IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1042 of 2015 In Civil Writ Jurisdiction Case No.17484 of 2008 1. [ENTITY], S/o- Late Sri Mathura Prasad Sharma, at present posted and working as Acting General Manager at District Industries Centre, Madhubani. 2. [ENTITY], S/o- Late Gopal Sharan Gupta, at present posted and working as Acting General Manager at District Industries Centre Mungher. 3. [ENTITY], S/o- Sudama Tiwari, at present posted as Project Manager at District Industries Centre, Begusarai. 4. [ENTITY], S/o- Sri Kameshwar Sao, at present posted and working as Project Manager at District Industries Centre, Banka. 5. [ENTITY], S/o- Shiv Lakhan Sharma, at present posted as Project Manager at District Industries Centre, Gaya. 6. [ENTITY], S/o- Sri Kishori Sharan Chaudhary, at present posted as Project Manager at District Industries Centre, Begusarai. 7. [ENTITY], S/o- Sri Upendra Prasad Sharma, at present posted as Project Manager at District Industries Centre, Darbhanga, Additional charge of Assistant Director, Handloom and Sericulture Directorate, Deptt. Of Industries, Bihar, Patna. 8. [ENTITY], S/o- Late Bal Mukund Singh, posted at the Directorate of Handloom and Sericulture, Department of Industries, Vikas Bhawan, Bihar, Patna 9. [ENTITY] S/o- Late Uma Shankar Singh, at present deputed as Directorate of Handloom & Sericulture, Department of Industries, Vikas Bhawan, Patna. 10. [ENTITY], S/o- Dukhan Ravidas, at present deputed at Directorate of Handloom & Sericulture, Deptt. of Industries, Vikash Bhawan, New Secretariat, Patna. 11. [ENTITY], S/o- Shiv Nandan Prasad Yadav at present posted as Bunai Visheshgya at Kendriya Design Kendra, Rajendra Nagar, Patna. 12. [ENTITY] S/o- Sri Brajnandan Singh, at present posted as Project Manager at District Industries Centre, Muzaffarpur. 13. [ENTITY] S/o Sri Brij Kishore Sharma at present posted as Project Manager, District Industries Centre, Muzaffarpur. Respondents-Appellant/s Versus 1. The [ENTITY] through the Principal Secretary, Department of Industry, Bihar, Patna. 2. The [ENTITY]. 3. The [ENTITY]. 4. The [ENTITY]. 5. The [ENTITY]. Patna High Court [CASE NUMBER] dt.19-03-2018 2/34 6. The [ENTITY]. 7. The [ENTITY] 8. The [ENTITY] through Department Commissioner for Handloom, Ministry of Textile, New Delhi. 9. The [ENTITY]. 10. The [ENTITY]. 11. The [ENTITY]. 12. [ENTITY], S/o- Upendra Prasad Deo posted at Weaver's Training Centre Biharsharif, Nalanda, at present posted as Technical Supervisor at Hast Kargha Sudridhikaran Yojna, Patna, deputed at DIC, Banka. 13. [ENTITY], S/o- Ram Nath Pal, posted at hast Kargha Saghan Vikash Yojna, Bhagalpur, at present posted as 14. [ENTITY] S/o- Chotta Baitha posted at the Bihar Institute of Silk and Textile, Nath Nagar Bhagalpur at present posted as 15. [ENTITY] S/o- Julfikar Ali, at present posted as Supervisor at Weaver's Training Centre, Jhingnagar, Bihar Shariff, Nalanda. 16. [ENTITY], S/o- Md. Habibullah Ansari, at present deputed at Directorate of Handloom & Sericulture, Dept. of Industries, Vikash Bhawan, New Secretariat, Patna. 17. [ENTITY], S/o- Lamalpati Sao, posted at Weaver's Training Centre, Amarpur, Banka, Dist.- Banka, at present posted as Respondents-Respondents-Respondents 1st set 18. [ENTITY], S/o- Sri Ram Das Sharma, at present posted & working as technical supervisor, Hast Kargha Sagham Vikash Yojna, O/o Dy. Development Officer (textile), Biads Building, Opp. R.K. Ashram, Bela, Muzaffarpur. 19. [ENTITY], S/o- RajVansh Singh, at present posted and working as technical supervisor, Hast Kargha Sudrihikaran Yojna, O/o Dy. Development Officer (Textile), DIC, Karimganj, Gaya. 20. [ENTITY], S/o- Sri Bhola Pathak, at present posted as Supervisor, Weaver's Training Centre, Chakand, Gaya. 21. [ENTITY], S/o- Sri Yadunandan Prasad, at present posted & working as Marketing Officer, O/o Assistant Registrar, Co-operative Societies (Handloom), Rajendra Nagar, Patna deputed at Deptt. of Industries, New Secretariat, Patna. 22. [ENTITY], S/o- Late Bishnudeo Singh At present posted as Superior Weaver's Training Centre, Kako, Jehanabad. 23. [ENTITY], S/o- Shri Vishwanath Prasad Singh, at present deputed in Department of Industries, Govt. of Bihar, Vikash Bhawan, Patna. Petitioners-Respondents-Respondents 2nd set with Letters Patent Appeal No. 2050 of 2015 In Civil Writ Jurisdiction Case No.17484 of 2008 1. The [ENTITY] through the Principal Secretary, Department of Industry, Bihar, Patna. 2. The [ENTITY]. Patna High Court [CASE NUMBER] dt.19-03-2018 3/34 3. The [ENTITY]. 4. The [ENTITY]. 5. The [ENTITY]. 6. The [ENTITY]. 7. The [ENTITY]. Respondents- Appellants Versus 1. [ENTITY] Son of Sri Ram Das Sharma, Technical Supervisor (Lab Assistant), Bihar Institute of Silk and Textile, Nath Nagar, Bhagalpur, District - Bhagalpur, at present posted & working as Technical Supervisor, hast Kargha Sagham Vikash Yogna, O/o Development Officer (Textile), BIADA Building, Opp. R.K. Ashrama, Bela, Muzaffarpur. 2. [ENTITY] son of Sri Rajvansh Singh, Technical Supervisor in the office of the Deputy Development Officer (Textile) Darbhanga, District Darbhanga at present posted and working as technical supervisor, Hast Kargha Sudrihikaran Yojna, o/O Dy Development Officer (Textile), DIC, Karimganj, Gaya. 3. [ENTITY], Son of Sri Bhola Pathk, Technical Supervisor (Lab Assistant), Bihar Institute of Silk & Textile, Nath Nagar, bhagalpur, at present posted as Supervisor, Weavers Training Centre, Chakand, Gaya. 4. [ENTITY], Son of Sri Yadunandan Prasad, Technical Supervisor (Investigator) in the Deputy Development Officer (Textile) Bhagalpur at present posted & working as Marketing Officer, O/o Assistant Registrar, Co- operative Societies (Handloom), Rajendra Nagar, Patna deputed at Dept. of Industries, New Secretariat, Patna. 5. [ENTITY], Son of Late Bishnudeo Singh, at present posted and working as Marketing Inspector (Technical Supervisor) in the office of the Asstt. Registrar Co-operative Societies (Handloom), Rajendra Nagar, Patna, at present posted as Superior Weavers Training Centre, Kako, Jehanabad. 6. [ENTITY], Son of Shri Vishwanath Prasad Singh, at present posted and working as Technical Supervisor (Marketing Inspector ) in the officer of the Asst. Registrar (Handloom) Rajendra Nagar, Patna, Deputed at Department of Industries, Govt. of Bihar, Vikash Bhawan, Patna. Petitioners-Respondent 1st set 7. [ENTITY], Son of Late Sri Mathura Prasad Shamra, PO at Kendriya Design Kendra, Rajendra Nagar, P.S. Kadamkuan, District - Patna, at present posted as Acting General Manager at District Industries Centre, Madhubani. 8. [ENTITY], Son of Late Gopal Sharan Gupta, posted at District Industries Centre, Biharsharif, Nalanda, at present posted as Acting General Manager at District Industries Centre, Munger. 9. [ENTITY], Son of Sudama Tiwari, posted at Office of Assistant Registrar (Handloom), Rajendra Nagar, Patna, at present posted as Project Manager at District Industries Centre, Darbhanga, additional charge of Assistant Director, Handloom and Sericulture Directorate, Deptt. of Industries, Bihar, Patna. Patna High Court [CASE NUMBER] dt.19-03-2018 4/34 10. [ENTITY], Son of Sri Upendra Prasad Sharma, posted at office of Assistant Registrar (Handloom), Rajendra Nagar, Patna, at present posted as Project Manager at District Industries Centre, Begusarai. 11. [ENTITY], Son of Sri Kishori Sharan Chaudhary, posted at Hast Kargha Sudridhikaran Yojna, N.K. ghosia Lane, Jakkanpura, Patna, at present posted as Project Manager at District Industries Centre, Begusarai. 12. [ENTITY], s/o Sri Brij Kishore Sharma, posted at Hast Kargha Sudridhikaran Yojna, Sitamarhi Registrat, at present posted as Project Manager at District Industries Centre, Muzaffarpur. 13. [ENTITY], Son of Shiv Lakhan Sharma, posted at Weaver's Traning Centre, Aurangabad, at present posted as Project Manager, at District Industries Centre, Gaya. 14. [ENTITY], Son of Sri Kameshwar Sao, Posted at Hast Kargha Sudridhikaran Yojna, Purnea P.S. & town - Purnea, at present posted as Project Manager at District Industries Centre, Banka. 15. Sri [ENTITY], S/o Sri Brajnandan Singh, posted at Hast Kargha Sudridhikaran Yojna, Gaya, P.s. & town + District - Gaya, at present posted as Technical Supervisor, at Hast Kargha Sudridhikaran Yojna, DIC, Aurangabad. 16. [ENTITY] Son of Late Uma Shankar Singh posted at the Bihar Institute of Silk and Textiles, Nath Nagar, Bhagalpur, at present posted as Technical Supervisor, Hast Kargha Sudridhikaran Yojna, DIC, Darbhanga at present deputed as Directorate of Handloom & Sericulture, Department of Industries, Vikas Bhawan, Patna 17. [ENTITY] Son of Upendra Prasad Deo Posted at Weaver's Training Centre Bihar Sharif, Nalanda at present posted as Technical Supervisor, at Hast Kargha Sudridhikaran Yojna, Patna deputed at DIC, Banka 18. [ENTITY] Son of Late Bal Mukun Singh posted at the Directorate of Handloom and Sericulture, Department of Industries, Vikash Bhawan, Bihar, Patna 19. [ENTITY] Son of Shiv Nandan Prasad Yadav posted at Hast Kargha Sudhridhikaran Yojna, Siwan, P.S., Town & District - Siwan, at present posted as Bunai Visheshgya at Kendriya Design Kendra, Rajendra Nagar, Patna 20. [ENTITY] Son of Ram Nath Pal presently posted as Hast Kargha Sagahan Vikash Yojna, Bhagalpur, P.S., Town & District - Bhagalpur 21. [ENTITY] Son of Chhotu Baitha presently posted as the Bihar Institute of Silk and Technology, Nath Nagar, Bhagalpur 22. [ENTITY] Son of Julfikar Ali posted at Kendriya design kendra Rajendra Nagar, P.S. - Kadamkuan, Town & Dist - Patna at present posted as Supervisor at Weaver's Training Centre, Jhingnagar, Biharsharif, Nalanda 23. [ENTITY] Son of Dukha Ravidas posted at Weaver's Training Centre, Puraini, Bhagalpur at present deputed at Directorate of Handloom & Sericulture, Deptt. Of Industries, Vikash Bhawan, New Secretariat, Patna 24. [ENTITY], Son of Md. Habibullah Ansari posted at the office of Assistant Registrar (Handloom), Rajendra Nagar, P.S. - Kadamkuan, District - Patna, at present deputed at Directorate of Handloom & Sericulture, Dept. of Industries, Vikash Bhawan, New Secretariat, Patna 25. [ENTITY], Son of Kamalpati Sao at present posted as Weaver's Training Course, Amarpur, Banka, Dist. - Banka 26. The [ENTITY] through Development Commissioner for Handloom, Ministry of Textile, New Delhi 27. The [ENTITY] [CASE NUMBER] dt.19-03-2018 5/34 28. The [ENTITY], Ministry of Textile, Government of India, New Delhi Intervener- Respondents-Respondents 2nd set Appearance : (In Letters Patent Appeal No. 1042 of 2015) For the Appellant/s : Mr. [ENTITY], Sr. Advocate Miss [ENTITY] For the Respondent nos. 18-23 Mr. [ENTITY] Mr. [ENTITY] Mr [ENTITY] For respondent no.8 Mr. [ENTITY] For the State Mr. [ENTITY], G.A.11 Mr. [ENTITY], AC to G.A.11 Mr. [ENTITY], AC to G.A.11 (In Letters Patent Appeal No. 2050 of 2015) For the Appellants Mr. [ENTITY], G.A.11 Mr. [ENTITY], AC to G.A.11 Mr. [ENTITY], AC to G.A.11 For the Respondent/s : Mr. CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN and HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE JYOTI SARAN) Date :19 -03-2018 The private respondents as well as the official respondents in the writ petition are independently before this Court in the intra court appeal(s) arising from a judgment and order dated 06.04.2015, passed by a learned Single Judge of this Court in [CASE NUMBER], whereby the learned Single Judge has held that until the regularization of the writ petitioners with effect from their respective dates of appointment in the year 1986 is not interfered with, the length of service would be the basis for reckoning the inter se seniority qua the private respondents. It is with such direction that the writ petition was Patna High Court [CASE NUMBER] dt.19-03-2018 6/34 disposed of for re-arrangement of the seniority list in between the writ petitioners and the private respondents. 2. Feeling aggrieved by the judgment and order so passed by the learned Single Judge, while the private respondents have preferred [CASE NUMBER], [CASE NUMBER], is preferred by the State-respondents. While [CASE NUMBER] was admitted for hearing on 22.05.2015, [CASE NUMBER] was admitted after condonation of delay vide order passed on 31.01.2017 with direction of its hearing analogous with [CASE NUMBER]. The admission order dated 22.05.2015 passed in [CASE NUMBER] also contains an interim order of stay of reversion of the private respondents until further orders of this Court while allowing other direction so contained in judgment to be in force. 3. An interlocutory application bearing [CASE NUMBER] was filed for vacating such direction and which has been refused vide order passed on 24.09.2015. The matter has thereafter been listed before this Bench when the two appeals have been heard analogous and the parties have addressed on merits. 4. Before we would proceed to discuss the issues arising in the present appeal, we find it necessary to refer to Patna High Court [CASE NUMBER] dt.19-03-2018 7/34 some of the dates which would be relevant for adjudication of the dispute so raised. 5. Vide order(s) present at Annexure-25 series, issued on different dates in the month of September, 1986, that the writ petitioners were appointed on ad hoc basis for a period of six months against the posts of Technical Supervisor, and Textile Designer etc. It is not in dispute, rather admitted that the appointments, though ad hoc, was extended from time to time until the claim of these petitioners was taken up for regularization by the Directorate Handloom and Sericulture on 26.10.1991
. The proceeding placed on record by the respondent- writ petitioners through a supplementary affidavit filed in the present appeal on behalf of respondent nos. 18 to 23, is at Annexure-R/2 and which shows that of the 36 sanctioned posts of [ENTITY], Senior Instructor and Technical Assistant, 6 were occupied by the Indian Institute of Handloom Technology (IIHT) trained writ petitioners who had completed a three years diploma from IIHT, Benaras and were appointed in the year 1986. Such is the noting present at paragraph 2 of the minutes of meeting held by the Directorate on 26.10.1991. The names of the six petitioners herein finds mention. Insofar as the remaining 30 of the 36 sanctioned posts is concerned, a decision was taken Patna High Court [CASE NUMBER] dt.19-03-2018 to send a requisition to the Staff Selection Commission for appointment against the same. The minutes further confirm that these six posts which were held by the petitioners were kept secure for their regular appointment. Since the decision so taken by the Establishment Committee of the Directorate for regularization of the writ petitioners consumed some time that the petitioners came before this Court in [CASE NUMBER] and [CASE NUMBER]. A learned Single Judge of this Court, vide judgment and order passed on 08.01.1997 and 24.01.1997 enclosed at Annexure-3 and 4 respectively to the writ petition, after taking note of the recommendation of the Establishment Committee as well as the fact that the petitioners were continuing against sanctioned post(s), directed the respondents concerned to pass appropriate order in terms of the recommendation of the Committee within a period of six weeks from the date of the judgment and order. Such was the direction issued in two writ petitions. The direction so issued by the learned Single Judge was not questioned either by the State respondents or any other party aggrieved before any superior forum.
6. The petitioners by virtue of their appointment on ad hoc basis have continued as per the extension granted by the Patna High Court [CASE NUMBER] dt.19-03-2018 Department from time to time until the writ petitioner no.1 was regularized vide memo no. 2186 dated 14.08.1997 and by another order bearing memo no. 2185 passed on the same date, the writ petitioner nos. 2 to 6 were also regularized. The order of regularization was made effective from the date of initial appointment of the writ petitioners. Copies of regularization orders have been enclosed at Annexure-5 series to the writ petition. Insofar as the issue of seniority, which is the contest put forth herein is concerned, the order of regularization stipulated that it would be decided later on.
7. In between this process, the Staff Selection Commission alongside, also proceeded on the requisition placed by the respondents in the light of the decision of the Establishment Committee dated 26.10.1991 for appointment against the remaining 30 posts and issued advertisement for appointment of Sizing Jobbers, Technical Assistant and other equivalent posts. The appellants herein who were the private respondents in the writ proceedings, applied against the advertisement. Vide letter no. 183 dated 07.11.1994 present at running page 333 of the writ proceeding, a merit list was prepared and was forwarded by the Bihar Public Service Commission (BPSC) because according to learned counsel, at Patna High Court [CASE NUMBER] dt.19-03-2018 the relevant time the duty lay with the BPSC for such selection. Being successful in selection that the private respondents were appointed on different posts of Sizing Jobber and Technical Assistant etc. vide appointment orders dated 20.02.1996/07.08.1996, copies of which have been placed on record vide Annexure-F and G of the counter affidavit filed on behalf of respondents nos. 3 and 7.
8. A relevant aspect of the contest is that the advertisement for appointment was limited to the 30 of the 36 sanctioned posts, as per the decision of the Establishment Committee dated 26.10.1991. Meaning thereby the six sanctioned posts held by the writ petitioners were not advertised. The process of determination of inter se seniority between the writ petitioners and the appellant-respondents was initiated on 04.05.2005 when a tentative gradation list was published inviting objection vide Annexure-9 to the writ petition placing the respondents-writ petitioners above the appellants. According to the appellants, it is taking note of the objection so raised that the final gradation list was prepared and published through memo no.2914 dated 21.02.2008 at Annexure-12 to the writ petition, whereby the appellants-private respondents were placed above the writ petitioners and it is feeling aggrieved that they moved Patna High Court [CASE NUMBER] dt.19-03-2018 this Court through [CASE NUMBER] which prayer has been allowed by the judgment and order impugned and hence these appeals.
9. Mr. [ENTITY], learned Senior Counsel has appeared for the appellants and broadly has supported the seniority list on the following grounds:-
A. The initial appointment of the writ petitioners was contrary to the advisory issued by the Stage Government as contained in the circular dated 11.06.1986, a copy of which is enclosed at Annexure-E to the counter affidavit at running page 138 of the writ petition.
B. Where the initial appointment of the writ petitioners itself was illegal, no right would accrue to them either to claim retrospective regularization or continuation for the purpose of seniority.
C. In view of apparent illegality, the regularization order on a higher scale than the scale held by the petitioners was not legal.
D. The legal position as regarding the status of an ad hoc employee is well-settled and even if the period rendered is counted for the purpose of continuity, it cannot be a foundation for grant of seniority.
10. In support of his submission as to the illegality in Patna High Court [CASE NUMBER] dt.19-03-2018 initial appointment of these petitioners against the ad hoc post vide appointment order present at Annexure-25 series, learned counsel has referred to an advisory of the Department of Personnel and Administrative Reforms dated 11.06.1986 to submit that even though clear instruction had been issued by the Department restraining other Departments from making ad hoc appointments, yet within a few months thereafter, the writ petitioners were appointed on 09.09.1986 vide Annexure-25 series. According to Mr. [ENTITY] where the appointment itself was contrary to the advisory issued by the State Government no right can be claimed by the writ petitioners for it is founded on illegality. It is next argued that where the initial appointment itself was illegal, the regularization order present at Annexure-5 series to the writ petition is a perpetuation of illegality for an illegal appointment could not have been validated. In short, Mr. [ENTITY] attacked the very appointment of the writ petitioners on ad hoc basis.
11. It is next contended by Mr. [ENTITY] that if these petitioners had been appointed de hors the guidelines, the regularization order passed on 14.08.1997 could not be applied retrospectively for it is contrary to the legal position settled by the Court. Mr. [ENTITY] has referred to a judgment of the Supreme Patna High Court [CASE NUMBER] dt.19-03-2018 Court rendered in case of [ENTITY] & Anr. vs. State of Assam & Ors. reported in (2013) 2 SCC 516 and placing reliance on the opinion expressed in paragraphs 41,43,46,51,56 and 60, he submits that it is after taking note of the various judgments rendered on the issue, that it was held that even if the services of an employee who has been appointed de hors the statutory rules, is regularized, the ad hoc period cannot be counted for the purpose of seniority. For the same proposition, learned counsel has referred to paragraphs 7 and 8 of the judgment of the Supreme Court rendered in the case of [PRECEDENT].
12. In support of his submission that an illegal appointment does not bestow any right on the appointee, learned counsel has referred to a judgment rendered by the Supreme Court in the case of [ENTITY] vs. Upendra Narayan Singh & Ors. reported in (2009) 5 SCC 65 (para 43,44,53 and
54). According to Mr. [ENTITY] even if the State had decided to regularize the service of the writ petitioners it could best have done it prospectively, but a retrospective regularization is contrary to the settled legal position. In support of his submission, he made reference to a judgment of the Supreme Patna High Court [CASE NUMBER] dt.19-03-2018 Court rendered in case of [ENTITY] & Ors. vs. Sheela Rani reported in (2007) 15 SCC 230. Learned counsel has referred to a judgment of this Court in case of Digambar Thakur vs. [ENTITY] reported in 2015 (1) PLJR 918 (para 15,23 & 29), and a judgment of the Supreme Court reported in [PRECEDENT] in support of his submission that retrospective regularization should be avoided as it disturbs the settled seniority position.
13. While being critical of the judgment impugned, he submits that the learned Single Judge got diverted from the main issue and rather concentrated on the non-challenge to the regularization order which order was not interferring with the status of the petitioners rather it is only when such regularization was made the foundation for determination of inter se seniority and got confirmed on the publication of the provisional seniority list on 04.05.2005 that a cause of action arose for the appellant- respondents to question the seniority. He submits that a plain look of the regularization order placed at Annexure-5 series it would confirm that the issue of inter se seniority was kept open and thus at the stage of regularization of the writ petitioners in the year 1997, there lay no occasion for the appellants to agitate Patna High Court [CASE NUMBER] dt.19-03-2018 any issue.
Concluding his arguments, it is submitted that a non- challenge by the appellants to the regularization order cannot be held a reason for unsuiting them on their challenge to the inter se seniority, which was an independent cause of action and in view of the law so well-settled by the Court(s) the benefit of continuity could not be granted to the writ petitioners for purpose of seniority.
14. Mr. [ENTITY] has led the argument for the respondent writ petitioners, duly assisted by Mr. [ENTITY]. Mr. [ENTITY], responding to the charge of Mr. [ENTITY] on the nature of appointment of the writ petitioners, has invited the attention of this Court to a resolution of the Establishment Committee of the Directorate of Handloom and Sericulture dated 26.10.1991 to submit that any doubt as regarding the validity of the appointment stands clear by the stipulation present therein. With particular reference to the resolution at paragraph 2, he submits that the appointment was made in the year 1986 on ad hoc basis as against 06 out of 36 sanctioned posts of [ENTITY], Senior Instructor, Technical Assistant and equivalent posts, which were available in the Department. In reference to the resolution, he submits that these petitioners are diploma holders from the Patna High Court [CASE NUMBER] dt.19-03-2018 Institute of Handloom Technology at Benaras and it is by virtue of their qualification and under a bond so signed that they had been appointed on ad hoc basis in the year 1986. He submits that the Establishment Committee, taking note of the situation where, of the 36 sanctioned posts available in the Directorate, 06 were held by these petitioners, took a decision to send a requisition before the Subordinate Selection Commission for appointment against the remaining 30 posts, the details of which category- wise are also mentioned in the said paragraph. He submits that the Directorate while sending requisition for filling up the vacant 30 posts also resolved to keep the 06 posts on which these petitioners had been appointed on ad hoc basis secured, until their regularization against those posts.
15. He submits that although the appointment of these petitioners have been questioned by Mr. [ENTITY], but the resolution itself explains that these petitioners, under a bond, were permitted to get/obtain diploma from the Indian Institute of Handloom Technology subject to the condition that they shall serve the government for not less than three years.
It is submitted that it is taking note of the entire matter that the Establishment Committee recommended for the regularization of the petitioners with effect from the date of their Patna High Court [CASE NUMBER] dt.19-03-2018 initial appointment. He submits that since the relief of regularization was not forthcoming that the writ petitioners came before this Court in [CASE NUMBER] and [CASE NUMBER] and vide judgment and order dated 08.01.1997 and 24.01.1997, respectively, present at Annexure 3 and 4 to the writ petition that the learned Single Judge taking note of the decision of the Establishment Committee dated 26.10.1991, issued direction to the respondent authorities to issue appropriate notification in terms of the recommendation of the Committee positively within six weeks from the date of judgment.
16. In reference to the stand of the Government before the writ Court in [CASE NUMBER] present in the counter affidavit and enclosed at Annexure-R-3 to the supplementary affidavit as well as the request made by the Additional Secretary, Industries Department to the BPSC seeking approval to the regularization of the petitioners as contained in letter dated 26.02.1996 at Annexure-R/4, he submits that it is during the pendency of the matter that the State Government decided to proceed for regularization of the services of the petitioners and after the orders were passed by the learned Single Judge at Annexures-3 & 4, there was no other option left with them but to issue regularization order, copies of which are present at Patna High Court [CASE NUMBER] dt.19-03-2018 Annexure-5 series.
17. It is submitted by Mr. [ENTITY] that whereas petitioner no.1 was regularized vide order bearing memo no.2186 dated 14.08.1991 against the post of Textile Designer in the revised pay scale with effect from the date of his initial appointment, petitioner no.2 to 6 were regularized in a similar manner against the posts of Supervisor/Technical Supervisor, vide memo no. 2185 dated 14.08.1997 which orders are present at Annexures- 5 and 5/A respectively. It is in reference to the order bearing memo no. 922 dated 31.03.1999 at Annexure-5/D and order bearing memo no. 2725 dated 14.10.1999 at Annexure-5/B submitted that the services of these petitioners were confirmed after regularization. It is the argument of Mr. [ENTITY] that the sequence of event discussed would confirm that it is in the light of the resolution of the Establishment Committee dated 26.10.1991 followed by the orders passed by this Court on the writ petitions, referred to above, that the regularization was granted to the respondent-writ petitioners from the date of their initial appointment with no objections raised by any.
18. Supporting the claim of the respondent-writ petitioners for counting of period of ad hoc service for seniority, learned counsel next turns to the Constitution Bench judgment of the Patna High Court [CASE NUMBER] dt.19-03-2018 Supreme Court rendered in case of [PRECEDENT]. With particular reference to the conclusion drawn in paragraph 44 of the judgment, he submits that even if the argument of Mr. [ENTITY] that the initial appointment of these petitioners was not in accordance with the procedure, is accepted on the face value, yet, since these petitioners have continued on their respective posts uninterruptedly till their regularization, in view of legal position settled at paragraph 44 (B), the period of officiating service has to be counted for the purpose of seniority. It is submitted that the case of these petitioners is not covered by the situation present at paragraph 44(A), rather it would be guided by the legal position settled at paragraph 44(B).
19. For the same proposition, learned counsel has referred to a judgment of the Supreme Court reported in [PRECEDENT] and in reference to the opinion expressed in paragraphs 62 to 68, he submits that a similar situation arising in the said case that the Supreme Court taking note of the judgment rendered by the Constitution Bench in Direct Recruit case (supra) as also the judgment rendered thereafter has upheld the Patna High Court [CASE NUMBER] dt.19-03-2018 claim for counting the ad hoc service rendered prior to regularization.
20. The third judgment relied upon by Mr. [ENTITY] is rendered by the Supreme Court in case of [PRECEDENT] and in reference to paragraph 15 of the judgment, he submits that the dispute is put to rest by the opinion expressed by the Supreme Court to hold that where officiating appointment is followed by confirmation, unless a contrary rule is shown, continuous officiation cannot be ignored for determining seniority.
21. He submits that the posts in question were included in the [ACT], vide amendment in 2005, a copy of which is at Annexure-8 to the writ petition. In reference thereto he submits that the posts of Technical Supervisor/Supervisor/Sizing Jobber/Technical Assistant were included in Schedule-4 attached to the Rule by the 2005 amendment. He thus submits that where these posts itself were included in the Cadre Rule in the year 2005, the argument of Mr. [ENTITY] that the appointment was contrary to Rules, is not sustainable. Responding to the reliance placed by Mr. [ENTITY] to the judgment rendered in case of [ENTITY], Patna High Court [CASE NUMBER] dt.19-03-2018 he refers to paragraph 46 of the judgment to submit that the case is distinguishable because in that case the appointment had been made in excess of the quota provided under the Rule and in this background that opinion was expressed, which is not the case in hand. Referring again to the resolution of the Establishment Committee dated 26.10.1991 placed on record by way of a supplementary counter affidavit filed in appeal, he submits that it is not in dispute that of the 36 sanctioned posts, 06 were held by the petitioners while the appellants/private respondents were appointed against the remaining 30 posts. It is his argument that it is in tune with the resolution dated 26.10.1991 that the Department had advertised only 30 posts securing 06 posts held by these petitioners because it had already been recommended for regularization. Turning again to [SECTION] of the Cadre Rule, a copy of which is enclosed at Annexure-B/1 of the counter affidavit of respondent no.21, he submits that all orders issued and appointments made earlier have been held valid as made under the Cadre Rule. It is thus the submission of Mr. [ENTITY] that in these undisputed circumstances, it is too late in the day for the appellants to question either the initial appointment of the writ petitioners or their regularization in the process of defending the seniority list. Concluding his arguments, Mr. [ENTITY] has referred Patna High Court [CASE NUMBER] dt.19-03-2018 to a judgment of the Supreme Court rendered in case of [PRECEDENT] and in reference to the opinion expressed at paragraph 29, he submits that the view expressed by the Supreme Court in the case of [ENTITY] (supra) has been reiterated as regarding the benefit of continuous officiation where ad hoc appointment is followed by regularization.
22. Mr. [ENTITY], learned G.A. 11, appearing for the appellants in [CASE NUMBER], while defending the regularization order, submits that the issue of inter se seniority was kept open and it is taking note of the legal position that after inviting objection, the final gradation list was published, declaring the appellants senior. For the purpose, Mr. [ENTITY] has shown the letter bearing memo no.1575 dated 28.08.2009 of the Directorate present at running page 152 of the writ proceeding to submit that exercise of preparation of the final gradation list was in the light of the legal opinion received from the Department of Personnel and Administrative Reforms, the Law Department as well as the Finance Department.
23. Mr. [ENTITY] has also made reference to the circular of the State Government in the Department of Personal and Administrative Reforms dated 26.08.1972 enclosed at Patna High Court [CASE NUMBER] dt.19-03-2018 Annexure-C to the counter affidavit of respondent nos. 3 and 7 filed in the writ proceeding, to submit that it clearly stipulates that while determining the inter se seniority between the direct recruit and the promotee, the ad hoc service rendered would not be counted for the purpose of seniority as stipulated in paragraph 3 (ga) of the circular.
24. We have heard the learned counsel for the parties and perused the record.
25. Certain undisputed facts, as discussed, need to be reiterated because they go to the root of the matter.
26. The writ petitioners were appointed on ad hoc basis on 09.09.1986 vide Annexure-25 series to the writ petition. The appointment, though on ad hoc basis, was against the vacant sanctioned posts available in the Directorate of Handloom and Sericulture which is confirmed from the minutes of the meeting of the Establishment Committee of the Directorate dated 26.10.1991, more particularly paragraph 2, a copy of which is enclosed at Annexure R/2 to supplementary counter affidavit filed in appeal by the respondents writ petitioners.
The minutes at paragraph 2 of the meeting confirms that the appointment was on 06 posts against 36 sanctioned posts available in the Directorate, of [ENTITY], Senior Supervisor, Patna High Court [CASE NUMBER] dt.19-03-2018 Technical Assistant etc. The minutes confirms that these 06 writ petitioners were made to execute a bond of serving the government for three years after obtaining Diploma from the Indian Institute of Handloom Technology, Benaras.
The minutes confirms that even though the requisitions were made to the Sub-ordinate Selection Commission for filling up the 30 of the 36 sanctioned posts, 06 posts held by the writ petitioners were kept reserved for their regularization against those posts.
It is not in dispute that right since the appointment of these writ petitioners against the sanctioned posts albeit on ad hoc basis, they were allowed to continue uninterruptedly until a decision was taken by the Establishment Committee on 26.10.1991 for their regularization against those sanctioned post on which they had been appointed and were continuing.
When the relief was not forthcoming, writ petitioner no.1 moved this Court through [CASE NUMBER] while writ petitioner nos 2 to 6 moved through [CASE NUMBER] and vide judgment and order present at Annexures-3 and 4, respectively, to the writ proceeding, a learned Single Judge, taking note of the recommendation of the Establishment Patna High Court [CASE NUMBER] dt.19-03-2018 Committee dated 26.10.1991, directed the respondents to issue appropriate notification in terms of their recommendations of regularization of these petitioners against the 06 reserved sanctioned posts.
The orders dated 08.01.1997 and 24.01.1997 passed by this Court on the two writ petitions respectively, were not questioned before the superior forum and have not only attained finality rather were acted upon by the respondents themselves in issuing orders of regularization bearing memo no. 2186 dated 14.08.1997, insofar as the writ petitioner no.1 is concerned and order bearing memo no. 2185 dated 14.08.1997 insofar as writ petitioner nos. 2 to 6 are concerned, copies of which are at Annexures-5 and 5/A respectively.
A cursory glance of the order(s) of regularization would confirm two relevant aspects of the matter:
(i) It was in compliance of the order passed by this Court in [CASE NUMBER]; and
(ii) the regularization was granted from the date of initial appointment.
27. The services of these 06 writ petitioners, on regularization, were confirmed vide order bearing memo no. 2725 dated 14.10.1999, insofar as petitioner no.1 is concerned Patna High Court [CASE NUMBER] dt.19-03-2018 and vide memo no.922 dated 31.03.1999 insofar as other petitioners are concerned.
28. The ad hoc nature of the appointment of the writ petitioners thus assumed the character of a regular appointment by virtue of its uninterrupted continuity followed by the resolution of the Establishment Committee dated 26.10.1991 and the direction issued by this Court in earlier round of proceeding to culminate in the regularization order which regularizes their services with effect from their initial appointment and was against the sanctioned posts in the Directorate.
29. Now, in the admitted circumstances discussed above, where the State neither questioned the decision of the Establishment Committee dated 26.10.1991 of granting regularization to the writ petitioners from the date of their initial appointment nor questioned the judgment and order of the Writ Court in issuing a mandamus to implement the decision of the Establishment Committee dated 26.10.1991, rather having proceeded to regularize the services of the writ petitioners with effect from the date of their initial appointment, the confusion whatsoever as regarding the nature of post held by these petitioners stood resolved in the regularization order. The adhocism in the nature of appointment lost its effect and was Patna High Court [CASE NUMBER] dt.19-03-2018 replaced by the order of regularization which was held in continuity of the service of the writ petitioners. There may be reasons reserved for the respondents in keeping the issue of inter se seniority open for discussion later, but in our opinion, once the State had proceeded to grant regularization to the writ petitioners from the date of initial appointment, coupled with the fact that the appointment of the writ petitioners was against the vacant sanctioned post in the Directorate, there was no confusion remaining that they had a right to claim continuity in service.
30. The other aspects of the matter is that while the Establishment Committee of the Directorate advertised 30 out of 36 sanctioned posts, it kept 06 posts reserved for the writ petitioners because their regularization was under consideration. Meaning thereby these writ petitioners were not allowed to participate in the selection process initiated for direct recruitment in which the appellants herein did succeed and in our opinion rightly so, because even though these writ petitioners had been appointed on ad hoc basis, it was against the regular sanctioned posts under a bond which these writ petitioners were made to execute. In our opinion, until the publication of the gradation list showing the writ petitioners senior to the private respondents, who are appellants before this Court and Patna High Court [CASE NUMBER] dt.19-03-2018 who were borne in the cadre of the Directorate in the year 1997 i.e. after these writ petitioners had spent 11 years of their services, the Directorate had rightly shown the writ petitioners seniors to the private respondents.
31. Mr. [ENTITY] has relied upon two documents as referred above, in support of the final gradation list but just as the departmental head even learned counsel appearing on their behalf has shut himself from the legal position i.e. that there was no adhocism remaining after the issuance of regularization order which was made effective from the date of initial appointment. Had it been a case where the writ petitioners were regularized with prospective effect perhaps the circular relied upon by Mr. [ENTITY] as well as the reasons assigned by the Directorate at running page 152 may have warranted attention but it is rather surprising that even after the government has taken a conscious decision to abide by the recommendation of the Establishment Committee acting under the orders of this Court, to grant regularization to the writ petitioners from the date of their initial appointment which was questioned by none yet it is under the cover of ad hoc appointment which had paled into insignificance after the regularization order that they wrested the right of continuity from these petitioners to publish the final Patna High Court [CASE NUMBER] dt.19-03-2018 gradation list showing the appellants senior. The arguments, advanced by Mr. [ENTITY], learned Senior Counsel, appearing for the appellants, is sound on principles that ad hoc service followed by regularization, cannot provide the benefit of continuity, but the case in hand is distinctly distinguishable as in the present case the regularization has taken effect from the date of initial appointment and rightly so because the appointments were made against vacant sanctioned posts available in the Directorate.
32. The learned Single Judge has rightly observed in paragraph 15 of the judgment that though the order of regularization gives a retrospective benefit to the writ petitioners, yet was never appealed against by the private respondents, who had joined service by then. Obviously, the State, acting under the mandamus of this Court passed on the writ petition, could not have assailed its own decision.
33. Interestingly, [CASE NUMBER] is filed by the Department and this Court is yet trying to figure out the ground raised because having taken a conscious decision to grant regularization to the writ petitioners from the date of initial appointment and having expressed its tentative opinion on the inter se seniority between the writ petitioners and the private respondents by publication of the provisional gradation list Patna High Court [CASE NUMBER] dt.19-03-2018 where the writ petitioners were shown senior yet without disposing of the objection so received against the provisional gradation list by a speaking order that the appellant-State has reversed the seniority by putting the writ petitioners below the private respondents and the reasons are missing for such decision.
34. In our opinion, on the circumstances noted, an unwarranted delay by the respondents in determining the inter se seniority even where the stage was already set, has given a food for thought for the appellants to question the very existence of the respondent-writ petitioners. In fact, initially the respondents had proceeded in the right direction and the provisional seniority list was correctly drawn by the respondents appreciating the factual position existing but they got swayed by the circulars on treatment of ad hoc period, which had no bearing on the writ petitioners whose service had already partaken the character of regular appointment. The judgments relied upon by Mr. [ENTITY] in case of [ENTITY] as well as other judgments, referred to above, are judgments on the issue where the service of an ad hoc appointee is regularized prospectively and yet the appointee seeks the benefit of period of ad hoc service. In the present case, the regularization has Patna High Court [CASE NUMBER] dt.19-03-2018 taken place with effect from the date of initial appointment and thus those judgments would not be applicable in the nature of contest raised.
35. Insofar as the circular dated 11.06.1986 relied upon by Mr. [ENTITY] is concerned, in our opinion, it is too late in the day for the appellants to question the very appointment of these writ petitioners and even if there be any form of irregularity by the respondents in not following the advisory present in the circular dated 11.06.1986, the decision of the Establishment Committee dated 26.10.1991 which has been affirmed by the Writ Court vide judgment and order placed at Annexures-3 and 4 to the writ proceeding and has been acted upon by the respondents to issue the regularization order, the dispute as to the nature of appointment, is set at rest.
36. Before recording our conclusion on the contest, we feel persuaded to reproduce paragraph 15 of the judgment in the case of [ENTITY] (supra) which puts a quietus to the challenge:-
"15. Now if there was no binding rule of seniority it is well-settled that length of continuous officiation prescribes a valid principle of seniority. The question is: from what date the service is to be reckoned? It was urged that any appointment of a stopgap nature or pending the selection by Public Patna High Court [CASE NUMBER] dt.19-03-2018 Service Commission cannot be taken into account for reckoning seniority. In other words, it was urged that to be in the cadre and to enjoy place in the seniority list, the service rendered in a substantive capacity can alone be taken into consideration. We find it difficult to accept this bald and wide submission. Each case will depend upon its facts and circumstances. If a stopgap appointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, we see no justification for ignoring his past service.
In fact if once a person appointed in a stopgap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly unless a rule to the contrary is made. That has not been done in the case of all the petitioners.
In fact a fair rule of seniority should ordinarily taken into account the past service if the stopgap arrangement is followed by confirmation. This view which we are taking is borne out by the decision of this Court in [PRECEDENT] wherein this Court observed that the principle which has received the sanction of this Court's pronouncement is that "officiating service in a post for all practical purposes of seniority is as good as service on a regular basis. It may be permissible, within limits for Patna High Court [CASE NUMBER] dt.19-03-2018 Government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrary cut-off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts'. It was said that service rules will have to be reasonable, fair and not grossly unjust if they are to survive the test of [SECTION]. It is thus well-settled that where officiaitng appointment is followed by confirmation unless a contrary rule is shown, the service rendered as cofficiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list. Admittedly, that has not been done and the seniority list is drawn up from the date on which the approval/selection was made by the Public Service Commission in respect of each member of the service, which is clearly violative of [SECTION], and any seniority list drawn up on this invalid basis must be quashed."
37. For the reasons discussed above, we find no infirmity in the judgment and order passed by the learned Single Judge, Patna High Court [CASE NUMBER] dt.19-03-2018 requiring interference. The appeals filed by the appellant-private respondents as well as the appellant-State lack in merit and are dismissed accordingly, but without any order as to costs.
([ENTITY], J) ( [ENTITY], J) HR/-
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