if! the Courtof Hon'ble High Court of Chhattisgarh at Bilaspur (C.G.) Writ petition No...!5^°.(T^...../2004 'Ram Awadh Singh Bhadauriya Son of Mr B.S. Bhadauriya aged about 46 years posted as Senior Horticulture Development Officer at the Office of the Office Pendra Road Latpur Pgpdra Road Lalpur DistnctBilaspur'(C.G.) Petitioner ft^"^ 1. ^- /^' Versus jl^ ^< ^3/- State of Ch.hattisgarh through its Secretary Personnel and General Administration, D.K.S. Bhavan Mantralaya Raipur (C.G.) <2; Secretary Agriculturte4)epartment, D.K.S. s/~^6'~~' •/^,ly v^w /-..'h'-y /^•/ n- Bhavan Mantraiaya Raipur. Director, Udhyaniki Avam Prakshetra Vaniki ^? y >^ Diputy DirectoF^-Odbyaniki Avam Pfak-shefra ff .'V: «-!...'.].] 57^ Respondents. ^.- ^ GaBesh SinaR'yartya**ya» /^'^' s.SScess.i Office of the Assi.staat "fhE CONSTITUTION ^^ ^'^v ^' ^,^^^ Mahasansundtc.G.) '• A^*' 6i RaraakBnt Sv/arnkar s/^ Sulsi .Swarnkar, Address s Orfice of the Assi.s-teRt Dlreetor Udhy-an, Sistrist- Bilsspur (G.G.) Bambib&ri P^rihar s/o ?ran sincii', ^ •"I! •ff Asslstant clrgc-to.i- Udhyan, Distriet - Janjgir - ChampafC.G.) Sajkumar Jsin S/o BaariprBsad' -J-ain, Address s Office of ^)e Assi-s'fcant Birector Udhysa, aistricfe - •Ogritewadaie.G.) . aamkighore Sharma. S/o Mahadev Srasad Sharma, Address f'i fi^-A .~: —,..«i. jz ^.i^ ^. ^ .: .'. ..~^»t urr-Lae ?£ the Assi'S^sn'fc v ^ 1. j5-a 10} 11) ^u-ei-!ny...a(-3hyan< r)isu^s=?'-Taa'A'- • - SC.G.) ; '^-^^fy. .. ' Kahenara ;?rsta? Sina^ ,ChQuhaR s/b Sudarsban.SiB^i ^ioutian. - Aadress »Of£iee of ;t-he..Assistant Slrestor U-a^aP, ois.brict-RaipurSS Ajay S.i.ngta^Kusflwataa, S/b Shri. prafcash Singtt ,<5bwaha, sadresst Ofrice of the Assistawt Director . Udhyan, BistricteJsshpur ie.G.) Nagendra- Sinati. Patel S/^ ' Ramnath patel, Address i Offiee of the Assistaafe Director Udhyan, Oistrict - Korba (e.G.). 13) Samji Trivedi S/oKunjbihari, Address Offiee of the Assistant Blreefer uohyan. Sistri.st- Bllta3SSB.:C''.'i.C»G.»-).., . . . 12) ' 14} QissSxsS.ev' ^SiwSff'Si^o^ ^ . •Ra'tsayai.Sff^SSS^^KSaxsasf' . j Office ox •tehe-Assistaafe • ^ | DirsstopUdhyan* Bistrict^ | janjga.r (C«G.) Seesaj Kusiar Sbs'n. S/® D.P..Shab, Addresfi<0££i.ee.G: the Asststant; -Oirector Udliyan*. Biatri-et - Saipur<.CS; .6; KamSttss-Paiseh S/o aajaflhar PateX* Adaresss Office of •k-he ftssistant Oiceotor___ ?.7) ,*.ireEa3-Ruaar-:®isR"Si%- D.P.shab, Address; ofEtce o:. fehe Asststant' Director UtSiwati^ Bistric't - 8ai.E>ur(C: S'a^els S/b Gajs! PateXt hQdK'esss' OStics oS tfae Assistant Bireetor Udhyan, &5.strlct- K'Qrea(.e.C Rara Nihore Pandy 3/o Gorelal, Address t Offlce of the Assistaat Cirecfcor !? S'nyaa, Dls'trlet-Su rguj a {O; HaftQj Kv.iuei' Arabar S/o •Jaadish Prasad Ambaz'» Addfess s Offioe o£ the Ass.ls'fcant Director Cdhyaa, 19) Viraal Kumsr Gaat.am S/o Harvada, Adaffess*- Q.ffios f ^U^&'S.Si ti S ^t£J^ ?^"i Nldhan Siogh Kushwai'ia», S/o Ss'neas^ sadressg Offlce of tfte Asslstant 'Director O'dhyan. CAstriet. S^ah'jav.v ,{C»G '-».^~?» f&z-, U!SH COURT OF CHHATTiSGARH AT BiLASEUB SiNGLEBENCll-L: HON'BLE MR. SATiSH K. AGNIHOTRi, J. WRiT PETITION NO.S013 OF 2004 Ram Awadh Singh Bhadauriya versus State of Chhattisgarh and others 5 ORD6R Postfor / -12-2006 Sd/- satish K Agnihotri Judge J 0-11-2006 ^ •S /•''o. S1NGLE BENCH : HON'BLE ?flR. SATiSH K. A ST PETiTlON N0.5013 OF 2004 Petitioner versus Ram Awadh Sln.gh Bhadaurive ^^"t-i's'l'^'f^ni'aF'ii <ii»*i;:<3 .nk—i^.n'••'"'> •Si t^f ^/Sl.5l<3iUitsy<ai ;i CiiJ;a3 wlii^-S Mr. Anii Ssngh Rajput, counsei for ihe petiiloner. Mr. Sushii Dubey, Governmeni Advocate for respondents No.1 to 4. Mr. Akhilesh Dalpati, counsei for respondent No.S. Mr. H.S.Patei, counsel for respondent No.9. Dr. N.K.Shukla, Senlor Advocats with Mrs. A. Sengupis, counsei for respondent No.16. (Passed on 1 of Dei The prssent petition fiied under Artlcies 226/227 of the Constitution of India ssete a directson to determine ssnioriiy by flxing ths ssniority of the pstitioner with effect from 30-11-1985 (Annexure P-3). 2. The facts in nutshei! ars that according to the petitioner. the petitjoner was appointed as Senior Horticuiture Deveiopmsnt Officer by order dated 30-11-1985 (Annexurs P-3). Thereafter, the petstioner was sslected through Madhya Pradesh Junior Ser.'ics Seiection Soare Sfc Mlni Service Seiection Board), Bhopal as per notificatiors dateci ^' "••- (W^ 10-1989 and was appomted as Senior Horticurturs Deveiopmern* O^?;"'.'-.^ t'i. ^^iIiiirfS-i on probation for a period of Swo years by ordsr datsd 28-10-1989 (Annexure P-4). The name of ths petitioner in ths ssnio'-lty !ls': (Annexure P-2) was shown at Sl.No.15 taking ths date of first appointment as 31-8-1982 and entr/ Into the sen,'tee on 16-12-19S£. Thsreaffer, on the basis of reprssentations, amendsd fina! seniority list as on 1-4-3003 (Annexure P-1) was Issued, whsrein the r.s.ms of fhe petitioner was found at SI.No.29, whsrein the dats of firet sppolntriien'i was recorded as 28-10-1989 and the date of eniry in serolce was alsc. rscorded as 28-10-1989. 3. Besng aggrieved by the amended fina! seniority iist as o"'. 1-4-2003 /-MinwA P-1), the peti{ionsr has fiisd this petition sesking s writ/directlon to respondents No.1 to 4 to assign the s©niontyof ths petiftoner with effect from 30-1 1 -1985. 4. Mr. Anil Singh Rajput, Isarnsd counsei appsaring for the petitioner would subn'itt that the petitioner was appointsd on 30-1 "-I935 for a period of 8 months or tiil a duiy seiected candidats through ihe Junior Service Setection Board Is appointed. The pstitioner con'Bnued In seroice tili he was selected by the Junior Sen/ice Seisstion Board through notificaticn dated 17-10-1989 and was appointed by ordsr dated 28-10-19% (Annexure P-4). Thus, the petltionsr is entltied to seniority with effsct from the date of his first appointment, i.e., 30-11. 1985. 5. '. Sushil Dubey, iearned Govemment Advocaie appearing for respondents No.1 So 4, percontra, would submit that -ihe 'io 'v pefifioner was appointed for the first tlme m accordance with .!aw through the Junior Service Seiection Board by order dated 28-10-1939 (Annexurs P-4) on the basss of ths notification of the Junior Ser»ice Seiection Board dated 17-10-1989. The eariier appointment of '";he petitionsr, vlde order dated 30-11-1985 (Annexura P-3), was not In accordance with !aw by invlting ail the eligibie candidates for ihs sslection. By order dated 30-11-1985 (Annexure P-3), fhe petitioner was appointed on a term basis for a psriod of six months or till a n®w iricumbent is appointsd through proper seiection by ths Junior Ses'vice Selectlon Board, whtchevsr is sariler. It is 'true that the petitlonsr eontinued in service. However, the petitioner has no right on the post as the appointment of ths petitioner was not in accordance with constitutional scheme or any ruiss framed under proviso to Artlc!®309 of the Constitutlon of india. His first appointment, in sccordance wlth law, Is by order dated 28-10-1989 (Annexure P-4). Thus, the petlconsr has rightiy been granted seniority with effect from 28-10-1 S39. The seniority ifet at Annsxure P-2 contalrss severa! typographical and o'lher errors as the dats of first appointment of the petitsoner, i.e., 31-8-1982 and the dat®of entry in seroice 16-12-1985 have no rsisvance in sase of the petitioner as he was never appointed sn any capacity teiriporapi', ad hOG or otherwise on 31-8-1982 and thereafter eonfirmed in ssrvics on 16-12-1985. 8 All the respondents havs been duly served. Mr. Akhitesh Daipati, learned counse! appearing for respondent No.6, Mr. H.S.Patel, iearned counse! appearing for respondent No.9 and Dr. N.K.Shulda, learned Senior Advocate wlth Mrs. A. Sengupta, iearned counsei appearing for respondent No.16 adopt the submissions msde by A-^; rsspondents No.1 to 4 and rsmaining respondents did not chooss v appear in She matter despite proper sen/lce. 7. I have heard Isarned counsei appearing for ihe parties and perused the records. It is evldent that Shs seniority list (Annexure P-2) contains several mistakes as the date of first appointm'snf of ths petitioner, i.e., 31-8-1982, mentioned againstthe name ofths petitloner, has never taksn p!ace and even the confirmation in the sen'ice as mentioned on 16-12-1985 has also never taken piacs and this is not ths case of the petitioner also that he was appointed on 31-8-1982. Th® case ofthe petitioner is that he was appointed on adhoc basis by orssr dated 30-11-1985 (Annexurs P-3) for the firet time and not prior to that. The first appointment of the petitioner by order dated 30-11-1985 (Annexure P-3) is admitted!y not in accordance with iav/ anei it was a sfop gap arrangement appointment for a period of six months or ti!! nsv/ eandidate is appojnted Shrough proper ssiection by the Junisr Servics Selection Board, whichever is eariier. Since the pstitioner's first appointment by order dated 30-11-1985 (Annexure P-3) was not in accordance wth iaw, this period cannot b®taken into consideration for determining the seniority of th'e petitioner v/ith effect frorn 30-11-1985. The peiitioner was ssiecied through the Junior Service Seiec'aon Board by the notification dated 17-10-1989 and was appointed by order dsted 28-10-1989 (Annexure P-4). Thus, the seniority ofthe psiitlonsr can be reckoned from 28-10-1989 only. Even in the order dated 28-10-19i (Annexure P-4), there is no mention of eariier appointment of 'lhe petitioner as stop gap arrangsment and the appolntment was nct in continuation ofthe sarller stop gap arrangement appolntmsnt on 30-'11' 1985 (Annexure P-3). !' o/'T 8. in the case of D!rect Rscrwt C/sss I! EngiRsering Ofijcers' Assoc'at'son vs. Stave of Maharash'ti'a and others , reiied on by iearned counsel for the petltioner that the pressnt case is governed by the dictsjm iald down by ths Constitution Ber.ch Ssi •;:hs cas® are squarely applicable to ths fscts of the pressnt case, the Supi'ems Court obse"i/ed as undsr :• "47. To sum up, we 'nold t'nat (A) (S) (C) (D) (E) (" n\"/ c r Once an Incumbent is appoint.sd to s post according to ru'e, his seniority has to 'os counted from the date of his appointmsrit anci not accordina to the date of hls confirmatio". The coroiiary of fhs above 'ule is that where ths initia' appointment is on!y ad hoc and not according to rulss and made as s stop-gsp arrangement, the officlation in such post cannot bs taken into account ?or considering ths ssnlority. !f the initial appointment is not mads by ?^!3 fhffi i' I?'.A ^ii^ iUi-S i'di^ by the ruies but the appointee continues in the post uninterruptedly til' the regularisation o'f his service in accordancs with the ruies, the osrlod of officiating sewice wili be counted. xxxxx xxxxx xxxxx xxxxx 1 i Sj -'\j>'' xxxxx xxxxx Ty-W-^-.-l./ AAAA/t. -^T\f\f\f\f AA.A^-k.A. xxxxx xxxxx xxxxx ^vwif ^V/^^Vf-Vt. V. /\/'l,^'i^\. xxxxx xxxxx xxxxx X»30( xxxxx yL/</WTi /\jrVtT\.r»..''L \f\f\r\.'\]' /VAAAA. xxxxx )0(XXi; XX»3; XXXK; •U'1/Tt-r'.~k.f AAA/i-.-k. \f\r\r^<-tf ^^J'\f\f\ VT.fvn.?"*-/ .-t.'T.^-tJ-^-V i/'vv^v-i./'3 >\^.f\^\^. n^ in tne case f athe-s vs. Siate ofJ&K and others , ths Supreme Couri: heid as under :• "75. Thess ruiings cannot be applisd to the csss of the prorrsotess. tn fact the principls !aid do'A'n in thess cases Is consistsnt wlth the principies in service jurisprudence so far as the sd hoc ser/ice rendered by direct recruits befors ths dat®of thsir reaular seiectlon is concerned. Thetr sen/lce counts oniy from the date of reguiar appointmsni accordlng to rules and any ad hoc/stopgap ser/ice rendered before reaular seiection cannoi coun't for seniorify." "81. This contention, in our view, cannot be accepted. The reason as to why this argumen't is wrong is that In sen/ics jurisprudence, a dirsct recruit can ciaim seniorlty only from the date o° his reguiar appointment. He cannot ciaim senio'ity from a date when he was not borne in th®seroice. This prindpie is weil sett!ed. tn N.K. Chauhan v. Stete of Gujarst'4 (SCC at p. 325, para 32) Krishna lyer, J. stated: Later dlrsct recruits sannot ciaim deemed dates of appointment for senterit),' w'th effsct from the tlms when direct recruitrnent vacancy arose. Seniority vi/i'i depend iipon lengthofsarvies. Again, in A. Janardhana v. Union of India" it vras heid that a !atsr direet recrult cannot ola'm seniority from a date before his birth in the seivice or when he was in school or co!!sge. Simiteriy it v.'as pointed out in A.N. Pathak v. Secy. fo the Govt/' (SCC at p. 787 that slots eannot be kspt \<y .\ ; reser/ed for direct recruits fcr retrospecfivs 10. In the case on hand, the petltioner was appointsd as stop gap arrangement by order dated 30-11-1985 (Annsxure P-3). Ths appointment was fortuitous appointment as it was neither in accordance i n ii £=f- with law nor against a substantive vacancy. The Supreme Court, In Ganesh Rao Patnask and others vs. Stste of Jharkhanc! and others , expiains fortuitous appointment as under:- "22. ...............What is a fortuitous appointment has been expls.insd in a Constitution Ben.sh dscision of this Court in Riidra Kumar Sain v. Union of indla0. After observing thai the Rules in question did not define ths tsrms "ad hoc", "stopgap" and "fortuitous", 'A'hich are in frsqusnt use in sen/ice jurisprudence, the Court referred to severa! dictionaries. The meaning given to the sxpressfon "fortuitous" in Stroud's •Judwia' Dictionary i.s "accident or fortustous casualty". This should obviously connote that if an appointment Is made accidentai'ly, because of a particuiar smergent situation, such appointment obviously would not continue for a rsasonably long period. In Black's Law Dictionary the sxpression 'fortuitous" means "occurring by chancs", "a fortultous evsnt may be highiy unfortunate". !t thus indicates thaf it occurs oniy by chance or accideni, which could not have been reasonably foresesn. In Oxford Dsctsonary ths msaning glven to 'ihe word "fortuitous" is, happening by accidsnt or chance rather than design. ..............." 11. The facts ofthe present case are covered by ths dictum OT the Supreme Court as said down in Dirat ri-SS^S Ui.1. ~^3i3- S S£ Engmeering Officers' Assaciation vs. State of Maharashtra and Gthers (Supra). The appoantment ofthe petitionsr was not o" basls nor on ad hoc, but as a stop gap arrangement not in aceordance with the rules. Thus, the petitloner was not borne in ihe sen/ice tiii hs was appolnted by ths Junior Service Selection Board by order da'ted 28-10-1989 (Annexure P-4). i2. A Constitution Bench of the Suprem®Court in Secretar/, State of Kamataka and othws vs. Umadevi {3} and cthers , h®idas under:- "43 of of Thus, it is clear that adherence to the rule riity in public smpioyment is a basic feature Constitution and since the ruls of law is the of our Constitution, a court wouid csrtainly 3e sr uphoiding a violation ofArticis 14 or in ordering the overiooking of the need to comply with the requirements of Articie 14 read wlth Article 16 of the Constltution. Thersfore, consistent with She schsme for pubilc empioyment, this Court whlie iaying down the law, has necessarily to hoid that uniess the appointment is in terms of the relevant ruies snd after a proper ccmpstition among qualifisd persons, the same would not confer any right on the appointee. ..............." 13. As a rssuit, for the reasons made hereinabove and In view of the authoritative judiciai pronouncements made by ths Supreme Court in various cases, thls petition is dismissed. No ordsr as to costs. Sd/- satish K.Agnihotri Judge /-12-2006 (1990) 2 SCC 715 (2000) 7 SCC SS1 (2005) 8 SCC 454 (2006) 4 SCC 1