Gauhati High Court
Pranab Kumar Baruah vs State Of Assam And Ors. on 24 May, 2006
Equivalent citations: 2007(2)GLT429
Author: Amitava Roy
Bench: Amitava Roy
JUDGMENT Amitava Roy, J.
1. The petitioner is aggrieved by the notional Fixation of date of his promotion to the post of District Transport Officer in the Transport Department in the State of Assam (hereafter referred to as the Department) thus inter alia rendering him junior to the Respondent No. 4 herein, denying the benefit of his officiating service in the said post with effect from 13.06.1989. The judgment and order dated 26.05.1999 passed by the learned Assam Administrative Tribunal, Guwahati, (hereinafter referred to as the Tribunal) in Case No. 29ATA/97 to the above effect is, therefore, the subject matter of challenge.
2. I have heard Mr. D.P. Chaliha, Sr. Advocate for the petitioner and Mr. P. Bora, learned State Counsel, Transport Department for the Official respondents. The notice of the proceeding though accepted to be served on the non-official Respondents except the respondent No. 5, no body had responded thereto.
3. An account of the facts is indispensable to appreciate the rival submissions. The petitioner, along with the private respondents, were inducted as Enforcement Inspectors in the Department by direct recruitment in the year 1970. In the select list dated 11.03.1970 prepared, there positions in order of merit therein were as follows:
1. ...
2. ...
3. ...
4. ...5. Shri Mohan Chandra Neog, Respondent No. 4
6. ...
7. ...8. Shri Mainul Hoque Laskar, Respondent No. 5
9. Shri Tarun Chandra Das, Respondent No. 6.
10. Shri Pranab Kumar Baruah, Petitioner
11. Shri Hemen Neogi, Respondent No. 7.
4. On their appointment, the recruits were directed to report on 06.04.1970 to the Principal, Police Training Centre, Dergaon, for undergoing training. Accordingly, the petitioner and many others joined the Training Centre on 06.04.1970 and their appointments were construed to have commenced on and from that date. Shri Tarun Chandra Das, Respondent No. 6, having reported for such training on 20.07.1970, his appointment was construed from that date. Later, on 14.02.1989, a provisional gradation list of the Enforcement Inspectors was published. It reflected the inter se position of the said direct recruits in the same order as in the select list with the exception that the name of Respondent No. 6, Shri Tarun Chandra Das was shown below the petitioner, though his date of appointment was shown as 06.04.1970 instead of 20.07.70, the date on which he had actually reported for training at the Police Training Centre, Dergaon. At that stage in the gradation list, the petitioner and the private respondents were placed as herein below:
SI. No. Name of Officer Date of Appointment 1. Shri Pankaj Kumar Phukan 06.04.1970 2. Shri Mahim Chnadra Neog 06.04.1970 3. Shri Mainul Haque Laskar, Respondent No. 5 06.04.1970 4. Shri Pranab Kumar Baruah, Petitioner 06.04.1970 5. Shri Tarun Chandra Das 06.04.1970 6. Shri Hemen Neogi, Respondent No. 7 06.04.1970
5. On a representation submitted by the Respondent No. 4, his date of birth mentioned to be 02.04.1940 in the said provisional list was corrected to be 02.04.1948. The said provisional list, however, was not finalized.
6. Incidentally in CR 2186/90 filed by the Respondent No. 7, Shri Hemen Neogi, this Court, by judgment and order dated 07.05.1996 and affirmed by the Division Bench by its order dated 03.07.1996 in WA 50/96- while noticing that the Respondent No. 6, Shri Tarun Chandra Das was permitted by the Departmental Authority to take the training in the session commencing from July, 1970, and not from April 1970 along with the other batch mates-observed that his delayed joining would not affect his seniority vis-a-vis the other direct recruits of the same batch as Enforcement Inspectors.
7. In the meantime, the Assam Transport Service Rules, 1983, (hereafter referred to as the Rules) had come into effect from 29.05.1984. Thereafter on 27.02.1989 a selection was held to fill up three vacancies in the post of District Transport Officer (hereiafter referred to as DTO). Under Rule 6(2) of the Rules, 33 1/3% of the cadre strength of DTO was to be filled up by direct recruitment and the balance i.e., 66 2/3%, by promotion from the cadres of Motor Vehicle Inspectors and Enforcement Inspectors with a minimum period of eight years of service as on the first day of the year of promotion. Under Rule 16, the criteria for such promotion was merit cum seniority. In terms of Rule 6(c) of the Rules, first slot in a promotional vacancy was to be filled up from the cadre of Enforcement Inspector, the second from Motor Vehicle Inspector and the third by direct recruitment. In the selection of 27.02.1989, the committee considered the candidature of Shri Pankaj Kumar Phukan, Shri Mohim Chandra Neog, Respondent No. 4, Shri Moinul Haque Laskar, Respondent No. 5 and Shri Pranab Kumar Baruah, petitioner, i.e., the first four Enforcement Inspectors in the provisional gradation list dated 14.02.1989. While recommending Shri Pankaj Kumar Phukan, seniormost Enforcement Inspector for the first vacancy as per the roster and Shri Harendra Nath Dutta, followed by Shri Hirak Ranjan Das for the second vacancy (from Motor Vehicle Inspectors), the committee recommended the name of the petitioner to fill up the vacancy identified for direct recruitment in the exigencies of the service. In selecting the petitioner, the committee extended weightage to his candidature on the basis of his performance at the training with the Police Training College, Dergaon. These recommendations were approved by the State Government and were thereafter forwarded to the Assam Public Service Commission (hereafter referred to as the Commission) for approval on 03.05.1989. The Commission while recording its approval vis-a-vis the recommendations for promotion of Shri Pankaj Kumar Phukan and Shri Harendra Nath Dutta declined to accept the recommendation for promotion of the petitioner. On this, by notification dated 13.06.1989, the petitioner was posted at Dhubri to hold charge of the Office of the District Transport Officer and Secretary, Regional Transport Authority, Dhubri. The petitioner accordingly took over charge of the said office.
8. Being aggrieved, the respondent No. 4 represented before the Government against the recommendations of the Selection Committee in favour of the petitioner in preference to him. As his representation did not meet with any response, the respondent No. 4 approached the Tribunal with 74/ATA/89 which was disposed of on 24.06.1989 directing the State Government to take a decision on his (respondent No. 4) representation within the time frame fixed by it. It was thereafter that the Government in the Transport Department by order dated 08.09.1989 rejected his representation. Being still aggrieved, the respondent No. 4 approached the Tribunal with Appeal Case No. 108 ATA/89 impugning inter alia the recommendation dated 27.02.1989 in favour of the petitioner by ignoring his superior claim and his seniority in service. The learned Tribunal, after hearing the parties, by the judgment and order dated 21.02.1990 set aside the recommendation dated 27.02.1989 so far as it concerned the petitioner and consequentially terminated the in-charge arrangement effected by the notification dated 13.06.1989. This time the petitioner carried the matter to this Court with CR 379/90. By order dated 02.03.1990, this Court while declining to injunct the decision of the Tribunal, left the Government at liberty to make a stop gap arrangement by posting a suitable officer at Dhubri to manage the Office of the District Transport Officer on temporary basis. In doing so, this Court directed the Government to take into consideration the cases of the petitioner as well as the respondent No. 4. Subsequent thereto by notification No. TMV. 355/89/264 dated 27.03.1990, the petitioner was allowed to hold charge of the Office of the DTO and Secretary, Regional Transport Authority, Dhubri, temporarily. The notification reveals that this was pursuant to the order dated 02.03.1990 of this Court passed in CR 379/1990 and in continuation of the earlier notification dated 13.06.1989 (wrongly referred to as 13.07.1989). By another notification No. TMV. 355.89.264-A of the same date, the respondent No. 4 was transferred and posted to hold post of Principal, Driver's and Conductor's Training School, Guwahati, until further orders.
9. The respondent No. 4, being dissatisfied did not join the post of Principal, Driver's and Conductor's School and instead filed a Contempt Petition before this Court. It being clarified in course of the contempt proceedings that the post of the Principal, Driver's and Conductor's Training, Guwahati, is equivalent to that of DTO and that no final gradation list of the DTO involving the petitioner and the respondent No. 4 had been issued, the Contempt Case was closed on 27.05.1994. In the meantime, the Government by notification No. TMV 135/90/61 dated 01.09.1990 having permitted the respondent No. 4 to officiate temporarily as DTO and Secretary, Morigaon, as a stop gap arrangement, he took over charge of the said post on 15.10.1990.
10. Thereafter another selection was held on 12.11.1990 for promotion to the eight posts of DTOs in the Department. Out of the total vacancies to be filled up, four were identified for Enforcement Inspectors. The Selection Committee recommended the names of eight Enforcement Inspectors naming the respondent No. 4, respondent No. 5, the petitioner, respondent No. 6 and respondent No. 7 as the first five in that order. Incidentally, the respondent No. 7 belongs to the Scheduled Caste. Though the names of the recommended candidates were arranged in the same manner as in the Provisional Gradation list dated 14.06.1989 the minutes of the Selection Committee meeting did not disclose that those were in order of merit or preference. The Government, however, on according approval to the said recommendations forwarded the same to the Commission which eventually extended its approval thereto on 31.08.1996. No follow up action was however taken on the said select list by the Government.
11. Another selection was held on 16.11.1992 for filling up one post of DTO from the cadre of Enforcement Inspector and the Selection Committee considered the candidature of Shri Siben Hazarika, Shri Pratul Baruah, Shri S.W. Ahmed, Shri Baikuntha Das and recommended Shri Siben Hazarika and Shri Pratul Baruah in that order. The Government having accepted the recommendations forwarded it to the Commission for approval. Pending the affirmation of the Commission, Shri Siben Hazarika was promoted as DTO under Regulation 4(d) of the Assam Public Service Commission (Limitation and Functions) Regulations, 1951,on 26.05.1993. Similarly, Shri Pratul Baruah was also sanctioned adhoc promotion to the post of DTO by communication dated 25.04.1994. The Commission accorded its approval on 06.05.1996. By notification dated 12.05.1997, the adhoc promotion of Shri Siben Hazarika was regularized w.e.f. 28.05.1993. By a separate notification dated 12.05.1997, the adhoc promotion of Shri Pratul Baruah was also regularized w.e.f the date of his taking over charge as the DTO.
12. To complete the facts on this aspect, it is observable that by notification dated 16.11.1990, Shri Moinul Haque Laskar, respondent No. 5 and Shri Tarun Chandra Das, respondent No. 6 were also allowed to officiate temporarily as the DTO and Secretary, Regional Transport Authority, North Lakhimpur and Diphu respectively. This notification dated 16.11.1990 was, however, challenged by Shri Hemen Neogi before this Court in CR 2186/90 and on stay being granted to the officiating arrangement vis-avis respondent No. 6, the Government by notification dated 18.06.1991 allowed Shri Hemen Neogi, respondent No. 7 to officiate temporarily as DTO and Secretary, Regional Transport Authority, Mangaldoi.
13. While the matter rested at that, this Court by order dated 07.05.1996 dismissed CR 2186/1990 filed by Shri Hemen Neogi, respondent No. 7. The verdict was upheld by a Division Bench of this Court in WA 250/96 and following the same, by notification dated 02.04.1997, Shri Tarun Chandra Das, respondent No. 6, was promoted to the post of DTO w.e.f. 21.06.1991. At or about the same time, this Court by order dated 13.08.1996 dismissed CR 317/1990 filed by the petitioner challenging the Tribunal's order dated 21.02.1990 setting aside the recommendations dated 27.02.1989 of the Selection Committee and the notification dated 13.06.1989 allowing the petitioner to hold charge of the office of the DTO. In other words, the judgment and order dated 21.02.1990 of the Tribunal in Appeal Case No. 108 ATA/89 remained intact.
14. In the meantime, the department by its notification dated 02.06.1994 had circulated a provisional gradation list of the DTOs as on 01.05.1994 therein inter alia the petitioner and the respondent No. 4 were placed at Sl. No. 12 and 15 respectively. Whereas the date of promotion to the said post vis-a-vis the petitioner was shown to be 16.06.1999, it was mentioned to be 15.10.1990 for the respondent No. 4. Clearly the said dates referred to those of in-charge/officiating arrangements referred to earlier. It is in this background of facts that the respondent No. 4 approached the Tribunal with Appeal Case No. 29 ATA/97 assailing the notification dated 27.03.1990 allowing the petitioner to hold full charge of the Office of the DTO and RTA, Dhubri, in continuation of the earlier notification dated 13.06.1989 to the said effect, the provisional gradation list dated 02.06.1994 with a prayer to restore his seniority in service by placing him above the petitioner and to provide him with promotion in the above post of DTO with retrospective effect. The learned Tribunal being of the view that to resolve the controversy raised, the exercise was to be initiated from the stage of fixation of inter se seniority of the Enforcement Inspectors, ordered impleadment of other concerned Enforcement Inspectors as well. Finally, after hearing the parties including Enforcement Inspectors, who had joined the proceedings, the learned Tribunal by the impugned judginent and order set aside the notification dated 27.03.1990 and the provisional gradation list dated 02.06.1994. Working on the inter se seniority fixed by it in tenns of the Government Circular No. ABP. 51/63/1 dated 05.02.1964, it worked out also the dates of promotion of the petitioner and the respondent No. 4 to the post of DTO as 21.06.1991 and 28.05.1993 respectively.
15. To better comprehend the conclusions of the learned Tribunal, it would be expedient to narrate the process relating thereto. While dealing with the issue of the notification dated 27.03.1990, the learned Tribunal noticed that at the time of induction of the petitioner and the private respondents in the service as Enforcement Inspectors, the Rules were not in existence and the seniority of the incumbents in Government service was determined in terms of para 10.3 of the Government Circular dated 05.02.1964 referred to above. In accordance therewith, the seniority of candidates selected in one batch was to be fixed according to the merit list prepared by the appointing authority/employment exchange at the time of initial appointment if they joined their posts within fifteen days or within any extended period sanctioned by the authority concerned. The learned Tribunal, taking note of the fact that the Enforcement Inspectors including the petitioner, respondent No. 4 and respondent No. 6 (Shri Tarun Chandra Das) having been selected by direct recruitment were deputed for training at the Police Training Centre, Dergaon, and the respondent No. 6 (Shri Tarun Chandra Das) having been permitted to join the training on 20.07.1970, his inter se seniority was essentially to be fixed following the order in which his name was placed in the select list in terms of the aforementioned Government circular. Having held so, the learned Tribunal, following the order in which the names were placed in the merit list dated 11.03.1970 of the Enforcement Inspectors, allotted the slot No. 4 to the said respondent above the petitioner. In other words, the petitioner who had been placed at Sl. No. 4 in the provisional gradation list dated 14.02.1989 was thereby relegated by one step and was placed at Sl. No. 5. The learned Tribunal, having regard to its order dated 21.02.1990 passed in Appeal Case No. 108 ATA/89, order dated 02.03.1990 of this Court in CR 3 79/1990 refusing to grant stay of the Tribunals decision and ultimate dismissal of the writ petition on 13.08.1996, returned a finding that in view of the verdict of the Tribunal as above, the notification dated 27.03.1990 was unsustainable in law.
16. The learned Tribunal was of the opinion that as a gradation list logically has to include only the names of officers or incumbents holding the post(s) in question on regular basis whether by direct recruitment or by promotion, the provisional gradation list dated 02.06.1994 on that count alone was liable to be set aside. It ordered accordingly.
17. Apropos, the selections, the learned Tribunal recorded vis-a-vis the one of 27.02.1989 that the Commission had rejected the recommendations vis-a-vis the petitioner against the vacancy earmarked for direct recruits. Moreover, in view of wrong fixation of seniority of Shri Tarun Chandra Das, respondent No. 6, he was left out of consideration and instead, the petitioner at Sl. No. 4 in the provisional gradation list dated 14.02.1989 was considered and recommended. Referring to FR 49 of the Fundamental and Subsidiary Rules it held that for want of approval of the Finance Department as well, the petitioner was not entitled to any benefit of officiating/in-charge services. Moreover, according to it, the action of hand picking, the petitioner for holding the charge of the Office of the DTO by overlooking the other Senior Enforcement Inspectors assessed to be superior in merit at the time of direct recruitment, was illegal. It, therefore, determined, taking into account the above factors, that the notification dated 13.06.1989 having been rendered nonest by the judgment and order dated 21.02.1990 in Appeal Case No. 108 ATA/89 that the notification dated 27.03.1990 for the above illegality was unsustainable. The learned Tribunal, however, while noticing that the respondent No. 4 had joined as DTO, Morigaon, on officiating basis w.e.f 13.10.1990 held that he along with the petitioner, Mainul Haque (respondent No. 5) and Tarun Chandra Das (respondent No. 6) ought to be deemed to have allowed to hold full charge of the DTO w.e.f. 27.03.1990.
18. With regard to the selections held on 12.11.1990 and 16.11.1992, the learned Tribunal opined that the Selection Committee besides acting on the provisional gradation list dated 14.08.1989 (with Shri Tarun Chandra Das, respondent No. 6 below the petitioner) did not indicate the basis of the order in which the recommended candidates were placed for promotion though in view of the prescription of the Rules, merit cum seniority was to be the basis thereof. It also found fault with the respondent authorities in initiating the fresh exercise for promotion culminating in the Selection Committee meeting on 16.11.1992 without first finalizing the process founded on the recommendations of the Selection Committee meeting of 12.11.1990. The approval of the Commission to the recommendations in both the meetings also met with the disapproval by the Tribunal more particularly in absence of any indication of the criteria adopted therefor.
19. The above notwithstanding, the learned Tribunal approved the recommendations of the Selection Committee recorded by it in its meeting dated 12.11.1990 only by interchanging the position of the petitioner and the respondent No. 6 thereby acting on the inter se seniority of the Enforcement Inspectors fixed by it, Shri Tarun Chandra Das, respondent No. 6 was thus placed at Sl. No. 3 in the list of the recommended candidates demoting the petitioner to SI. No. 4. Thereafter taking note of the provision of the Assam Scheduled Caste and Scheduled Tribes (Reservation of Vacancies) Act, 1978 (hereafter referred to as the Reservation Act) and the Assam Scheduled Caste and Scheduled Tribes (Reservation of Vacancies in Service and Posts) Rules, 1983 (hereafter referred to as Reservation Rules) it held that Shri Hemen Neogi, respondent No. 7 at Sl. No. 5 was entitled to be accommodated against one of the four vacancies for which the selection had been held. The learned Tribunal on the said basis earmarked the remaining three vacancies for the first three in the select list i.e., the respondent No. 4, the respondent No. 5 and the respondent No. 6. Acting on the said basis and noticing that in the meantime Shri Tarun Chandra Das had been provided with regular promotion w.e.f. 21.06.1991, the other Officers namely the respondent No. 4, respondent No. 5 and respondent No. 6 were held to be entitled to be promoted on regular basis also w.e.f. said date i.e., 21.06.1991. By adopting the same measure, the learned Tribunal considering the petitioner to be the next senior most Enforcement Inspector, held that he was entitled to the benefit of promotion to the post of DTO w.e.f 28.05.1993 i.e., the date on and from which his junior Shri Siben Hazarika (selectee No. 1 in 16.11.1992 recommendations) had been extended the said benefit. On the same consideration, the learned Tribunal was of the view that the petitioner deserved to be placed above Shri Siben Hazarika in seniority as well. In conclusion, therefore, the respondent Nos. 4, 5, 6 and 7 were directed to be promoted to the post of DTO w.e.f. 21.06.1991 and the petitioner and Shri Siben Hazarika w.e.f. 28.05.1993.The promotion of Shri Pratul Baruah w.e.f. 31.05.1994 was left untouched. By the said determination, the petitioner was placed below Shri Pankaj Kumar Phukan (promoted on the basis of the recommendations of 27.02.1989) and respondent Nos. 4,5,6 and 7 but above Shri Siben Hazarika. The petitioner is aggrieved by the fixation of such notional date of his promotion to the post of DTO though he had been recommended for promotions on 27.02.1989 and 12.11.1990 and had been holding the charge of the post of DTO since after the notification dated 13.06.1989. Logically the petitioner is also aggrieved by the consequential loss of seniority in the post of DTO.
20. Mr. Chaliha has argued that the petitioner having been allowed to hold charge of the post of DTO on the basis of his selection and recommendations therefor by the Selection Committee on 27.02.1989 in accordance with the Rules, he is entitled in law to be promoted to the said post on regular basis w.e.f the date he has held the charge of the said office and, therefore, the determinations to the contrary made by the learned Tribunal are illegal and nonest in law. According to him, the respondent No. 4 having raised a limited issue before the learned Tribunal pertaining to his promotion and seniority vis-a-vis the petitioner, it strayed beyond the controversy and the impugned decision having upset the settled state of affairs without any legally tenable basis, the impugned judgment and order is liable to be interfered with. As admittedly the petitioner is discharging his duties in the Office of the DTO following the issuance of the notification dated 13.06.1989, he is entitled to be promoted to the said post on regular basis w.e.f. the date he is in-charge thereof together with consequential seniority and other benefits in service, he urged. The petitioner having been duly recommended for promotion in accordance with the Rules, the service rendered by him on in-charge basis cannot be ignored for the purpose of seniority. He criticized the dates fixed by the learned Tribunal for promotion of the petitioner and respondent No. 4 as imaginary rendering the conclusions relating thereto perverse. There exists no basis to antedate promotion of respondent No. 4 compared to the petitioner, the learned Counsel contended. Mr. Chaliha to reinforce his arguments placed reliance on the decision of Apex Court in Direct Recruit Class-II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors. and State of West Bengal and Ors. v. Aghore Nath Dey and Ors. (1993) 2 SCC 371.
21. Per contra, the learned Standing Counsel for the department referring to the provisions of the Rules concerning promotion argued that in absence of any provision for in-charge arrangement, the services of the petitioner in that capacity cannot be permissibly reckoned for computing his seniority in service. According to him, seniority of the petitioner and other candidates promoted to the post of DTO has to be counted from the date of approval of the Commission.
22. I have extended my thoughtful consideration to the dissenting arguments. Admittedly at the time of induction of the petitioner and the private respondents in service as Enforcement Inspectors, the Rules were not in force. In the select list dated 11.03.1970, the candidates were placed serially in order of merit. The petitioner evidently was at Sl. No. 10 and the respondent No. 6 above him. In absence of the Rules, the administrative guidelines for fixation of seniority in service were applicable in terms of the Government Circular dated 05.02.1964, and thus, the inter se seniority of direct recruits was to be fixed following the order in which their names appeared in the select list on merit. In that view of the matter, placement of the respondent No. 6 above the petitioner in the provisional gradation list dated 14.08.1989 caused by the learned Tribunal cannot be faulted with. Moreover, in view of the decision of this Court in CR 2186/90 observing that the said respondent having been permitted by the concerned respondent authority to undergo training in the session commencing from July 1970, the re-fixation of seniority by the learned Tribunal as above appears to be valid.
23. That the recommendation of the petitioner by the Selection Committee in its meeting held on 27.02.1989 had not been approved by the Commission is also not in doubt. The judgment and order dated 21.02.1990 passed by the learned Tribunal in Appeal Case No. 108 ATA/89 setting aside the recommendation of the petitioner for promotion to the post of DTO by the Selection Committee on 27.02.1989 as well as the notification dated 13.06.1989 having attained finality in view of the dismissal of CR 370/1990, his claim on the basis of the said selection and in-charge arrangement consequent to the said notification, in my view, is untenable.
24. The question, however, remains as to whether the services of the petitioner on the in-charge arrangement can be ignored altogether. The learned Tribunal as noticed herein above has held that the petitioner, respondent Nos. 4, 5 and 6 are deemed to have been officiating in the post of DTO w.e.f. 27.03.1990. Having regard to the fact that the notification dated 27.03.1990 had been issued penriitting continuance of the petitioner in the post of DTO on in-charge basis even after the cancellation of the recommendations dated 27.02.1989 and the notification dated 13.06.1989, on administrative exigencies, I am of the opinion that the petitioner cannot be denied the benefit of his services in the said capacity w.e.f. that date i.e., 27.03.1990. At all relevant times, the petitioner was eligible under the Rules to be considered for promotion and any lapse on the part of the respondent authorities in the matter of taking concurrence of the finance department as required under the FR 49 cannot be permitted to work against him for no fault of his.
25. The Apex Court in the Direct Recruitment Class-II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors. (supra) while dwelling on the claim of seniority of the holder of a post not appointed strictly in accordance with the Rules but continuing for long held that once an incumbent is appointed to a post according to Rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. As a corollary of the above proposition, it was observed that where the initial appointment was only adhoc and not according to the Rules and made as a stop gap arrangement, the officiation in a post cannot be taken into account for computing the seniority. The Apex Court, however, was of the view that if the initial appointment was not made by following the procedure laid down by the Rules but the appointee continued in the post uninterruptedly till the regularization of his service in accordance with the Rules, the period of officiating service would be counted.
26. In State of West Bengal and Ors. v. Aghore Nath Dey and Ors. (supra), the Apex Court, while reiterating the above, clarified that if the initial appointment is made against an existing vacancy not limited to a fixed period of time or purpose but there is deficiency in the procedural requirements prescribed by the Rules which is cured at the time of regularization, the appointee being eligible and qualified in every manner for a regular appointment on the date of his initial appointment and is continuing in the post uninterrupted till regularization of his service in accordance with the Rules, he would then be entitled to the benefit of the serving period for his seniority.
27. This Court subscribing to the view expressed herein above held in A.T. Gayakwad v. Union of India and Ors. 2003 (3) GLT10, that the petitioner therein who was promoted on adhoc basis on the recommendation of DPC was entitled to seniority from the date of adhoc promotion, he having been subsequently promoted on regular basis on the very same recommendation.
28. In view of the above state of law and the attendant facts, it is held that the petitioner would be entitled to the benefit of his services rendered under the in-charge arrangement from 27.03.1990 for the purpose of seniority following his regular promotion to the said post. To ignore it would be to deny the obvious.
29. The approach of the learned Tribunal vis-a-vis the promotion of the petitioner and the other respondents to the post of DTO acting on the recommendations of the Selection Committee meeting held on 12.11.1990 as modified by it, however, suffers from apparent errors. The records reveal that the Selection Committee in recommending the candidates in its meeting held on 12.11.1990 and 16.11.1992 did not indicate the basis on which the candidates had been selected. This assumes importance in view of the mandate of Rule 16 where under in Clause (4) thereof, the criteria for promotion to the post of DTO from Motor Vehicle Inspector and Enforcement Inspectors is merit cum seniority. Incidentally, the said provision of the Rules does not delineate any zone of eligibility of the candidates to be so considered. While approving the inter se seniority of the relevant candidates in the rank of Enforcement Inspectors, as ordered by the learned Tribunal, its decision to act on the recommendation dated 12.11.1990 of the Selection Committee by inter changing the position of the petitioner and respondent No. 6 on the basis of the altered seniority cannot be sustained same being not in accord with the Rules. The prescribed yardstick for promotion being merit cum seniority, the learned Tribunal could not have proceeded on the basis that alteration of the seniority of these two candidates would be reflective of corresponding variation in merit as well. In other words, assuming that the committee being aware of the bench mark for promotion had accordingly placed the petitioner above the respondent No. 6 in order of merit, the recommendations to the said effect are in consonance with the Rules. If to the contrary, the recommendations have been made on the basis of seniority cum merit, the same arc patently illegal. In absence of any indication of the norms applied by the Selection Committee for making its recommendations, the same are not acceptable to be acted upon. No promotion on the basis thereof merely by altering the inter se position of the recommended candidates founded exclusively on seniority would be approvable under the Rules. Thus even if the respondent No. 6 was correctly placed above the petitioner in seniority in the post of Enforcement Inspectors, having regard to the prescribed criteria for promotion and in absence of any indication on records that respondent No. 6 was superior in merit compared to the petitioner, in my considered opinion, preference to him (Respondent No. 6) for promotion qua the petitioner cannot be sustained in law. In that view of the matter, the decision of the learned Tribunal to act on the recommendations dated 12.11.1990 as modified by it by interchanging the position of the petitioner and the respondent No. 6 and to order promotion of the said respondent in preference to the petitioner cannot be upheld. Consequently the exercise made by it for fixing the dates of promotion of the petitioner and the other respondents based on the recommendations of Selection Committee held on 12.11.1990 and 16.11.1992 also does not commend for acceptance. Noticeably the learned Tribunal did not and rightly so make any endeavour to evaluate the comparative merit of the candidates for promotion to the post of DTO, it being the primary duty of the Selection Committee under the Rules. In the above premise, the drill made by the learned Tribunal for identifying the candidates for promotion to the post of DTO as on 12.11.1990 and 16.11.1992 and fixing their dates of promotion and consequential seniority is subversive of the provisions of the rules and if allowed to stand would result in abuse of the process of Court. The impugned judgment and order, to the extent it pertains to the promotion of the petitioner and the private respondents, fixation of their dates of promotion and computation of seniority on the basis thereof is set aside being unsustainable in law and on facts.
30. This petition is, therefore, allowed to the extent indicated hereinabove. The issue with regard to the promotion to and seniority in the post of DTO against the vacancies as on 12.11.1990 and 16.11.1992 is remitted to the Commissioner and Secretary, Government of Assam, Transport Department, to be addressed to strictly in accordance with the Rules. The determination of inter se seniority by the learned Tribunal of the candidates in the rank of Enforcement Inspectors is hereby affirmed. Needless to say, while effecting promotion the provisions of the Reservation Act and the Reservation Rules would be duly enforced. The seniority of the promottees would be fixed in terms of the Rules as well. The petitioner in the event of his promotion to the post of DTO on regular basis would be entitled to the permissible service benefits including seniority for the services rendered by him in the said post on incharge arrangement w.e.f. 27.03.1990. The respondent authorities would redo the selection for promotion to the post of DTO as on above dates in terms of the Rules. This direction is called for as it is submitted at the Bar that inspite of the earlier selections as well as the decision of the learned Tribunal, no tangible step has been taken by the respondent authorities in this regard. As the controversy is lingering for long, it is expected that the respondent authorities would provide an early quietus thereto acting in terms of the directions issued.
31. The petition stands disposed in the above terms. No costs.