Gauhati High Court
Mejum Karga vs State Of Arunachal Pradesh And Ors. on 11 May, 2005
Equivalent citations: (2005)3GLR72
JUDGMENT 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 regularised.
The petitioner was regularised 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 regularisation 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 in 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 to 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 : R/3 submitted joining report and joined her duties as LDC (Annexure- R/12, page 9 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-opposition of R/3) 28.5.1993 : Writ petitioner was appointed as UDC on ad hoc basis without any process of selection from 22.7.1993 to 19.8.1993. She was given periodic extension from time to time; vide orders dated 27.8.1993, 15.12.1993, 4.3.1994, 21.6.1994, 5.9.1994, 4.1.1995, 26.4.1995. The last order extending her service as UDG is dated 26.4.1995 by which her ad hoc period as UDC was allowed to continue with effect from 1.4.1995 till further orders.
(Annexure-AIO/4 colly, pages 23 to 25 to the affidavit-
in-opposition of R/3) 14.1.1994 : R/3 completed three years of qualifying service as LDC on 14.1.1994 and under the provisions of Arunachal Pradesh .Secretariat Subordinate Service Rules, 1989, became eligible for promotion to the post of Upper Division Clerk-
13.4.1995 : Order appointing R/3 as UDC on officiating basis with effect from 18.6.1994. The order was passed in terms of the provisions under Rule 77 of GFR. (Annexure-AIO/ 3, page 22 of affidavit-in-opposition of R/3) 28.5.2002 : Office Memorandum circulating provisional seniority list of UDC/LDC in the establishment of Rural Development Department. The name of R/3 was shown as Sl. No. 7.
In this list, the name of the Writ Petitioner did not appear.
(Annexure- AlO/1 colly, page 14 to the affidavit-in- opposition filed by R/3) 18.6.2002 : Order of Director, Rural Development Department regularising the ad hoc/officiating promotion of respondent No. 3 to the post of UDC with effect from 30.5.1997 and that of writ petitioner with effect from 21.1.1995 pursuant to the recommendation of DPC.
(Annexure-AIO/5, page 26 to the affidavit-in-opposition of R/3) 25.6.2002 : Representation of R/3 for regularizing her promotion to the post of UDC with effect from 18.6.1994 (i.e., the date on which the order of appointing R/3 as UDC on officiating basis was issued) and against regularising her promotion as UDC with effect from 30.5.1997.
(Annexure-AIO/5, page 26 to the affidavit-in-opposition) 25.6.2002 : Representation of R/3 for regularising her promotion to the post of UDC with effect from 18.6.1994 (i.e., the date on which the order of appointing R/3 as UDC on officiating basis was issued) and against regularizing her promotion as UDC with effect from 30.5.1997.
(Annexure-AIO/6 colly, page 27 of affidavit-in-opposition by R/3).
8.7.2002 : Another representation of R/3 for the same purpose.
(Annexure-AIO/6 colly, page 28 of affidavit-in-opposition by R/3.
7.10.2002 : Order of Director, Rural Development Department regularising the promotion of R/3 as UDC with effect from 15.2.1996. This order was in partial modification of earlier order dated 18.6.2002.
(Annexure - AIO/7, page 29 of affidavit-in-opposition by R/3) 7.10.2002 : Order of Director, Rural Development Department regularising the services of the writ petitioner as UDC with effect from 2.1.1995. This order was in partial modification of the earlier order dated 18.6.2002. The order was passed in terms of the report submitted by Review Committee held on 16.9.2002.
(Annexure-AIO/8, page 30 of affidavit-in-opposition by R/3).
22.11.2002 : Office Memorandum publishing seniority list of UDC/ LDC/Assistant of Rural Development Department was issued. In the seniority list, the date of appointment of R/3 as -UDC was shown as 15.2.1996 and that of Writ petitioner was shown as 2.1.1995.
(Annexure-G/1, page 22(24) to the writ petition) Another representation submitted by R/3 seeking correction of her date for promotion as UDC 9.5.2003 : Order of Director, Rural Development Department showing the date of regularisation of promotion of R/3 as UDC with effect from 18.6.1994.
(Annexure- H to the writ petition, page 26) (impugned) 20.5.2003 : Final seniority list of UDC and LDC issued by Director, Rural Development Department. In this seniority list, the date of appointment of R/3 as UDC was shown as 18.6.1994 and that of writ petitioner as 2.1.1995. The name of R/3 was shown as Sl. No. 4 and that of writ petitioner as Sl. No. 5.
(Annexure-J/1, page 30(32) to the writ petition) (impugned).
2. On perusal of the list of dates submitted by the contesting parties, it will be seen that as against the appointment of the petitioner as UDC on purely on ad hoc and temporary basis, the respondent No. 3 was appointed as LDC pursuant to a regular selection conducted as per the recruitment rules, i.e., the Arunachal Pradesh Secretariat Subordinate Service Rules, 1989. In fact, the official respondents in their counter affidavit have annexed the minutes of the meeting of the DPC held on 4.1.1991 to select the candidates for the post of LDC. Altogether 139 candidates were called for written test and type test out of which only 29 candidates appeared in the typing test and 27 candidates appeared in the written test held on 28.10.1990. Pursuant to such a selection conducted by the official respondents, the respondent No. 3 whose title at that time was "Jerang" and later on changed to "Perme" after marriage was placed at serial No. 5 in the select list. The merit list contained altogether 6 candidates for appointment as LDC.
3. Pursuant to such selection of the respondent No. 3, she was appointed as LDC after offering her appointment as such and passing the aforementioned order of appointment on 14.1.1991. The respondent No. 3 joined the post on 14.1.1991.
4. As against the aforesaid regular appointment of the respondent No. 3 as LDC, as per the own admission of the petitioner, she was appointed as UDC purely on ah hoc basis by order dated 4.1.1995. By the said order she was appointed for a period of three months. There is no dispute that she was appointed as such without any advertisement and selection and on pick and choose basis. On completion of initial period of three months as per the said order dated 4.1,1995, she was allowed to continue in her service with effect from 1.4.1995 until further order.
5. In fact, as has been revealed by the respondent No. 3 and the official respondents in their counter affidavits, the petitioner was initially appointed as UDC on ad hoc basis by an order dated 27.8.1993 for a period of three months. She was further appointed for another period of three months by an order, dated 7.3.1994. Once again she was appointed for a period of three months by an order, dated 21.6.1994. She was also appointed for a duration of four months by another order dated 7.9.1994. Eventually as reflected by the petitioner herself, she was appointed for a period of three months by order dated 4.1.1995 and on completion of the said period she was allowed to continue in her service with effect from 1.4.1995 until further order. There is no dispute that all these appointments made in favour of the petitioner were without any advertisement and selection and were purely on ad hoc basis, which needless to say, in the normal course are not counted for seniority.
6. By order dated 13.4.1995, the respondent No. 3 was temporarily permitted to officiate as UDC with effect from 18.6.1994. It will be pertinent to mention here that as per recruitment rules a minimum period of three years of service in the cadre of LDC is required to be completed which the respondent No. 3 did in January 1995 taking her appointment as LDC with effect from 14.1.1991.
7. After the aforesaid facts relating to the appointment and promotion of the petitioner and the respondent No. 3 as UDC, the dispute started relating to their seniority in the cadre of UDC amidst the publication of the different seniority list and consideration of their cases by DPC and Review DPC.
8. By an order, dated 18.6.2002, the ad hoc/officiating promotion of the petitioner and the respondent No. 3 along with four others from LDC to UDC were shown regularised. While the petitioner was shown regularized in the promotional post of UDC with effect from 21.1.1995, the respondent No. 3 was shown regularised in her promotional post of UDC with effect from 30.5.1997. This order apparently was wrong inasmuch as the petitioner was never promoted as UDC, but was directly recruited purely on ad hoc and temporary basis.
9. Being aggrieved by the aforesaid order, the petitioner made representation praying for regularising her promotion as UDC with effect from 18.6.1994, from which date she was granted officiating promotion by order dated 13.4.1995, as noticed above. After such representation made by the petitioner, another order was issued on 7.10.2002 regularising the promotion of the respondent No. 3 as UDC with effect from 15.2.1996 and the order was stated to be in partial modification of the aforementioned earlier order dated 18.6.2002.
10. After the aforesaid orders, the office memorandum dated 22.11.2002 was issued publishing the seniority list of the UDC/LDC/Assistant of the Rural Development. In this list also the petitioner was shown-senior to the respondent No. 3 by placing her at serial No. 4 while the respondent No. 3 was placed at serial No. 5. Their respective dates of appointment as UDC were shown as 2.1.1995 and 15.2.1996 respectively.
11. Being aggrieved by such fixation of seniority of the petitioner above the respondent No. 3, she made further representation. Thereafter, by the impugned order dated 9.5.2003 which was issued in partial modification of the earlier order dated 18.6.2002, the ad hoc/officiating promotion of the incumbents named in the order were regularised with effect from the dates shown in the order. The officiating promotion of the respondent No. 3 with effect from 18.6.94 was regularised from the. same date. Thereafter in the impugned final seniority list showing the dates of appointment of the respondent No. 3 and the petitioner as UDC with effect from 18.6.1994 and 2.1.1995 respectively, the respondent No. 3 was placed at serial No. 4 above the petitioner who was placed at serial No. 5. Thus, it will be seen that when the regularisation of the service of the petitioner was made effective from 2.1.1995, the officiating promotion of the respondent No. 3 as UDC was made effective from 18.6.1994 and it was on that basis the seniority between them was fixed.
THE STAND OF THE OFFICIAL RESPONDENTS
12. The official respondents in their counter affidavit have supported the impugned action towards regularisation of the officiating promotion of the respondent No. 3 with retrospective effect and fixation of her seniority on that basis above the petitioner. They have highlighted in their counter affidavit as to how the petitioner was appointed purely on ad hoc and temporary basis and regularisation of her service with effect from 2.1.1995. According to them the respondent No. 3 was promoted to officiate as UDC with effect from 18.6.1994. According to them the earlier orders regularizing the officiating promotion of the respondent No. 3 firstly with affect from 30.5.1997 and secondly with effect from 15.2.1996 was erroneous not based on actual fads.
13. On a further scrutiny of the matter by a duly constituted 4 members committee, it was found on the basis of the records with brief and review report that one vacant post of UDC was not counted which was lying vacant with effect from 1.12.1991 on promotion of one Shri Dongo Tara as Assistant. The said committee found that while considering the case of the respondent No. 3, the vacant post of UDC caused by promotion of Shri Dongo Tara as Assistant was not taken into account and accordingly on a" review of promotion of the respondent No. 3, she was regularized against such promotional post with effect from the date of' her officiating promotion, i.e., 18.6.1994. Consequent upon such review of the case of the respondent No. 3 along with some others including the petitioner, the impugned order dated 9.5.2003 in supersession of the earlier orders and the impugned seniority list dated 20.5.2003 were issued showing the respondent No. 3 as senior to the petitioner.
14. It appears that the representation made by the petitioner against the impugned orders has been rejected by Annexure-D order dated 27.5.2003 holding that the petitioner should not have any grievance since her service has been regularised from the date of her initial appointment to the post of UDC made on ad hoc basis on 2.1.1995.
15.I have heard Mr. C. Baruah, learned senior counsel for the petitioner assisted by Mr. R. K. Dutta, learned advocate. I have also heard Mr. P.K. Tiwari, learned counsel for the respondent No. 3 assisted by Mr. T. Pertin, learned advocate. Mr. B. Banerjee, learned State counsel, Arunachal Pradesh, argued on behalf of the official respondents.
16. Both the learned counsel for the petitioner and the respondent No. 3 in their elaborate arguments referring to the aforementioned facts leading to the filing of the instant writ petition, defended the retrospective regularisation of appointment and promotion. While the learned counsel for the petitioner submitted that the retrospective regularisation of the officiating promotion of the respondent No. 3 was illegal, learned counsel for the respondent No. 3 submitted that there was no question of regularisation of the service of the petitioner, who was admittedly appointed on ad hoc and temporary basis as UDC, with retrospective effect. Mr. B. Banerjee, learned State counsel supporting the action of the official respondents, submitted that there was nothing wrong in regularizing the officiating promotion of the respondent No. 3 from the date when she was given such officiating promotion. He submitted that in the normal course unlike the case of direct recruits, the officiating promotees are entitled to get their promotions regularized from the dates of their officiating promotions and to count their seniority on that basis.
17. Mr. Baruah, learned s enior counsel for the petitioner placed reliance on the following decisions :
(1) (Suraj Prakash Gupta v. State of J&K.) (2) (1992)Suppl. 1 SCC 272 (Keshav Chandra Joshi v. Union of India) (3) (1988) Suppl. SCC 225 (K. Siva Reddy v. State of Andhra Pradesh) (4) (Direct Recruitment Clause-II Engineering v. State of Maharashtra).
18. Mr. P.K. Tiwari, learned counsel for the respondent No. 3 placed reliance on the following decisions :
(1) (R. N. Nanjuduppa v. T. Thimmoiah) (2) (B.N. Nagarajan v. State of Karnataka) (3) (J & K Public Service Commission v. Dr. Narinder Mohan) (4) (Mahendra L. Jain v. Indore Development Authority) (5) (State of UP v. Ratiqurddin) (6) 2004 (3) GLT 517 (Bibekananda Das and Ors. v. State of Assam) (7) (State of West Bengal v. Aghorenath Dey) (8) (1995) Suppl. 1 SCC 572 (V. Srinivasa Reddy v. Government of Andhra Pradesh and Ors.) (9) (V.P. Srivastava v. State of M.P.)
19. The first case on which Mr. Baruah placed reliance is of Suraj Prakash Gupta (supra). This case was pressed into service to emphasise that the retrospective regularisation of promotion of the respondent No. 3 was not permissible in absence of any vacancy. That was a case relating to fixation of seniority between the direct recruits and promotees and break down of the quota rule. To emphasise that the petitioner is entitled to get benefit of direct recruit in preference to an ad hoc promotee appointed in excess of the quota, the petitioner will have to first establish his own case that she was regularly appointed as a direct recruit. The petitioner has failed on the both counts, i.e., he was appointed on regular basis as a direct recruit and that the respondent No. 3 was promoted in excess of the quota. Thus, this case is of no assistance to the case of the petitioner.
20. The case of Keshav Chandra Joshi (supra) on which the learned counsel for the petitioner placed reliance, instead of helping the case of the petitioner, helps the case of the respondent No. 3. In that case the Apex Court emphasised that the employee must become member of relevant service, for which his appointment must be according to the rules and within the prescribed quota. There is no dispute that the petitioner was appointed as direct recruit de hors the rules. But for the retrospective regularisation of his service by a DPC held in 2002, his entire ad hoc period of service from 1995 to 2002 was fortuitous and in the normal course was not countable towards fixation of seniority. In that case the Apex Court was concerned with the induction of the State Forest Service Officer to the IPS by way of appointment on promotion. Same is not the case in hand. The respondent No. 3 was given officiating promotion against a regular vacancy and, thus, upon regularisation of his service by the DPC, there was nothing wrong to count his seniority from the date when he was given officiating promotion.
21. In the case of K. Siva Reddy (supra), the Apex Court held that the promotees appointed in excess of the quota are not entitled to seniority with the direct recruits. There is nothing to show that the respondent No. 3 was promoted in excess of the quota. In any case, the petitioner whose appointment itself was illegal be de hors the recruitment rules, cannot place reliance on this decision to deny the seniority to the respondent No. 3 who was regularly recruited as LDC and thereafter given officiating promotion against a clear vacancy.
22. The case of Direct Recruitment Clause- II Engineering (supra) on which the learned counsel for the petitioner placed reliance also does not help the case of the petitioner. While Proposition-A laid down by the Apex Court in paragraph 47 of the judgment summing up the case goes against the case of the petitioner, the Proposition-B helps the case of the respondent No. 3.
23. The cases of R.N. Nanjuduppa, B.N. Nagarajan and J & K Public Service Commission (supra) were pressed into service by the learned counsel for the respondent No. 3 to bring home the argument that 'regularisation' does not connote permanence and cannot be made in violation of any rules framed under Article 309 and that regularisation cannot be said to be a mode of recruitment. In the case of J & K Public Service Commission, the Apex Court was involved with the issue, whether the ad hoc appointments of the respondents were valid and whether it was permissible to the Government to use its executive power to regularize such ad hoc appointments bypassing the PSC. Countering the direction given by the High Court to regularise the service of the respondents, the Apex Court observed in paragraph 10 of the judgment as follows.
"It is true that the ad hoc appointees have been continuing from 1986 onwards but their appointments are de hors the rules. Rules prescribed only two modes of recruitment, namely, direct recruitment or promotion by selection. As regards the lecturers are concerned, it is only by direct recruitment. The mode, of recruitment suggested by the High Court, namely, regularisation by placing the service records of the respondents before the PSC and consideration thereof and PSC's recommendation in that behalf is only a hybrid procedure not contemplated by the rules. Moreover, when the rules prescribed direct recruitment, every eligible candidate is entitled to be considered and recruitment by open advertisement which is one of the well accepted modes of recruitment. Inviting applications for recruitment to fill in notified vacancies is consistent with the right to apply for, by qualified and eligible persons and consideration of their claim to an office or post under the State is a guaranteed right given under the Articles 14 and 16 of the Constitution. The direction, therefore, issued by the Division Bench is in negation of Articles 14 and 16 and in violation of the statutory rules. The PSC cannot be directed to devise a third mode of selection, as directed by the High Court, not be mandated to disobey the constitution and the law."
24. The Apex Court in the case of Mahendra L. Jain (supra) considering the question as to whether the appellants could lay a valid claim for regularisation of their service answered the same in the negative. It was held that regularisation cannot be claimed as a matter of right. The illegal employment cannot be legalised by taking recourse to regularisation. The Apex Court emphasised that what can be regularised is an irregularity and not an illegality. It went on to observe that the constitutional scheme which the country has adopted does not contemplate any back door appointment.
25. In the instant case, there is no dispute that the petitioner was illegally appointed without following the recruitment rules. It is on this count this decision of the Apex Court was pressed into service so as to question the very regularisation of the appointment of the petitioner de hors the rules, not to speak of giving him seniority over the respondent No. 3. As against such illegal appointment of the petitioner and subsequent regularisation, the respondent No. 3 was regularly recruited as LDC and on earning the eligibility for promotion as UDC, was given officiating promotion. Subsequently the DPC constituted to consider regularisation of such officiating promotion regularised her service and on being shown that, in fact, a vacancy was in existence from 1991, her officiating promotion was regularised retrospectively from the date when she was given such officiating promotion.
26. In the normal course, an officiating promotion which is subsequently regularised takes its effect from the date of officiating promotion and thus there was no illegality in passing the impugned orders granting seniority to the respondent No. 3 from the date of her initial promotion of officiating basis.
27. The cases of Ratiqurddin and Bibekananda Das (supra) were relied upon to emphasise on the reasonable classification between irregular and illegal appointment as pointed out by the Apex Court in the aforesaid case of Mahendra L. Jain. The case of Aghorenath Dey was pressed into service to emphasise that the Proposition-A as laid down in Direct Recruitment Clause-II Engineering Officers case is applicable to the case of the petitioner while Proposition-B is applicable to the case of the respondent No. 3 about which discussions have been made above.
28. In the case of V. Sreenivas Reddy (supra), the Apex Court referring to the. aforesaid case of Direct Recruitment Clause-II Engineering Officers pointed out about the settled law that appointment in accordance with rules is a condition precedent to count seniority and that temporary or ad hoc or fortuitous appointments etc. are not appointments in accordance with the rules and the temporary service cannot be counted towards seniority. In this decision the earlier decision of the Apex Court in Keshav Ch. Joshi which has already been referred to above, was also placed reliance. Same view has been reiterated in the last case on which the learned counsel for the respondent No. 3 placed reliance, i.e., V.P. Srivastava (supra).
29. On the basis of the aforesaid decisions there is no escape from the proposition of law that ad hoc service rendered by an incumbent upon recruitment to the service de horse the rule cannot be counted towards seniority and that regularisation of such service cannot be a mode of recruitment. There is no gainsaying that the recruitment rules itself cannot be relaxed. In the instant case, the petitioner was regularised in her service as UDC by a DPC de hors the rule. The rules applicable . for such appointment is the Arunachal Pradesh Secretariat Subordinate Service Rules, 1989. As per rule 8 of the said Rules, 50 per cent of the posts shall be filled up by promotion on the basis of seniority-cum-merit from amongst the LDCs and remaining 50 per cent shall be filled up by direct recruitment on the basis of merit through a written examination followed by viva-vose as detailed in schedule 3 of the Rules.
30. Elaborate procedure has been laid down in the rules for preparation of select list upon consideration of the cases of the incumbents within the eligibility zone by a duly constituted DPC. There is no dispute that while regularising the service of the petitioner she was not subjected to any written examination and viva-vose test as envisaged under Rule 8 of the Rules. Her service was simply regularized by the DPC with retrospective effect de hors the recruitment rules. There is also no indication of dispensation or relaxation of the rules. There cannot be any implied dispensation or relaxation of rules also. In any case there cannot be any relaxation of recruitment rules itself.
31. In the above circumstances the recruitment of the petitioner as UDC de hors the rule could not have been regularised retrospectively with effect from 2.1.1995, i.e., the date of her appointment. Such a date has been taken from Annexure-A order dated 4.1.1995 by which the petitioner was appointed to officiate on ad hoc basis as UDC for a period of three months with effect from 2.1.1995 to 31.3.1995. In the order of appointment itself, it was made clear that her appointment would continue for the aforesaid period or till the post is filled up on regular basis which ever is earlier. Merely because her such service was continued beyond the stipulated period of three months from 1.4.1995 until further orders, the petitioner cannot claim for automatic regularisation with effect from 2.1.1995.
32. As noticed above, the DPC regularised the service of the petitioner de hors the procedure laid down in the recruitment rules. Being not content with the same, she has now made a challenge to the retrospective regularisation of the officiating promotion of the respondent No. 3 so as to earn seniority over her. As per the recruitment rules, the respondent No. 3 was eligible for promotion on completion of three years of service in January 1994. She was regularly appointed as LDC strictly in terms of the recruitment rules. As per the said rules, the promotion to the cadre of UDC is on the basis of seniority-cum-merit. Thus, unless she was declared unfit for promotion, she was otherwise entitled to get her promotion against available vacancy. On a scrutiny of the matter, it was found that a vacancy was available from 1991 to accommodate the respondent No. 3 and it was on that basis her officiating promotion was regularised with effect from the date of her officiating promotion. If that be so, there was nothing wrong in fixing the seniority of the respondent No. 3, above the petitioner.
33. In the normal circumstance, such ad hoc appointment de hors the rules followed by regularisation of services as has been done in the instant case in respect of the petitioner, will not confer the right of seniority to the incumbent from the initial date of joining the service. There is no manner of doubt that the period of service rendered by the petitioner from her initial ad hoc appointment to the date of regularisation in 2002 by order dated 18.6.2002 is fortuitous and cannot confer any right on her to get seniority for the said period. Further, in the normal circumstances regularisation of service is always perspective. However, since no other persons are before this Court challenging the retrospective regularisation of the service of the petitioner and fixation of her seniority on that basis, I refrain myself from disturbing that position. At the same time she cannot claim seniority on that basis over the respondent No. 3. So long as the seniority of the respondent No. 3 fixed by the official respondents is not disturbed, there shall be no occasion for the respondent No. 3 to challenge the very regularisation of the appointment of the petitioner with retrospective effect.
34. In the case of K.C. Joshi referred to above, the Apex Court held that the services rendered on ad hoc basis for 5 to 12 years cannot be taken into account for seniority. Countering the argument that the Rules should be deemed to have been relaxed by the Governor, it was held that such power could be exercised by the Governor in consultation with the PSC. In that case the Apex Court made the distinction between "rules of recruitment" and "conditions of service". It observed that to be a member of the service in a substantive capacity, it must be preceded by selection of a direct recruit. It was observed that "If the contention of the promotes that rules of recruitment are conditions of service is accepted, it would be open to the governor to say that "I like the face of "A" and Lam satisfy that he is fit to be appointed ; I dispense with the rules of recruitment and probation and appoint "A" straight away to the service in a substantive capacity as Assistant Conservator of Forests". It was held that the basic rules of recruitment, which is not condition of service, cannot be relaxed.
35. In the case of V. Sreenivasa Ready (supra), the Apex Court referring to the case of K.C. Joshi reiterated the views expressed by the Apex Court. It was noticed as to how the Governments resort to massive ad hoc appointments de hors the rules giving a go bye to make recruitment in accordance with the rules and then resort to regularisation of such appointments exercising the power under Article 320(3) proviso or Article 162 to make them the members of the service. The Apex Court observed that such practice not only violates the mandates of Articles 14 and 16 but also denies to all eligible candidates, their legitimate right to apply for and stand for selection and get selected.
36. In the case of Ratiqurddin and Ors. (supra) the Apex Court emphasised that the candidates belonging to competitive examination of earlier year selected illegally by lowering norms cannot claim seniority over candidates selected legally from competitive examinations held in subsequent year. This case was pressed into service to bring home the point of argument that the Group-B petitioners appointed illegally cannot score a march over the Group-A petitioners in so far as their inter-se seniority is concerned.
37. In the case of M.A. Hague and Ors. v. Union of India and Ors. reported in 1993 (3) SLJ (SO, the Apex Court held that the ad hoc doctors in the Railways regularised as per the orders passed by the Apex Court would not get seniority over the regularly appointed doctors. In the case of S.K. Sana v. Prem Prakash Agarwal, , the Apex Court reiterated that the period during which an employee was serving on ad hoc basis cannot be taken into consideration for fixing seniority. The Apex Court observed in paragraph 9 of the judgment as follows:
"This Court has repeatedly struck down and decried any attempt on the part of the appointing authority to give a notional seniority from a retrospective date, especially, when this process affects the seniority of those who have already entered into the service."
38. In the case of P. Ravindran v. Union Territory of Pandicherry , the Apex Court deprecated the Government for exercising the power under Article 320 of the Constitution taking of the post form the purview of the commission and to regularise services de hors the commission. In another case reported in the same volume, i.e., Ram Ganesh Tripathi v. State of U.P. at page 21, the Apex Court held that the Government could not have treated the respondents and other ad hoc employees whose services were regularised on 17.5.1985 as persons regularly appointed from an earlier date, nor could the Government have counted seniority from an earlier date either for promotion to higher post or for the purpose of giving selection grade.
39. The Apex Court in the case of Suraj Prakash Gupta (supra) noticing the recent trend of cases held that the recruitment rules cannot be relaxed. It emphasised on the need of requiring strict conformity with the recruitment rules for both direct recruits and promotees. The wholesale regularisation order by way of implied relaxation of the recruitment rules was held to be invalid. It was held that the power to relax the Rules cannot be treated as wide enough to include a power to relax rules of recruitment. Even for relaxation, the reasons are required to be recorded and even if such reasons are recorded, it was emphasised that the recruitment rules themselves cannot be treated to be producing hardship and bypassed on that ground.
40. In the case of Union of India v. Lalita S. Rao , the Apex Court held that the Medical Officers appointed by the Railway Administration on ad hoc basis were not entitled to count the pre-regularisation service towards seniority,
41. From the above discussions both on facts as well as on law in reference . to the aforesaid decisions of the Apex Court, the position which has emerged is that the petitioner was not entitled to count her seniority from the initial date of appointment. At best she was entitled to count her seniority from the date of issue of the order dated 18.6.2002 by which her service was regularised as per the recommendation of the DPC.
42. Consequent upon the aforesaid findings, I am of the considered opinion that no interference is called for to the impugned orders dated 9.5.2003 (Annexure-H) and dated 20.5.2003 (Annexure-J) by which the seniority of the respondent No. 3 has been fixed above the petitioner. Consequently, there is no merit in the writ petition and accordingly same stands dismissed leaving the parties to bear their own costs.
43. The writ petition stands dismissed.