Petitioners Dr. P. S. Shrivastava 85 another Versus State of Chhattisgarh & another Respondents / HIGH COURT OF CHHATTISGARH AT BILASPURX E Writ Petition No. 1257 of 2003 Post for Judgment 85 Order on Tgd‘ay of July, 2009. ’Sd/- San‘sh K. Agirihou‘i Judge ‘ \, HIGH COURT OF CHHAT’I‘ISGARH : BILASPUR Writ Petition No. 1257 of 2003 WRIT PETITION UNDER ARTICLE 226[227 OF THE CONSTITUTION OF INDIA (SB: Hon’ble Shri Satish K. Agnihotri J.) Shri Prashant Jayaswal, Senior Advocate with Shri Shailendra Shanna, Advocate for the petitioners. Ms Sanita Jain, Panel Lawyer for the respondents. JUDGMENT & ORDER i (Passed on this 2 “day of July, 2009) The petitioners, who are workings on the post of Veterinary Assistant’ISurgeons, by this writ petition, seek a writ in the nature of certiorari to quash the gradation list dated 25th March, 2003 (Annexure P/l2). The petitioners further seek a writ of mandamus, directing the respondents/authorities to assign seniority to them from the date of their initial appointment. 2. The indisputable'facts, in nutshell, are that the petitioners were initially appointed on ad hoc basis by order dated 5th24th September, 1973 (Anne‘xure P/ l) on the post of Veterinary / Petitioners 1. Dr. P. S. Shrivastava, aged about 53 years, S/o Late Shri S. P. Shrivastava, working as Veterinary ' Assistant Surgeon, Incharge Veterinary Hospital, Hospital, Rajnangaon, R/o D—13, Chandra Colony, Basantpur Road, Rajnandgaon 2. Rajnandgaon (C.G.) Dr. R. P. Soni, aged about 55 years, S/o Shri R. B. Soni, working as Deputy Director (Incharge) Veterinary Services, Mahasamund, R/o Chhattisgarh Lodge, Room No. 104, Mahasamund (C.G.) ' Versus Respondents l. ' State of Chhattisgarh, through Secretary, Department of Veterinary Services, 2. Mantralaya, Shastri Chowk, Raipur (C.G.) Director, Veterinary Services, Government of of Chhattisgarh, Near Ghadi Chowk, Raipur @/ Assistant Surgeon till properly selected candidates through the Public Service Commission were available and appointed. While working on ad hoe basis, the petitioners appeared in the selection process conducted by the Public Service Commission for appointment on the post of Veterinary Assistant Surgeons. The petitioner No.1 (Dr. P. S. Shrivastava) was appointed by order dated 5th December, 1975 (Annexure P/2 at serial No. 134) and the petitioner No.2 ( Dr. R. P. Soni) was appointed by order dated 23.5.l978 (Annexure P/3 at serial No. 14), by selection through Public Service Commission. The appointment of the petitioners was on probation for a period of two years. According to Shri Prashant Jayaswal, learned Senior counsel with Shri Shailendra Sharrna, learned counsel, appearing for the petitioners, the petitioners were granted seniority W.e.f. the date of their confirmation, as per the seniority list, as on 1.3.2003, wherein name of the petitioner No. 1 is placed at serial No. 19 and name of petitioner No.2 is placed at serial No. 30. The contention of learned counsel is that the petitioners ought to have been a given seniority from the date of their initial appointment i.e. 5m/24th September, 1973. Thus, this petition. Shri Jayaswal would submit that the petitioners are entitled to seniority w.e.f. the date of their initial appointment i.e. 5th /24th September, 1973, as the petitioners continued in service till they were selected and appointed through the Public Service Commission. In support of his submissions, learned counsel relied on the decision of Hon’ble Supreme Court in G. P. Doval and others Vs. Chief Secretary, Govt. of U.P. and othersl, The w ‘AIR 1984 sc 1527 Direct Recruit Class—II Engineering Officers’ Assaciation and others v. State of Maharashtra and othersz, Kailash Chandra Rajawat Vs Union of India and another3, Jagdish Lal and others Vs. State of Haryana and others4. Shri Jayaswal would further contend that a similarly situated person namely Dr. A. K. Bapat was granted seniority w.e.f. the date of his initial appointment on ad hoc basis. Thus, not granting seniority to the petitioners from the date of their initial appointment on ad hoc basis is discriminatory. 6. Per contra, Ms Sunita Jain, learned counsel appearing for the respondents would submit that the petitioners were appointed in September, 1973 on ad hoc basis, as stop gap arrangement and as such, the appointment of the petitioners was not in accordance with the rules. It was de hers the constitutional scheme of employment. Thus, in the light of the well settled principle of law, the petitioners are not entitled to any relief for the period of their ad hoc appointment. The petitioners have been granted seniority from the date when they were confirmed/ regularized on the post, in accordance with the existing rules. In support of her contention she relied on the decision of Hon’ble Supreme Court in State of Tamil Nadu and another etc. Vs. E. Paripoornam and otherss, and State of W.B. and others Vs. Aghore Nath Dey and otherss. 7. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 2 AIR 1990 sc 1607, 3 1994 Supp (1) scc 71 =AIR‘ 1993 sc 2462 4 (1997) 6 scc 538 =AIR 1997 sc 2366 5AIR 1992 sc 1823 6 (1993) 3 scc 371 @ The contention of learned counsel appearing for the petitioner as regards the discrimination in granting one Dr. Bapat, a similarly situated person, seniority w.e.f. the date of his initial appointment on ad‘hoc basisi cannot be considered for want of impleadment of Dr. Bapat as a necessary party. The petitioner has pleaded only one line in para 5.11 of the writ petition that Dr. Bapat has been given seniority from the date of his initial appointment. Thus, no order to prejudice the cause of Dr. Bapat, can be passed without affording an opportunity of hearing to him as he was not impleaded as party—respondent. 9. On perusal of the order dated 5th /24*h September, 1973, it appears that the appointment of the petitioners was on ad hoc basis, temporary, not subject to confirmation by the Public Service Commission, as pleaded by the petitioners. The appointment of the petitioners was as a stop gap arrangement, till properly and legally selected candidates through Public Service Commission are available. It is also not a case of the petitioners that their initial appointment was through proper selection process on ad hoc basis. Thus, the appointment of the petitioners cannot be held as legal from any point, as it was purely a temporary stop—gap arrangement till regular selected doctors through Public Service Commission are available for appointment. ~ 10. Hon’ble Supreme Court in the matter of appointment‘on ad hoc basis in Secretary, State of Karnataka and others Vs. Umadevi (3) and others7 observed as under: , “47. When a person enters a temporary employment or gets l engagement as a contractual or casual worker and the i 7 2066 (4) scc 1 engagement is not based on a propCr selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation With the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise While engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” 11. Subsequently, in State of U.P. and others Vs. Desh Rajs, Hon’ble Supreme Court observed as under : “7. Whatever may be the import and purport of such regularization rules, in View of the recent Constitution Bench decision of this Court in Secy., State of Karnataka V. Umadevi (3), it is now well settled that the appointments, if made in Violation of the constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of India, would be rendered illegal and, thus, void ab initio. No regularization rules, therefore, could have been made by the State of Uttar Pradesh in derogation of the statutory or constitutional scheme.” 12. Hon’ble Supreme Court in State of Orissa 85 Ors. V. Prasana Kumar Sahoo9, observed as under z “19. Regularization as is well known is not a mode of recruitment. A policy decision to absorb a person who is not in employment of the State without following the recruitment rules, would not confer any legal right on him. A constitution Bench of this Court in Secretary, State of Karnataka and Others V. Umadevi (3) and Others {(2006)4 SCC 1}, categorically held that any appointment made in violation of the constitutional provisions would be a nullity.” R ‘ 8 (2007) 1 sec 257 9AIR 2007 sc gees/l 13. Thus the appointment of the petitioners cannot be held as appointment in accordance with law, as the same was de hors the constitutional scheme, Without consideration of the cases of similarly situated persons. l4. Hon’ble Supreme Court in G.P.Doval (supra), relied on by the petitioners, observed as under: , “15. ....... It is thus well—settled that Where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating 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 Art. 16 and any seniority list drawn up on this invalid basis must be quashed.” 15. Hon’ble Supreme Court in The Direct Recruit Class-II l Engineering Officer’s Association (supra), relied on by the petitioners, observed as under : “44. To sum up, we hold that (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above mle 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 regularization of his service in accordance with the rules, the period of officiating service will be counted” ‘ 16. Kailash Chandra Rajawat (supra), relied on by the petitioners, this case was distinguished on the ground that the appointment of the employee was tempor'aiy and not a stop-gap appointment. The facts of thiscase are different. 17. Hon’ble Supreme Court in Jagdish Lal (supra), relied on by the petitioners, observed as under : “11. ............. It is seen that as soon as a person is appointed to a cadre/grade, he starts discharging the duties of his continuous length of service from the date of appointment to the post and his seniority is determined on the basis of that date unless he 1s appomted only as a stop gap arrangement or on ad hoc baSIS and dehors the Rules " l8. Hon’ble Supreme Court in E. Paripoornam (supra), relied on by the respondents, observed as under : “14. Apart from that, R. 10(a) (i)(1) provides for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately. Such appointments are made 'otherwise than in accordance with the procedure prescribed under the Rules. In the instant case the respondents were appointed temporarily and otherwise than in accordance with the Rules. They were later selected along with others for direct recruitment by the Public Service Commission. They were not entitled to count their temporary service for seniority...” 19. Hon’ble Supreme Court in Aghore Nath Dey (supra), the respondents, observed as under : relied on by “26 In v1ew of the above 1t 1s clear that the clalm of the wrlt petitioners (respondents 1n all these appeals) for treating their entire period of serVice prior to February 26, 1980 as regular service for the purpose of seniority, and fixation of their seniority accordingly, is untenable. The submission of Shri z @ . Sanghi that their initial ad hoc appointment must be treated as having been made in accordance with the rules since the selection by an alternative mode, namely, by a committee of flve Chief Engineers was resorted to on account of the emergency, cannot be accepted. Rule 11 of the 1959 Rules provides for appointments to be made during emergency, and lays down that such appointments during emergency can be made only ‘by advertisement and interview, through the Public Service Commission, West Bengal’. Admittedly, this express requirement in Rule ll was not followed or fulfilled subsequently, and, therefore, the initial ad hoc appointments cannot be treated to have been made according to the applicable rules These ad hoe appomtments were clearly not 1n accordance With the rules and were made only as a stopgap arrangement for fixed period, as expressly stated 1n the appointment order itself. 27. Thus, there is no escape from the conclusion that the present cases fall squarely Within the ambit of the corollary in conclusion (A), of Maharashtra Engineers case and, therefore, the period of ad hoc service of writ petitioners (respondents) on the post of Assistant Engineer prior to February 26, 1980, cannot be counted for reckoning their seniority. ” 20. The common thread, running through the above cited judgments, makes it clear that an appointment, not in accordance with the rules on ad hoc basis as a stop gap arrangement, the officiation of such a post cannot be taken into account for consideration of the case of seniority. In the case on hand, the initial appointment of the petitioners clearly indicates that their appointment was as a stop gap arrangement, till properly selected candidates by Public Service Commission are available and "appointed. Thus, the case of the petitioners is squarely covered by the observation in para 44(A) of Hon’ble the Supreme Court in The Direct Recruit Class-II Engineering Officer’s Association supra), which was considered and ( affirmed subsequently by various decisions. In Uma Devi (supra) a Constitutional Bench of 'Hon’ble Supreme Court further clarified that any appointment made de hors the constitutional scheme of employment and not in accordance with the Rules is illegal and as such the appointees have no right to continuation, regularization etc. An illegal appointment cannot be granted a premium by granting seniority from the date of appointment. 21. Looking from other angle, the service conditions of the petitioners are governed by the Madhya Pradesh Civil Services (General Conditions of Services) Rules, 1961 (for short ‘the Rules, 1961’), as it was then applicable. Rules, 1961 have been thereafter adapted by the State of Chhattisgarh, as it is. Rule 12 (a) provides for seniority in case of direct recruits, which reads as under: “12. Seniority. —- The seniority of the members of a service or a distinct branch or group of posts of that service shall be determined in accordance with the following principles, viz.- (a) Direct recruits.~(i) The seniority of a directly recruited Government servant appointed on probation shall count during his probation from the date of his appointment: Provided. that if more than one person have been selected for appointment on probation at the same time, the inter se seniority of the persons so elected shall be according to the order of merit in which they were recommended for appointment by the Commission in those cases Where the appointments are made after consulting the Commission, and according to the order of merit determined by the appointing authority at the time of selection in other cases. (ii) The same order of inter se seniority shall be maintained on the confirmation of the normal period of probation. If, however, the period of any direct recruits is extended, the 1 '..,,/ appointing authority shall determine Whether he should be assigned the same seniority as would have been confwmed on the expiry of the normal period of probation or Whether he should be assigned a lower seniority. (b) XXX XXX xxx (c) xxx m xxx 22. The above stated Rule i.e. Rule 12 (a) (ii) of the Rules, 1961 came into consideration before Hon’ble the Supreme Court in the matter of M. P. Chandoria Vs. State of M.P. and others”, State of M.P. Vs. Ramkinkar Gupta and others“ and Om Prakash Shrivastava Vs. State of M.P. and another”. 23. Hon’ble Supreme Court, having examined Rule 12 and 13 of the Rules, 1961 in M. P. Chandoria (supra), held as under: “5. Under Rule 12, the seniority of the members of the service of a district branch or group of posts of that service, shall be determined in accordance with the principles laid down therein. Sub-clause (i) of clause (a) envisages that the seniority of a directly recruited government servant appointed on probation shall count during his probation from the date of his appointment; the proviso is not relevant. Sub~clause (ii) envisages that the same order of inter se seniority of direct recruits is maintained by confirmation of the normal period of probation. If, however, the period of probation of any direct recruit is extended, the appointing authority should determine the date from which the candidate should be assigned seniority. Until the probation period is completed and he is confirmed in the post, he does not become a member of the service on successful completion of the probation and passing of the prescribed tests or conditions precedent to declaration of completion of the probation period. So, mere passage of time of one year does not entitle a probationer to be a member of the service. He remains to be on temporary service. On completion of probation period, the appointing authority i0 H (1996) 11 scc 173 (2000) i0 scc 77 ‘1 2006 soc (L&S) 107 4 [9C should confirm him in a pending post available or grant him a quasi—permanent status. As soon as the post is available, he should be conflrmed. In View of the admitted position that he did not pass the test, the appointingvauthority considcred that his seniority would be counted w.e.f. the date of his passing the test. Rule 12(a)(ii) clearly empowers the appointing authority to assign, in these circumstances, the seniority in lower level than the one assigned by the Public Service Commission. We do not find any illegality committed by the authorities in giving seniority from the date of his passing the test.” 24. In Ramkinkar Gupta (supra), the observations made by the Hon’ble Supreme Court in M. P. Chandoria (supra) were reiterated, approvingly, as under: “9. According to sub-clause (ii) of clause (a) of Rule 12 in a case like the’present where a person had been allowed to continue in service after the period of probation had been completed and he is confirmed subsequently, it is for the appointing authority to decide as to from what date he should be assigned seniority. In the present case the decision of the ”State Government was that he should be assigned seniority w.e.f. 19-1-1984. The aforesaid rules have been considered by this Court in the case of M.P.Chdsandoria v. State of M.P. The principle laid down by this Court in Chandoria case was that if a person' does not pass the test then the appointing authority is empowered to assign seniority in a lower level than the one which was assigned by the Public Service Commission. That being so the decision to assign seniority to Respondent l w.e.f. 19—1-1984 is in accordance with rules.” 25. Hon’ble Supreme Court in Om Prakash Shrivastava (supra) held as under : “11. Reiterating the principles in M.P.Chandoria case it was held in Ramkinkar Gupta case that if a person does not pass the test then the appointing authority is empowered to assign seniority in a lower level than one which has been assigned by the Public Service Commission. A person who has neither 12 @y been confirmed, nor had a certificate in his favour in terms of sub—mle(6), nor discharged from service under sub—rule (4) would fall Within the category of those officers referred to in sub—rule (7) of Rule 8 of the Rules. In other words, he is to be deemed to be a temporary government servant with effect from the date of expiry of probation. The position is different in case of an officer, who passes the departmental examination within an extended period of probation.” 26. In the case on hand, the petitioner No.1 was appointed on 5.12.1975 and was confirmed on 29.3.1988, not immediately after completion of two years probation. The petitioner No.2 was appointed on 23.5. 1978 but the date of confirmation is not clean It appears that the petitioners have not completed the probation period within specified period of two years. Thus, on account of non-completion of probation period within two years, also, the petitioners are not entitled to seniority from the date of their initial appointment through the Public Service Commission. 27. For the reasons mentioned hereinabove, the petition is dismissed. No order as to costs. ’Sd/- Satish K. Agnihotri ~ Judge Thakur