IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5871 of 2001 CHALUVADI VENKATA SUBHA RAO Versus THE STATE OF BIHAR & ORS ----------- CWJC No.6024 of 2002 SUSHIL KUMAR RANA Versus THE STATE OF BIHAR & ORS ----------- CWJC No.9255 of 2002 SUJIT KUMAR MUKHOPADHYAY Versus THE STATE OF BIHAR & ORS ----------- For the Petitioners: Mr Binod Kumar Kanth,Sr.Advocate Mr Chitranjan Sinha,Sr.Advocate Mr Bipin Kumar Sinha For the State : For Respondent no. 5: Mr Y.V.Giri,Sr. Advocate For Respondent no. 6: Mr Tara Kant Jha,Sr Advocate ------ 7- ….08.2008 In the tussle for inter se seniority between the petitioners and the private respondents the core issue for determination is whether seniority has to be determined inter se counting the earlier period of service rendered in ad hoc capacity after coming into force of the Bihar Gazetted Officers Ad hoc Appointments Regularization Ordinance ( Act No. 4 of 1987), (hereinafter referred to as „the Regularization Act), or, shall the inter se seniority be determined on basis of an earlier recommendation made by the Bihar Public Service Commission in pursuance of an advertisement and selection process in which the parties participated, prior to the coming into force of the Regularization Act. An advertisement was issued in 1975 for appointment of Drug Inspectors on ad hoc basis for six months or till the recommendation of the Bihar Public Service Commission whichever is earlier. The ad hoc 2 appointment continued by grant of extensions. Advertisement No. 6 of 1977 was then issued by the Bihar Public Service Commission in pursuance of a requisition dated 19.8.1975 by the State Government for appointment on 23 posts of Drug Inspectors. The petitioners and the private respondents also applied. The Commission made its recommendation on 19.9.1977 as contained in Annexure 2. The case of those who had passed the Pharmacy Examination from the Birla Institute of Technology, Mesra, Ranchi, was not considered. The matter traveled to the Apex Court in Civil Appeal No. 791 of 1981. By order dated 6.8.1986 the Apex Court directed that they were also required to be considered on the basis of Advertisement No. 6 of 1977. A fresh recommendation dated 7.10.1986 then came to be made as contained at Annexure 5. In the meantime while the issue of appointment under the 1977 Advertisement remained in abeyance being subjudice, a fresh advertisement was issued in the year 1979 by the official respondents for appointment on the post of Drug Inspectors on ad hoc basis. Respondent no. 5 then came to be appointed by a notification dated 8.12.1979 on ad hoc basis for six months or the receipt of recommendation of the Bihar Public Service Commission whichever be earlier. The name of respondent no. 5 also found place in the list of recommendation made on 7.10.1986 under the 1977 advertisement. While the matter rested at this stage the Regularization Act (Ordinance No. 32 of 1986 dated 29.10.1986) was promulgated. The respondent State then issued an order regularizing the services of Drug Inspectors working on ad hoc basis since 1975 to 1979 from the dates of their appointment. The notification dated 27.2.1987 at Annexure 7 clarified that the names were not arranged in order of seniority 3 and that no claims for seniority shall lie on basis of their placement position in this list for regularization. That inter se seniority shall be determined subsequently. Sections 3, 4 and 6 of the Regularization Act are relevant for the present controversy and are therefore quoted hereinafter:- “3. Regularisationof the ad-hoc apopointments- (1) All ad –hoc appointments made by direct recruitment to any of the gaxetted posts by the Stgate Government which were continuing on such ad –hoc tempoarary basis upto the 30th June,1986 are excluded from the purview of the Commission regarding any of the matters mentioned in sub-clauses (a) and (b) of Clause (3) of Article 320 of the Constitution of India. (2) Notwithstanding any judgement, decree, order, direction, writ and prohibition issued by any Court or Tribunal against ad-hoc appointment of gazetted officer, the services of all gazetted officers appointed on ad-hoc temporary basis up to the 30th June 1986 and are continuing in service are regularized and their appointments shall be deemed to be made on regular basis with effect from the date of their appointments. 4. Savings. – Notwithstanding any law, rule or regulation regarding the recruitment to the gazetted posts in the State, the ad- hoc appointments of the gazetted Officers shall be deemed to be regular and valid from the dates of their appointments. 6. The provisions of this Ordinance shall not affect the appointments made to any gazetted posts in the State through the Commission before the commencement of this Ordinance.” A tentative gradation list reflecting inter se seniority for the Drug Inspectors then came to be published on 16.11.1987 and which was finalized dated 18.5.1993. This was challenged by one of the petitioners (CWJC No. 5871 of 2001) by filing CWJC No. 7957 of 1993. Though this 4 Court in its order dated 4.2.1998 noticed the defence of the official respondents that inter se seniority had been fixed on basis of the merit list of recommendation by the Bihar Public Service Commission it disposed of the writ application in the following terms:- “Be that as it may, this Court finds that in the final gradation list which has been prepared there is no separate column made for the date of birth, date of appointment and date of confirmation etc. which are the normal features of the seniority list”. Directions were then issued to prepare the seniority list accordingly. On 22.12.1999 a fresh provisional inter se seniority list was published inviting objections whereafter the final gradation list dated 27.2.2001 came to be published, presently assailed as contained in Annexure 13. The inter se seniority was determined on basis of the recommendation dated 7.10.1986 made by the Bihar Public Service Commission in pursuance of the orders of the Apex Court noticed above to redraw the same under Advertisement No. 6 of 1977. An executive instruction dated 15.7.1971 bearing no. 3/R/1- 105/71/12106 of the a Appointment Department, Government of Bihar states that ad hoc service shall not be counted for seniority. Seniority shall be determined in the manner of recommendation made by the Public Service Commission on merit. Ad hoc period of service shall not be taken into consideration for seniority. On 21.12.1989 statutory rules under Article 309 of the Constitution of India were framed for appointment on the post of Drug Inspectors, Bihar State Drug Control Service (Appointment and Service Conditions) 5 Rules 1989. Rule 3 and Rule 25 provide that appointment shall be made on recommendation of the Public Service Commission and that inter se seniority shall be determined in accordance with the merit list furnished by the Public Service Commission. Learned Senior Counsels Shri Chitranjan Sinha and Shri Binod Kumar Kanth, appearing for the petitioners submitted that though the petitioners may have been appointed on ad hoc basis initially in view of the promulgation of the Regularization Act deeming them to have been appointed in the regular establishment from the date of their ad-hoc appointment, the inter se seniority has to be fixed from such deemed date of regular appointment in 1975. Respondent no. 5 not having been appointed under the 1975 advertisement but under the 1979 advertisement had to be placed below the petitioners. Respondent no. 6 though appointed under the 1975 appointment had to be placed below the petitioner in CWJC No. 5871 of 2001 inasmuch as the merit position of the said petitioner in the ad hoc appointment order dated 19.9.1975 was at serial 1 while the latter was at serial 11 and in any event if the date of appointment be the same the said petitioner was senior in age. The respondent State had therefore rightly issued the inter se seniority list dated 27.2.1987 and which correctly reflected the inter se seniority of the parties. Section 6 of the Regularisation Act shall include only such cases where appointment had been made in pursuance of the recommendation of the Commission. Reliance was placed on (1993) 3 Suppl. SCC 181 for meaning of the word “Appointment”. That the Commission had no jurisdiction to fix inter-se seniority. 6 Shri Y.V.Giri, learned Senior Counsel for the private respondents 5 and 6 contended that the claims of the petitioners for regularization from the date of their initial appointment in ad hoc capacity under the Regularisation Act was entirely different matter from that of inter se seniority, to be determined on basis of the recommendations made by the Bihar Public Service Commission. In any event, the Regularisation Act has come later than the recommendation. With reference to Section 3 of the Regularization Act it was submitted that it is only such ad hoc appointments which were not the subject of a selection process or recommendation of the Commission which were directed to be regularized. On the date that the Ordinance was promulgated i.e. 29.10.1986 advertisement No. 6 of 1977 had already been published, the process of selection had commenced, recommendations had been made on 19.9.1977 but which only remained in abeyance till 7.10.1986 to be revived from 1977. The matter therefore clearly fell under Section 6 of the Regularisation Act and inter se seniority had to be determined on basis of the recommendation of the Bihar Public Service Commission. Section 6 could not be read narrowly to exclude cases only where appointment letter had been issued before promulgation of the Regularisation Act, but it shall include those cases where the process of selection had also commenced and recommendation made before promulgation of the Regularisation Act. Shri Giri urged that the period of ad hoc service cannot be counted for purposes of inter se seniority for reason of the government instruction dated 15.7.1971 noticed above and the statutory rules dated 21.12.1989 under Article 309 of the Constitution of India. Reliance was placed on the judgment of the Supreme Court in 2003(10) SCC 513, (Santosh Kumar & 7 others Vrs G.R.Chawla & others), for the scope of the Regularisation Act. Additionally it was urged that the relevant date for determination of inter se seniority would be the law as existing on the date that the Advertisement No. 6 of 1977 came to be issued. The subsequent enactment of the Regularisation Act cannot take away or divest the fixation of inter se seniority. He relied upon 2008 (2) SCC 1999. The petitioners voluntarily applied under the 1977 advertisement and participated in the selection process. Now that their inter se seniority was threatened they cannot turn around and challenge the same. In any event the petitioners had not challenged the recommendation dated 7.10.1986 of the Commission and the seniority position of the petitioner fixed below private respondents. In the absence of statutory rules, executive instructions hold the field. On 15.7.1971 the State Government in the Department of Appointment issued a notification with regard to fixation of inter se seniority. It directed that inter se seniority was to be determined in the seriatum of the recommendation made by the Public Service Commission. If a person was appointed on ad hoc basis prior to regular appointment the period of ad hoc service was not to be counted for the purposes of seniority. The petitioners and the private respondents had been appointed in ad hoc capacity for a period of six months whether it be in the year 1975 or 1979 in so far as respondent no. 5 is concerned. The appointment order itself stated that the appointment was for a period of six months or approval of the Bihar Public Service Commission whichever is earlier. That this ad hoc appointment may have continued beyond a period of six months will not change the fortuitous nature of the appointment and no 8 benefit can be derived there under to claim the benefit of seniority for this period of fortuitous appointment. In AIR 1992 SC 1188 (Union of India Vrs Professor S.K.Sharma) the respondent was allowed seniority by the Tribunal counting the entire period of his continuous ad-hoc appointment from 28.6.1969 to 29.9.1973 when he was regularly selected for the post after interview by the Public Service Commission on 29.9.1973. It was held by the Apex Court that the period of ad-hoc service was not to be counted for seniority but only from 29.9.1973. At this stage it cannot be lost sight of that in 1989 statutory rules had been also framed under Article 309 for appointment on the post of Drug Inspector on the recommendation of the Commission. The petitioners and private respondents were applicants under the 1977 advertisement issued by the Commission. Their names except respondent no. 5 figured in the recommendation dated 19.9.1977 in order of merit. However, non consideration of the name of respondent no. 5 on the ground of his Pharmacy qualification from BIT Meshra at Ranchi led to the final order of the Supreme Court in Civil Appeal No. 791 of 1981 on 6.8.1986 when after hearing all the parties including the petitioners, the Bihar Public Service Commission was directed to prepare a fresh merit list for advertisement No. 6 of 1977 and a fresh recommendation came to be made on 7.10.1986 in order of merit. This recommendation is not under challenge by the petitioners. The Court has no difficulty in holding that the question of inter se seniority of the parties has to be determined in order of the recommendation on merit made on 7.10.1986 which shall be deemed to be one as on 19.9.1977 for the purposes of the present controversy for determination of inter se seniority. Whether the recommendation be 9 deemed to be of 7.10.1986 or 19.9.1977, in either event it is of a date prior to the promulgation of the regularization ordinance (later Act) on 29.10.1986. The issue that no letter of appointment had been issued in pursuance of such recommendation and therefore Section 6 of the Regularization Act had no application is of little avail. Admittedly no letter of appointment has been issued to either of the parties, presumably as the battle for fixation of inter se seniority has continued unabated. To accept the extreme position of absence of any letter of appointment will only create an anomalous position for the contestants making their service career even more precarious and perhaps loosing out on benefits. If fortuitous appointment be not admissible for seniority, the Regularisation Act not covering inter se seniority and there be no appointment order after recommendation of the Commission, what shall be the criterion for fixation of inter se seniority. The Court has therefore no hesitation in holding that the date of appointment for the purposes of fixation of inter se seniority shall be deemed to be the date of recommendation. In any event, the recommendation has been accepted and acted upon by the State Government and it is no one‟s case of discretion today in the respondent State to accept or reject the recommendation. The contention of the petitioners that by virtue of the Regularisation Act they shall be deemed to have been in service with effect from the date of their ad hoc appointment in 1975 and given inter-se seniority accordingly does not impress the Court. It has already been noticed above that this appointment was fortuitous, in ad hoc capacity for a specified period. Executive instructions already held the field for such appointments on recommendation of the Commission and in which order 10 of merit inter se seniority was to be fixed. The Regularisation Act only provided the status of permanency as distinct from the precarious nature of the initial appointment. It did not provide for grant of seniority from the date of such regularization. Therefore, to contend that in terms of Section 3 of the Regularization Act, the appointment of the petitioners went beyond the purview of the Commission cannot be accepted. The issue of regularization cannot be confused with the issue of inter-se seniority. On the contrary, if the provisions of Section 6 of the Regularization Act be read in the manner as discussed above, the recommendation of the Commission had already been acted upon prior to coming into force of the Regularization Act. To read Section 6 narrowly shall be counter productive. The Government Order dated 27.2.1987 is not reflective of inter se seniority as contended on behalf of the petitioners. It only signifies those who have been regularized under the Regularization Act. The last paragraph of the order itself qualifies that the issue of inter se seniority was to be determined separately and no claims for the same would lie on basis of the document. In the case of Santosh Kumar & others (Supra) relied upon by respondents 5 and 6 a similar issue arose before the Supreme Court in context of the U. P. Regularisation of Ad-hoc appointments (on posts within the purview of the Public Service Commission) Rules 1979. In 1980 the Uttar Pradesh Government framed the U.P.Inspectors of Drug Service Rules, 1980 providing for direct recruitment to posts of Drug Inspectors through the Public Service Commission. A requisition for appointment sent in the year 1976 followed by an advertisement when departmental candidates also applied resulted in a recommendation of the Commission on 14.10.1981 which included 11 11 candidates already working as Drug Inspectors on ad hoc basis since earlier. The contention on behalf of the ad hoc appointees for inter-se seniority was that the period of ad hoc service had to be counted as their regularization preceded the appointment of directly recruited persons and therefore they were to be placed above them in the seniority list. That those regularized had been continuing in service. Placing reliance on 1990 (2) SCC 715 (Direct Recruit Class II Engineering Officers Association Vs State of Maharastra), presently also relied upon by the petitioners, it was urged that the ad hoc service had to be counted for the purposes of seniority. The Supreme Court upheld the determination by the High Court of Judicature at Allahabad that the ad hoc appointment cannot be deemed to be a substantive appointment. That it was in the nature of a stop gap or fortuitous appointment and hence the period of such ad hoc work could not be counted for purposes of seniority. The contention that under Rule 4 of the Regularization Rules they are to be regularized first and then the case of new appointees considered was expressly rejected. The date of recommendation shall be deemed to be the date of appointment. If that be so, Section 6 of the Regularization Act comes into operation. In any event the Regularization Act only provided permanency and did not provide for benefit of seniority. The order dated 27.2.2001, presently impugned proceeds to fix inter se seniority on basis of the merit list of recommendation made by the 12 Bihar Public Service Commission. For reasons as discussed hereinabove this Court finds no infirmity in the same requiring interference. Snkumar/- The writ applications are therefore dismissed. (Navin Sinha,J.)