S.Sumnyan & Ors vs Limi Niri & Ors

S. SUMNYAN & ORS. ... Appellants

Versus

LIMI NIRI & ORS. .... Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. The present appeal is directed against the judgment and order dated

19.02.2009 passed by the Division Bench of the Gauhati High Court,

whereby the High Court affirmed the judgment and order of the learned

Single Judge allowing the writ petition filed by the private respondent No.

1 herein and holding that necessary correction be made in the seniority

list of the Civil Engineers and recast the same by accepting the date of

appointment of the respondent No. 1 as on 02.05.1989 and those of the

appellants herein from their respective dates of regularization and that the

ad-hoc period of service rendered by them as Assistant Engineers would not be counted towards their seniority in the rank of Assistant Engineer.

3. The appellants herein are aggrieved by the aforesaid directions issued by

the learned Single Judge which were subsequently affirmed by the

Division Bench of the High Court, since by the aforesaid direction they are

losing the benefit of service period of about two years rendered by them as

Assistant Engineers on ad-hoc basis for the purpose of counting their

seniority in the rank of Assistant Engineer.

4. The appellants herein were appointed on temporary and ad-hoc basis as

Assistant Engineers [Civil] by the Government of Arunachal Pradesh in the

Public Works Department on various dates between the years 1986 and

1988 on the condition that they would be regularized according to the

Rules on the recommendation of a Selection Board constituted by the

Government. The State of Arunachal Pradesh came to be constituted as a

separate State of the Republic of India on 20.02.1987. Consequent to such

constitution, Arunachal Pradesh Public Service Commission was also

constituted under Gazette notification dated 29.03.1988.

5. The respondent No. 1 - Limi Niri herein was also appointed on ad-hoc

basis in the year 1988 to the post of the Assistant Engineer with a specific

condition that he would be regularized according to the relevant Rules on

the recommendation of the Arunachal Pradesh Public Service

Commission. Sometime in the month of May, 1988, an advertisement was issued inviting applications for filling up the posts of the Assistant

Engineers [Civil] and the Assistant Engineers [Electrical] in the Public

Works Department of the Government of Arunachal Pradesh. The

respondent No. 1 submitted his application pursuant to the aforesaid

advertisement. He was found suitable for such appointment as Assistant

Engineer [Civil] and consequently he was issued an appointment letter

dated 19.04.1989 for his appointment with a condition that he shall be on

the post on probation for a period of two years and that his appointment

shall not commence before 02.05.1989.

6. A provisional seniority list as on 31.08.1990 of Assistant

Engineers [Civil] in the Arunachal Pradesh Public Works Department

was issued and the appellants herein were shown as seniors to the

respondent no. 1. In the year 1993, some of the appellants were

promoted as Executive Engineers on ad-hoc basis and a provisional

seniority list of Executive Engineers in the Arunachal Pradesh Public

Works Department was circulated and the names of some of the

appellants were shown in the said list of the Executive Engineers. In

the year 1997, a further seniority list as on 31.03.1997 of the

Assistant Engineers [Civil], which showed the position of various

appellants as senior to the respondent no. 1, was circulated for

claims and objections. Some of the appellants were thereafter

promoted to the posts of the Executive Engineer and the Superintending Engineer and confirmed in the said posts and at

least one of them is now occupying the post of the Chief Engineer.

7. The authorities after promoting the appellants to the posts of

Executive Engineers in between the period from 1991 to 2001

regularized the ad-hoc promotions in the post of the Executive

Engineer by an order dated 15.02.2001. A final seniority list of the

Superintending Engineers and the Executive Engineers as on

29.08.2001 was published. Regularization of some of the appellants

by order dated 15.02.2001 and final seniority list [as on 29.08.2001]

of Superintending Engineers [Civil] and Executive Engineers

circulated on 31.08.2001 were never put in challenge by anyone.

8. In the year 2001, the respondent no. 1 herein filed the

aforesaid writ petition against the seniority position ascribed and

shown in the seniority list dated 15.03.1999 and sought for a

direction that he is senior to the appellants herein as he was

regularly selected in 1989 by the Arunachal Pradesh Public Service

Commission. The appellants and the State Government filed their

counter affidavit in the said writ petition contending, inter alia, that

the appellants were appointed prior to the constitution of the

Arunachal Pradesh Public Service Commission on 29.03.1988. The

appointment of Group-B post in the Public Works Department of

Arunachal Pradesh was guided by the Arunachal Pradesh Administration [Public Works Department] Group-B Post

Recruitment Rules, 1983 and the appointment of the appellants was

made as per the said Recruitment Rules in the absence of the

Arunachal Pradesh Public Service Commission at the relevant time.

Their services also were regularized in terms of the said Rules which

provided that a minimum service period of two years, known as

period of probation, was necessary for rendering service in the

capacity of Assistant Engineer for all appointments made by

Government to these posts since 1980. The services of the appellants

were regularized as stated hereinabove giving them the benefit of

service from the actual date of their joining the service.

9. Before the constitution of the Arunachal Pradesh Public

Service Commission such regularizations were given by convening

meetings of the Departmental Promotion Committee. However, by the

time the cases of the appellants could be taken up for consideration

for regularization of their services on completion of two years period

of probation, the Arunachal Pradesh Public Service Commission

came to be constituted and therefore the cases for regularization of

the services of the appellants were considered by the Arunachal

Pradesh Public Service Commission, which recommended the

regularization of the services of the appellants from the date of their

initial appointment. It was also pointed out that not giving retrospective effect to regularization of the services of the appellants

by Arunachal Pradesh Public Service Commission would have been a

deviation from the past practices and that would have caused

prejudice and grievance amongst the appellants as also disparity in

application of the Service Rules. It was also pointed out that the

appellants and the respondents were inducted into the Government

service through two separately and different modes of recruitment,

one taking place before the constitution of the Arunachal Pradesh

Public Service Commission and the other after the constitution of the

Arunachal Pradesh Public Service Commission.

10. The learned Single Judge of the Gauhati High Court took up

the aforesaid writ petition for hearing and by its judgment and order

dated 29.04.2005 allowed the writ petition and directed the

Government of Arunachal Pradesh to make necessary changes in the

seniority list by recasting the same by accepting the date of

appointment of the respondent no.1 as on 02.05.1989 and those of

the appellants from the respective dates of their regularization and

that the ad-hoc period of service rendered by them would not be

counted towards the seniority in the rank of Assistant Engineer.

11. Being aggrieved by the aforesaid judgment and order, an

appeal was filed before the Division Bench of the High Court which

was heard accordingly and by a judgment and order dated 19.02.2009 the Division Bench dismissed the writ appeal filed by the

appellants and confirmed the judgment and order passed by the

learned Single Judge. Being so aggrieved, the present appeal was

filed by the appellants herein which was entertained and on

completion of the pleadings, we have heard learned counsel

appearing for the parties.

12. Counsel appearing for the appellants submitted before us

that since the appellants herein were appointed prior to the

respondent no.1 in point of time and they were also regularized from

an earlier date, they had been rightly shown by the concerned

Department to be senior to the respondent no. 1. The counsel for the

appellant further submitted before us that therefore in any view of

the matter the appointment of the appellants having been made by

the State Government prior to the constitution of the Arunachal

Pradesh Public Service Commission and their regularisation on the

recommendation of the State Public Service Commission after

successful completion of two years probationary service, having not

been challenged by any party, including the respondent no. 1 herein,

the High Court was not justified in interfering with the seniority

position and the length of service rendered by the appellants in

counting the said ad-hoc period of service for the benefit of their

seniority.

13. It was also submitted that not only their services rendered as

temporary and ad-hoc service were recognized and counted towards

their seniority while regularizing their service as Assistant Engineer

with a retrospective date of their initial appointment, but even some

of the appellants, in the meantime, depending on their seniority in

the post of the Assistant Engineer were considered and promoted

during the period from 1991 to 2001 to the post of the Executive

Engineer and the Superintending Engineer and one of them was even

promoted to the post of the Chief Engineer. However, despite the

aforesaid situation, no objection or challenge was made till 2001. It

was further submitted that the High Court acted illegally and without

jurisdiction in setting aside the benefit given to them as far back as

20.07.1989, although, in the writ petition filed by the respondent no.

1, the said order was not challenged. It was also submitted that the

respondent no. 1 himself not having raised any grievance against the

initial appointment of the appellants as temporary and ad-hoc

Assistant Engineers and also having not protested their

regularization of service on the recommendation of the Arunachal

Pradesh Public Service Commission from the date of their initial

appointment and the said order having become final and binding no

interference was called for from the High Court on the basis of a writ

petition.

14. The counsel appearing for the respondent no. 1, however,

submitted that though the initial appointment of the appellants has

not been challenged by the respondent no. 1, he is aggrieved by the

appellants having been given the benefit of seniority for the period of

service which was rendered on temporary and ad-hoc basis. The

counsel for the respondents also submitted that since the initial

appointment of the appellants was irregular and de hors the relevant

Rules, they are entitled to get their seniority only from the date when

their were regularized by the competent authority and therefore the

judgment and order passed by the High Court is just and proper. It

was also submitted by the counsel for the respondents that had the

appellants so desired, they could have, as he (respondent no.1) had

done, submitted their application for being considered as a regular

appointee pursuant to the advertisement issued by the Public Service

Commission. The counsel for the respondents further emphasized

the fact some of the appellants had availed the said opportunity,

which fact would indeed show that they were fully conscious of the

fact that their initial appointment was not in accordance with the

existing rules and that the same was required to be regularized by

following a proper procedure and therefore their seniority could be

counted only from the date they were so regularized in the service on

the basis of the recommendation of the Arunachal Pradesh Public Service Commission.

15. In the light of the aforesaid submissions and averments made

by the counsel appearing for the appellants, the respondents and the

State of Arunachal Pradesh and after examining the documents

placed on record before us, we find that there is no dispute with

regard to the fact that the appellants were appointed as Assistant

Engineers on purely temporary and ad-hoc basis. Few of the letters

dated 2nd April, 1986 issued in the case of some of the appellants are

placed on record.

16. A close perusal of the said letters issued shows that a few of

the appellants had been appointed on 2nd of April, 1986 as Assistant

Engineers purely on temporary and ad-hoc basis as per the relevant

terms and conditions. In clause 3 thereof, it was provided that the

appointments would be on purely temporary and ad-hoc basis until

regular appointments are made according to the Rules on the

recommendation of a Selection Board constituted by the Government

and that aforesaid ad-hoc appointments as Assistant Engineer would

not entitle any seniority in the cadre of regular Assistant Engineer.

17. Clause 8 of the said appointment letter, on the other hand,

stated specifically that his appointment as an Assistant Engineer

would be governed by the relevant Rules and Orders of the Government issued from time to time. There is also no dispute with

regard to the fact that at the relevant time when the aforesaid

appointment letters were issued, the service condition of the

appellants were governed by the Arunachal Pradesh Administration

[Public Works Department] Group-B Post Recruitment Rules, 1983,

which is a set of rules issued in exercise of the powers conferred

under Article 309 of the Constitution of India. The said Rules also

regulate the method of appointment to the Group-B posts in the

Public Works Department and also govern the recruitment process of

the Assistant Engineers [Civil] in the Arunachal Pradesh Public

Works Department. The said Rules provide both direct recruitment

and promotion as methods of recruitment. The said Rules further

provide that in case of a failure to recruit by the aforesaid methods,

transfer on deputation shall be employed and that the period of

probation for such appointment would be for two years. The Rules

laid down further that the Union Public Service Commission was not

required to be consulted in making the recruitment.

18. The aforesaid appellants after their recruitment on temporary

and ad-hoc basis worked on probation for a period of two years and

on completion of the said period their cases were considered by the

State Public Service Commission and by an order dated 20.07.1989,

the appointment of the appellants was regularised as Assistant Engineer [Civil] against direct recruitment quota. In the said order,

the initial date of joining of the appellant no. 1 to the post of

Assistant Engineer [Civil] on temporary and ad-hoc basis was shown

as 04.02.1986 and his date of regularization of appointment in the

concerned Grade was shown to be as 04.02.1986, whereas, the other

appellants were also given similar dates, but the fact remains that

their appointment to the post of Assistant Engineer is shown to have

been regularized with effect from the date of their initial appointment

only.

19. Several seniority lists were published thereafter, showing the

names of the appellants as senior to the respondent no.1 and despite

such publication, which were of course provisional in nature, no

objection was raised by the respondent no. 1. A final seniority list of

Assistant Engineers [Civil] in Arunachal Pradesh Public Works

Department as on 01.03.1999 was published on 15.03.1999 through

an Office Memorandum and in the said seniority list also the names

of the appellants were shown senior to the respondent no. 1. In the

said seniority list also not only the date of their initial appointment in

the post of Assistant Engineer was shown but also the date of their

confirmation in the Grade was also shown which was from the date

of their initial appointment. When the aforesaid final seniority list

was published, the respondent no. 1 finally filed a writ petition in 2001 challenging the seniority position given to the appellants.

20. On the 2nd of March, 2001, a Gazette notification had also

been published which clearly indicates that not only the appellants

were confirmed in the post of Assistant Engineer [Civil] but they were

also confirmed in the post of the Executive Engineers [Civil] and at

least some of them have since been promoted to the post of the

Superintending Engineer and one of them is at least occupying

become the post of the Chief Engineer. The respondents in their writ

petition had neither challenged the initial appointment order of the

appellants appointing them as Assistant Engineers [Civil] on

temporary and ad-hoc basis under the 1983 Rules, nor had they

challenged the subsequent order passed by the Government of

Arunachal Pradesh on the recommendation of the Arunachal

Pradesh Public Service Commission regularising the services of the

appellants as Assistant Engineers from the date of their initial

appointment. Not only these orders were not challenged by the

respondent no. 1 in the writ petition filed by him but the subsequent

orders of promotion of these appellants to the post of Executive

Engineers and their confirmation in the said post, on the basis of

their seniority positions counting the ad-hoc period of service, were

also not challenged. These orders are therefore final and binding on

all concerned.

21. As noted earlier by us, several seniority lists, although

provisional in nature, were published in the meantime, showing that

the benefit of ad hoc period had been given to the appellants. But

these were never challenged by the respondent no. 1 and it was only

in the year 2001 when some of them were promoted to the post of

Superintending Engineer and one of them to the post of the Chief

Engineer that the respondent no. 1 filed the aforesaid writ petition.

22. The High Court without considering those facts have only

dealt with one aspect which is that the initial appointment of the

appellants to the post of Assistant Engineer was de hors the Rules.

The said findings recorded by both the Single Judge as also the

Division Bench were uncalled for and unjustified for the simple

reason that the appointment order itself indicated that their

appointment would be governed by the Service Rules then existing,

i.e., the 1983 Rules.

23. The fact that their services were regularized from the date of

their initial appointment on the recommendation of the Arunachal

Pradesh Public Service Commission was also totally ignored by the

High Court. Thus, these facts coupled with the fact that none of the

aforesaid orders were challenged by the respondent no.1, would

indicate that the said orders are final and binding on all the persons

concerned. The High Court ignored the fact that the respondent no. 1 himself was bound by the aforesaid orders. The respondent no.1 was

bound by his own appointment orders. The appellants had rendered

two years of service as Assistant Engineers and at least some of the

appellants including appellant no. 1 had successfully completed their

probation period on 01.04.1988 whereas the respondent no. 1 was

appointed as Assistant Engineer on regular basis and put on

probation for two years on 02.05.1989. Therefore, when the

respondent no. 1 was put on probation, the appellant no. 1 and some

others had successfully completed their probation. Thus, for all

purposes at all times, the appellants were senior to the respondent

no. 1.

24. Considering the said fact and also considering the precedents

in the Department that all such employees were regularized from the

date of their initial appointment, the Government of Arunachal

Pradesh also regularized the services of the appellants in the post of

Assistant Engineer from the date of their initial appointment and that

was done on the recommendation of the Arunachal Pradesh Public

Service Commission. The order of regularization having become final

and binding on all concerned could not have been ignored and

implicitly set aside by the High Court on a ground that the initial

appointment of the appellants was de hors the Rules, which is totally

a non-existent ground.

25. There is no denial to the fact that prior to the constitution of

the Arunachal Pradesh Public Service Commission on 29 th March,

1988 the appointment of Assistant Engineers in the State Public

Works Department was always carried out in accordance with the

Arunachal Pradesh Administration [Public Works Department]

Group-B Post Recruitment Rules, 1983. The appointment of the

appellants as indicated by their initial appointment letters issued in

1986 indicate that their appointments were governed as per the said

Service Rules.

26. Under the said Rules, a minimum service period of two years,

known as period of probation was considered necessary for rendering

service in the capacity of Assistant Engineer for all appointments

made by Government to these posts since 1980. In all cases since

1980 and prior to the constitution of the State of Arunachal Pradesh

as an independent State, the services of the incumbents were

regularised giving them retrospective effect from their actual/initial

date of joining in the service and since at the stage of initial

appointment of the appellants Arunachal Pradesh Public Service

Commission was non-existent, the regularization of services of such

employees were given through meetings of the Departmental

Promotion Committees. By the time appellants completed their two

years of probationary service period, the State of Arunachal Pradesh came to be constituted and since Arunachal Pradesh Public Service

Commission had come into existence by that time, the cases of

regularization of the services of the appellants were considered by the

State Public Service Commission and on its recommendation their

services were regularized after expiry of the two year period of

probation giving retrospective effect to their regularization from the

date of their initial appointment.

27. It is clearly stated by the State of Arunachal Pradesh that if

such a retrospective effect to regularization of the services of the

appellants by the State Public Service Commission would not have

been given and if it had deviated from the past practice, the same

would have caused prejudice and grievance and a disparity in the

application of the Service Rules as compared to the past cases.

28. It is, thus, clearly established that the respondent no. 1 was

inducted into Government service by a separate mode of recruitment

than that of the appellants and therefore their cases cannot be

equated. The statement of the Government of Arunachal Pradesh

that the provisional seniority lists were regularly published by the

Public Works Department Secretariat from time to time since 1990 to

1999, with ample time being given to the incumbents to reply against

any anomaly in the seniority list and that the respondent no. 1 never

submitted any representation in that regard is not disputed. The respondent no. 1, therefore, had challenged the established seniority

position after about 10 years and that too without challenging the

basic and the fundamental orders of giving the appellants the benefit

of regularised service from their initial date of appointment as

Assistant Engineers.

29. The challenge appears to us to be belated and in this regard

we would endorse the same view as expressed by this Court in the

case of Shri L. Chandrakishore Singh v. State of Manipur & Ors.

reported in (1999) 8 SCC 287 at para 15 which is extracted

hereinbelow: -

"15. It is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. In this regard we fortify our view by the judgment of this Court in G.P. Doval and Anr. v. Chief Secretary, Government of U.P. and Ors. [(1984) 4 SCC 329]."

30. The respondents have, in support of their case, referred to

and relied upon the judgment of this Court in the case of K.

Madalaimuthu and Another v. State of T.N. and Others reported in

(2006) 6 SCC 558. In order to appreciate the contention raised by

the counsel appearing for the respondents, we have carefully perused the said decision. However, on a careful scrutiny of the said

judgment, we are of the considered opinion that the said decision is

distinguishable on facts which are noted hereinbelow.

31. The aforesaid decision was rendered in a fact situation which

is altogether different from the present one and this would be

apparent on a bare perusal of the said decision. In the said case the

recruitment of the respondents therein was admittedly de hors the

relevant Recruitment Rules inasmuch as the said recruitment was

particularly made under Rule 10 (a) (i) (1) of the Tamil Nadu State

and Subordinate Services Rules, 1955. The said provision is

extracted hereinbelow for a proper appreciation of the situation: -

"10 (a) (i) (1): Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possess the qualifications prescribed for the post otherwise than in accordance with the said rules."

(emphasis supplied)

32. It is clear from the judgment in the said case that the

respondents therein had been appointed under Rule 10 (a) (i) (1)

which provides for recruitments in emergent circumstances and

allows the appointing authority to make appointments otherwise

than in accordance with the said Rules. It was in this context that

this Court held that the respondents therein will get benefit of their seniority only from the date they were regularized in the cadre to

which they had been appointed. In the case at hand, however, the

fact situation is totally different on account of the fact that the

appointment letters issued to the appellants appointing them as

temporary and ad-hoc basis as Assistant Engineers in the Public

Works Department specifically mentioned that the appellants will be

governed by the Service Rules and also that they would be

regularized according to the Rules on the recommendation of a

Selection Board constituted by the Government. We would like to

extract both the aforesaid conditions formulating part of the terms

and conditions contained in the appointment letters issued to the

appellants: -

"3. This appointment will be on purely temporary and ad hoc basis until regular appointment are made according to rules on the recommendation of a selection Board constituted by the Government. (No increment in time scale will be permissible till their appointment is regularized. This adhoc appointment as Assistant Engineer will not entitle any seniority in the cadre of regular Assistant Engineer"

"8. His appointment will be governed by the relevant Rules and Orders of the Government issued from time to time"

33. In that view of the matter there was not only a case of the

appellants having a legitimate expectation that their cases would be

considered for regularization by the competent authority but also a

case where the Service Rules were also made applicable to the

appellants. When the Arunachal Pradesh Public Service Commission ("the APPSC") considered the cases of the appellants for

regularization on completion of their probationary period of two

years, all the said factors weighed with the APPSC and consequently

it was decided to regularize them from the date of their initial

appointment. Therefore, in the facts of the present case, ratio laid

down in the case of Shri L. Chandrakishore Singh (supra) would be

squarely applicable.

34. We may here also appropriately refer to another decision of

this Court in the case of G.P. Doval v. Chief Secy., Govt. of U.P.

reported in (1984) 4 SCC 329, wherein this Court held that

regularization of the services of a person, whose initial appointment

although not in accordance with the prescribed procedure but later

on approved by an authority having power and jurisdiction to do so

would always relate back to the dates of their initial appointment.

Para 13 is, which is reproduced hereinbelow:

"13. ..........................If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular, it is obvious commonsense that in the absence of a contrary rule, the approval which means confirmation by the authority which had the authority, power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. That has not been done in this case.................. ........"

35. We may also usefully refer to the judgment of this Court in

Direct Recruit Class II Engineering Officers' Assn. v. State of Maharashtra reported in (1990) 2 SCC 715, which reads as follows:

"47. To sum up, we hold that:

(A) 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.................................

......."

36. The other aspect of the matter which is to be noted is that

when the respondents were appointed to the service as Assistant

Engineers on the recommendation of the APPSC, the said

appointment was on probation for a period of two years. Some of the

appellants had successfully completed their probation period on

20.07.1989, after their cases had been taken up for regularization by

the APPSC. Therefore, when considered from any angle there is no

justification for denial of the benefit of seniority to the appellants

from the date of their initial appointment which is also in tune with

the legal principles laid down by this Court as referred to

hereinbefore and in that view of the matter the aforesaid decision

which is relied upon by the counsel appearing for the respondents is

held to be not applicable to the facts and circumstances of the

present case.

37. In view of the aforesaid discussion, we set aside the orders

passed by the Single Judge as well as by the Division Bench of the

High Court. Consequently, the Writ Petition filed by respondent no. 1 in the High Court would stand dismissed.

38. Accordingly, the present appeal is allowed. There will be no

order as to costs.

...........................................J. [ Dr. Mukundakam Sharma ]

..........................................J. [ H.L. Dattu ]

New Delhi, April 20, 2010.