HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 1236 of 2003 (SS) Dr. Chandra Shekhar Pathak & others vs. State of Uttaranchal Approved for reporting. _______________________ Not approved for reporting Date of decision. 23.10.2003 Initial of Judge HIGH COURT OF UTTARANCHAL AT NAINITAL. Writ Petition no. 1236 of 2003(SS) Dr. Chandra Shekhar Pathak & 32 others …..… Petitioners Versus State of Uttaranchal & others ………. Respondents Sri K. N. Joshi, Advocate for the petitioners Standing Counsel for the respondents. Dated:-23.10.2003 Hon’ble Rajesh Tandon, J. The petitioners have filed the present writ petition praying for a writ order or direction in the nature of mandamus directing the respondents to give seniority to the petitioners from their initial date of appointment. Brief facts giving rise to the present writ petition are that petitioners were appointed in the Education Department in different pay scale in different schools and colleges against the posts under the preview of Public Service Commission. The petitioners are working in the Department from the date of their appointments. The details of the appointment and regularization has been submitted by the petitioners in their supplementary affidavit. The list is given as under: S.N. Name of teacher Initial date of appointment Date and order no. of regularization 1. Dr. Chandra Shekhar Pathka 15.12.1979 Lect/209/23-3(48)/2/ 86-87 dated 16.2.87 2. Umesh Chandra Pandey 24.4.1970 L.T/477-977(143)80- 81 dated 4.8.81 3. Jiwan Chandra Kothari 9.11.1971 LT 14295-405/23- 4/143/80-81 4. Trilok Singh Mehta 15.11.71 LT8/23-3(143)86-87 dated 5.6.86 5. Madhwanand Lohni 21-11-72 LT 477-977-23-4 (143) 80-81 dated 8.4.81 6. Smt. Hema Pandey 29.8.72 2/433/23-29/47/8/81 82 dated 5.9.81 7. Narayan Singh Bisht 9.12.74 LT 9932/23-4(143) 81-82 dated 20.8.81 8. Dev Singh Karki 28.9.76 LT/8/23(143) 86-87 dated 5.6.86 9. Triloki Chandra Pandey 2.2.76 LT 8-23-4 (143) 86- 87 dated 5.6.86 10. Kailash Chandra Pandey 4.1.76 LT/8/23-4 (143) 86- 87 dated 5.6.86 11. Purna Chandra Pant 28.4.76 LT/8/23-4 (143) 86- 87 dated 5.6.86 12. Ravindra Singh Mehta 19.8.76 LT/8/23-4 (143) 86- 87 dated 5.6.86 13. Basant Ballabh Joshi 23.8.76 LT/8/23-4 (143) 86- 87 dated 5.6.86 14. Rajeev Kumar Pandey 14.11.77 Lect/209/23-3 (48) 86 87 dated 5.5.86 15. Narayan Dutt Bhatt 31.10.79 LT/96/5-2 (3) 90-91 dated 1.12.90 16. Pratap Singh Mehta 26.12.79 G.O./1996, 5-2 (3), 90 91 dated 1.12.90 17. Madan Mohan Pandey 14.3.80 Lect/209/23-3(48)/2/ 86-87 dated 1.12.90 18. Chandra Shekhar Bhatt 7.3.81 1174/5-2(3) 85-86 dated 7.3.86 19. Girish Chandra Pant 14.11.79 G.O./1996/5-2(3)/90- 91 dated 1.12.90 20. Umesh Chandra Pant 24.8.81 G.O./1996-2)3/90-91 dated 1.12.90 21 Devendra Kumar Joshi 19.7.90 Lect/3331-3581/1999- 27.12.99 22. Prayag Singh Rawat 24.7.90 Lect/3331-3581/99- 2000 dated 27.12.99 23. Smt. Chandrakala Karki 16.8.90 G.O./99-2000 dated 28.12.99 24. Km. Asha Joshi 20.8.90 G.O.(2)/224/23-2/99 2000 dated 27.12.99 25. Shatrughan Lal 25.8.90 Lect/3331-3581/1999 2000 dated 27.12.99 26. Smt. Kamla Tamta 16.8.90 G.O./666/99-2000 dated 28.12.99 27. Diwan Singh Bisht 12.10.90 G.O. 783/99-2000 dated 31.12.99 28. Govind Singh Bora 27.11.99 G.O. 758-2001-2002 dated 5.3.2002 29. Rajeev Kumar Diwedi 26.12.90 G.O. 758/2001-2002 dated 5.3.2002 30 Smt. Meena Mehta 10.1.91 G.O./758/2001-2002 dated 5.3.2002 31. Nathu Ram Joshi 3.4.91 G.O./758/2001-2002 dated 5.3.2002 32. Prem Singh Dhami 9.12.91 G.O./Lect, 3843-3997 2002-2003 Dated 9.9.2002 33. Smt. Parvati Devi 17.2.92 Lect/45/2002-2003 dated 9.5.2002 By the notification No. 19/8/75-Karmik 1-1 dated 14th May 1979 called as U.P. Regularisation of Ad hoc appointment (Out side the preview of Public Service Commission). By the said notification employees who were appointed before 1st January 1979 and have completed more than three years of service were directed to be regularized by Departmental selection Committee. The aforesaid notification dated 14th May 1979 was further extended to the employees who were appointed up to 1st May 1983 and as such they have become entitled for regularisation. On 7.8.1989 cut of date was further extended and the employees who were appointed on or before 1.10.1986 they have also made entitled to be regularised. Rule 4 of U.P. Regulation of Ad Hoc Appointments (on posts within the purview of the Public Service Commission) Rules 1979: rnFkZ fu;qfDr;ksa dk fofu;ferhdj. n` 1- fdlh O;fDr dh- ,d- tks lsokes 1-1-1977 ds iwoZ rnFkZ vk/kkj ij lh/ks fu;qDr fd;k x;k gks vkSj bl fu;ekoyh ds izkjEHk ds fnukad dks ml :I esa fujUrj lsokjr gks] nks- tks ,slh rnFkZ fu;qfDr ds le; fu;fer fu;qfDr ds fy;s fofgr visf{kr vgZrk,sa j[krk gks vkSj rhu ftlus rhu o"kZ dh fujUrj lsok iwjh dj yh gks ;k ;FkkfLFAfr iwjh djus ds i'pkr fdlh LFkk;h ;k vLFkk;h fjfDr esa tks miyC/k gks] fu;fer fu;qfDr ds fy, ,slh fjfDr esa laxr lsok fu;eksa ;k vkns”k ds vuqlkj dksbZ fu;fer fu;qfDr djus ls iwoZ mlds vfHkys[k vkSj mi;qDrrk ds vk/kkj ij fopkj fd;k tk;sxk A 3- ---------------------- -------------------------------------------------------------------------------- 4- fu;qfDr izf/kdkjh vH;kfFkZ;ksa dh ,d ik=rk lwph ml T;s"Brk dze esa rS;kj djsxk tSlk fd fu;qfDr ds vkns”k ds fnukad ds vuqlkj vk/kkfjr gks vkSj ;pfn gks ;k vf/kd O;fDr ,d lkFk fu;qfDr fd;s tk;s rks ml dze esa rS;kj djsxk ftl dze esa muds uke mDr fu;qfDr ds vkns”k esa dzec) fd;s x;s gksa A lwph dks vH;kfFk;ksa dh pfj= iaft;ksa vkSj muds lEcU/k esa ,sls vU; vfHkys[kksa lfgr tks mudh mi;qDrrk dks fu/kkZfjr djus ds fy, vko”;d gks p;u lfefr ds le{k j[kk tk;sxk A 5- p;u lfefr vH;kfFkZ;ksa ds ekeyksa ij mifu;e 4 esa fufnZ"V muds vfHkys[kksa ds vk/kkj ij fopkj djsxh A 6- p;u lfefr pqus x;s vH;kfFkZ;ksa dh ,d lwph rS;kj djsxh A lwph esa uke T;s"Brk dze esa j[ksa tk;saxsa vkSj og mls fu;qfDr izkff/kdkjh dks Hkstsxh A Rule 9 of the aforesaid Rules has been extended and a new Rule 10 has been added as under: 10-& fu;ekoyh dk foLrkj& bl fu;ekoyh ds micU/k ;Fkko”;d ifjorZu /^lfgr fdlh ,ls O;fDr ij Hkh ykxw gksaxsa tks fnukad 1 vDrwoj 1986 djs ;k blds iwoZ rnFkZ vk/kkj ij lh/ks fu;qDr fd;k x;k gks vkSj mRrj izns’k yksd lsok vk;ksx ds {ks=kUrZxr inksa ij rnFkZ fu;qfDr;ksa dk fofu;ferhdj.k f}rh; lalks/ku fu;ekoyh 1989 ds izkjEHk ds fnukad dh bl izkdj dh lsok esa cuk jgk gks A The petitioners have stated that they were regularised in service as per G.O. dated 7.8.1989 which was extended from time to time to those persons also who were appointed on ad hoc basis on or before 1.10.1989. Thereafter even the process of regularisation continued by extending the cut off dated. The petitioners have stated that in the seniority list published by the Education Department 10th February 2003 Annexure 4 to the names of the writ petition the candidates who were appointed between 1971 to 1980 have not been included in the list. The petitioners have represented to the authorities on 25.12.2002, 7.8.2003, 7.7.2003 and 16.7.2003. The sole contention of the petitioners in their representation are that seniority has to be counted from the date of their initial appointments. In view of the judgment of Apex Court in the case of Santosh Kumar vs. State of Andhra Pradesh and others 2003 AIR SCW 2970. It has been held by the Apex Court are as under: A Constitution of Bench of this Court in Direct recruit Class II Engineering Officers’ Association’s case (supra) after considering various aspects and earlier decisions, summed up the conclusions in paragraph 47 of the judgment. For out purpose paras (A) and (B) of the said paragraph are relevant, which are extracted hereunder:- 47. To sum up, w hold that: (A) Once and 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. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the Rules but the appointee continues in the post uninterruptedly till the regularisationof his serv ice in accordance with the rules, the period of officiating service will be counted. The respondent and others were appointed as Sub- Inspectors out of seniority looking to the outstanding merit and record prior to the direct recruits like the appellant. Their services were admittedly regularised by relaxing the service Rules in exercise of power available under R. 47 of the General Rules. The appellant did not challenge the validity of R. 47 and no mala fides were established against the authorities in exercise of powers of relaxation under the said Rules. The Tribunal has recorded a finding that the rule relating to the methord of recruitment was not relaxed but only the conditions which had to be fulfilled for the purpose of promotion to the category of Sub Inspector were relaxed; this finding is not disturbed by the High Court; there was no relaxation as to the basic qualification; the State Government regularised the services of the respondent and others with retrospective effect from the date they were temporarily appointed as Sub Inspectors (OSSIs). It is also not disputed that they continued in service uninterruptedly for about 12-13 years till their services were regularised with retrospective effect. This being the factual position it could not be said that the corollary to paragraph 47 (A) of the aforementioned Constitution Bench judgment applies to the facts of the present case. Once their services were regularised it cannot be contended that their initial appointment was only ad hoc basis and not according to the Rules and made as a stopgap arrangement. On the other hand paragraph 47 (B) supports the case of the respondents.” In the case of Brahma Shanker Tripathi vs. State of U.P. (2202) 2 UPLBEC 1943 the Division Bench of Allahabad High Court has held as under: In our opinion the submission of learned counsel for the petitioner is correct. The facts of the case are convered by the Supreme Court decision in Union of India vs. Lalita Rao, 2001 (5) SCC 384. The question is whether the adhoc service is to be added to the total length of service. Since there is no provision in the relevant rules for determining the seniority of the employees in service, the principle laid down by the Supreme Court in Direct Recruitment Class II Engineering Officer Association vs. State of Maharashtra 1990 (2) SCC 715, have to be followed. In that decision the Supreme Court has held that where a person is appointed according to the Rules his seniority is to be computed the date of appointment and not from the date of confirmation. In the present case the petitioner was appointed in adhoc capacity in accordance with Rule 5 of the U.P. Subordinated Agriculture Service Rules, 1977 after selection against posts which were advertised. Hence, in our opinion the petitioner’s service from 16.2.73 to 4.5.81 has to be added to the petitioner’s total length of service for the purpose of seniority and his position in seniority will be fixed accordingly. Further five Judges Constitution Bench of the Apex Court in the case Chandra Prakash and others vs. State of U.P. and another, 2002 (2) UPLBEC 12671 has held as under: “We will not proceed to consider whether there is in fact any conflict between the two sets of judgments. In this process, we must bear in mind the fact that the judgment of this Court in Dr. Mathur’s case was a confirming judgment wherein this Court upheld the findings of the High Court by a reasoned order though brief. Therefore, it becomes necessary to notice the basis of the judgment of the High Court which was under appeal before this Court in Dr. Mathur’s case. In the said batch of writ petitions filed before the High Court including that of Dr. Mathur, the High Court held that appointments of temporary doctors were made against substantive vacancies which had fallen vacant due to non-availability of doctors. It also held that the eligibility of the writ petitioners therein for being appointed as PMS-II was not in dispute. It further held that the petitioners therein held the necessary qualification for regular appointment. From the record available before it , the High Court came to the conclusion that the petitioners therein had been working against substantive vacancies and were never treated as ad hoc appointees. It also held that the mere fact that their services were not regularise would not deny those petitioners the benefit of their continuity in service from the date of their initial appointment, and a subsequent regularisation would not take away their right to seniority from the date of their initial appointment. It is on the basis of these findings that the High Court directed to fix the seniority of the temporary doctors from the date of their initial appointment in the PMS cadre, giving them all the service benefits which were due to them after fixing their seniority. It was this judgment when brought before this Court, a-3- Judges Bench upheld the same. It also noticed the fact the the Regularisation Rules did not given them that benefit. Still this Court held that those doctors were entitled to count their service from the date of initial appointment for the purpose of counting their seniority. We have already noticed that this judgment has been successively followed in the subsequent cases, on of which at least came before this Court and the said view of this Court was affirmed. Applying the principles laid down in the above said cases, we hold that the judgment of the 2 Judges Bench of this Court dated 23.3.1995 as modified by the subsequent order dated 26.7.1996 by the same Bench, does not lay down the correct law, being in conflict with the Larger Bench judgment. If that be so, the above writ petitions, from which this reference has arisen, will have to be decided de hors the law laid down by those two judgments of the Bench of two learned Judges. Therefore, having decided the issue that has arisen for our consideration we think it just that these writ petitions should now be placed before a Bench of three learned Judges for final disposal.” In the case of Dr. Chandra Prakash and others vs. State of U.P. and another (2002) 10 SCC 728 the apex Court has held that the seniority shall be counted from the date of initial appointment. The observations are quoted below: “According to the writ petitioners they were appointed on temporary basis against substantive vacancies in accordance with the Rules prevalent at the time of their respective appointments. They had the requisite qualifications and their appointments were made after selection by DSC, after sanction granted by the governor and with the approval of PSC. They claim to have at least continued to serve in such substantive vacancies after consultation with PSC and had been granted leave benefits, promotions increments and other service benefits of regular service. They therefore, claim seniority from the date of their initial appointment on the principle laid down in Mathur case. According to the petitioners PSC select lists prepared in 1972 and 1977-78-79 are not available with the respondent states as they have been admittedly destroyed or misplaced and they 1996 seniority list was purportedly based on them. It is stated that the State Government has not issued any letters of regular appointment to any selectee till today. It is contended that the selectee who had not been temporarily appointed elarlier were given temporary appointments after their recommendations by PSC in 1972 or 1977-78-79. Many of them joined services on the basis of these orders of temporary appointment much later. Now on the basis of the decision in Tandon case the were claiming seniority from the date of their selections whether in 1972 or 1977-78-79 even though they had not joined services at all then. It is submitted that the selectees could not claim seniority on the basis or P.SC recommendation which apart from any other consideration, could not be kept alive for such a long period.” Petitioners have submitted that since the petitioners are L.T. grade teachers and lecturers, they are entitled for their seniority from the date of their initial appointments. They have further submitted that the seniority of all the C.T. grade teachers who were on adhoc basis have been taken into consideration from the date of their initial appointments. The petitioners therefore, have stated that they are entitled to their seniority from their initial date of appointments. Petitioners have also filed supplementary affidavit wherein paragraph 4 it has been stated that teachers who were appointed on temporary/ ad hoc basis and were teaching regularly till 13.6.1980, their services have been regularised in compliance of the Radiogram dated 19.6.1980. Sri B.D. Kandpal, Standing Counsel for the State of Uttaranchal has stated that no decision has yet been taken on the representations made by the petitioners regarding their seniority. He has also stated that seniority will be determined in accordance with seniority rules. The petitioners have already made their representations, which shall be decided in accordance with law and in the light of observations made above within one month after receipt of certified copy of this judgment. The petitioners apprehend that promotions are going to be made, suffice it it observe that the respondents shall fix the seniority by disposing of the representations of the petitioners in accordance with law. A writ of mandamus is issued directing the respondents to consider the seniority of the petitioners in accordance with the rules applicable to them. With the aforesaid observations the writ petition is disposed of. No order as to costs. (Rajesh Tandon, J.) 23.10.2003 Dhyani