants, the decisions cited by Mr. Rao have been rendered in the context of Rule 10 (a) (i) (1) and the other relevant rules which are also applicable to the facts of the instant case. The law is well established that initial appointment to a post without recourse to the rules of recruitment, an appointment to a service as contemplated under Rule 2 (1) of the General Rules, notwithstanding the fact that such appointee is called upon to perform duties of a post borne on the cadre of such service. In fact, Rule 39 (c) of the General Rules indicate that a person temporary promoted in terms of Rule 39 (a) is required to be replaced as soon as possible by a member of the service who is entitled to the promotion under the rules. It stands to reason that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time his appointment is regularized. Therefore, it is only from the date on which his services are regularized that such appointee can claim seniority over those appointees subsequently.

25. In the instant case the authorities, on the strength of the several Government Orders giving retrospective effect to the regularization of the promotees, have taken the date of initial appointment of such promotees as the starting point of their seniority. In our view, such a course of action was erroneous and contrary to the well established principles relating to determination of seniority. In our view, the High Court appears to have taken an erroneous view in the matter in holding that the period during which the promotees had initially discharged the duties of District Registrars, though appointed under Rule 10 (a) (i) (1) were to be counted for determining their seniority.

26. We, therefore, set aside the order passed by the High court and direct the concerned respondents to re-determine seniority of the appellants in relation to the promotees after reckoning the starting point of seniority of such promotees from the date of regularization of their services.”

The learned counsel appearing for the respondent no. 6 in the writ petition no.

3142/2017 and the petitioner in writ petition no. 1847/2015, and the learned counsel appearing for the State responde