COURT NO.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) 1340/2006 Kuldeep Singh & Others …….Petitioners Versus State of Uttaranchal, Through Secretary (Basic Education), Dehradun & Others …….Respondents With Writ Petition (S/S) 547/2004 Anardhan Prasad & Others …….Petitioners Versus State of Uttaranchal, Through Secretary (Basic Education), Dehradun & Others …….Respondents And Writ Petition (S/S) 722/2004 Chandra Pal Singh & Others …….Petitioners Versus State of Uttaranchal, Through Secretary (Basic Education), Dehradun & Others …….Respondents Sri B.D. Upadhyay, learned Counsel for the petitioners. Sri H.M. Raturi, learned Standing Counsel for the respondents. 6th May, 2008 2 Hon’ble P.C. Verma, J. Since the controversy involved in all these writ petitions are common based on similar set of facts, hence these writ petitions are being decided by the common order. For brevity, I will refer to the facts in Writ Petition No. 1340 (S/S) of 2006. 2. By means of these writ petitions the petitioners have prayed for a writ of mandamus directing the respondents to determine the seniority of the petitioners afresh in the department from the date of their initial appointment with all consequential benefits. 3. Petitioners are holders of C.P.Ed. Certificates. They were initially appointed in the untrained pay scale in the different schools run by the Basic Education in pursuance of the Government Order dated 23.3.1995, which provides that the C.P.Ed. trained candidates may be given appointment as untrained teachers and they shall undergo in-service training and after completion of the said training, trained pay scale shall be given to them. Vide another circular dated 1.1.1993, the Basic Education Board, U.P. has decided that C.P.Ed. trained candidates shall also be eligible for appointment as Assistant Teacher in the Institutions run by the Board and accordingly they shall be appointed in recognized Basic Schools as well. After completion of the said training the petitioners are being paid the pay scale of trained teachers. The only grievance of the petitioners, on which this writ petition has been pressed, is that their seniority is not being counted with effect from the date of their initial appointments and their services for seniority is being counted with effect from the date on which they 3 have completed their in-service training, although for the purpose of granting the selection grade to the petitioners, the respondents have counted their service with effect from the date of their initial appointments. 4. I have heard learned Counsel for the parties and have perused the record. 5. The common case of the petitioners is that their substantive appointment should be taken from the date of their initial appointment irrespective of the fact that they were untrained teachers at that time. According to them, trained and untrained teachers constitute the same class and after receiving the training any disparity between them had come to an end. As such, now for the purpose of their seniority it is the date of their initial appointment which is relevant. On the contrary, the case put forth on behalf of the respondents is that due to non- availability of trained teachers, untrained teachers were appointed and they form a different class. The case of the untrained teachers cannot be equated with the trained teachers. It was only after the training, they got the scale of a trained teacher and it is from the date of getting this scale that they shall be deemed to have been substantively appointed on this post. 6. The appointment of the petitioners was made against the permanent substantive vacant posts. It has not been disputed on behalf of the petitioners that after obtaining the in-service training, they are being paid the salary of a trained teacher. It is in the light of the above that is to be seen whether their seniority is to be reckoned from the date of their initial appointment as an 4 untrained teacher or from the date when the petitioners completed their training. 7. Learned Counsel for the petitioners invited my attention to Rule 22 of the U.P. Basic Education (Teachers) Service Rules, 1981, which provides that the seniority of a teacher in a cadre shall be determined from the date of appointment in substantive vacancy. For the sake of convenience, Rule 22 is quoted as under: “Seniority:- (1) The seniority of a teacher in a cadre shall be determined by the date of his appointment in a substantive vacancy: Provided that, if two or more persons are appointed on the same date, their seniority shall be determined in which their names appear in the list referred to in Rule 17 or 17-A or 18, as the case may be. Note- A candidate selected by direct recruitment may lose his seniority, if he fails to join without valid reasons when a vacancy is offered to him, whether the reasons in any particular case are valid or not shall be decided by the appointing authority. (2) The seniority of a teacher who has been transferred from one local area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred, as on the date of orders for transfer are passed. 5 Such a person shall not be entitled to any compensation.” (emphasis added) 8. The question regarding the determination of seniority has arisen in a number of cases and it is settled principle of law that in absence of any substantive appointment seniority is determined from the date of appointment. The Apex Court in the case of State of U.P. & another v. Dr. M.J. Siddiqui & Others, and Dr. C.B. Aggarwal & Others v. Dr. M.J. Siddiqui & Others reported in (1980) 3 S.C.C. 174, observed as under: “There does not appear to be any magical formula or special charm in the word “substantive”. The mere use of the term “appointment in a temporary vacancy” by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to a purely temporary vacancy. In order, therefore, to determine the nature of the appointment, we have to look into the heart and substance of the matter, the surrounding circumstances, the mode, the manner and the terms of appointment and other relevant factors.” 9. The Apex Court in the case of Baleshwar Dass & Others v. State of U.P. & Others reported in (1980) 4 SCC 226, defined an appointment in substantive capacity and held as under: 6 “What, in the context, is a substantive capacity vis-à-vis an appointment to a post? In our view, the emphasis imparted by the adjective “substantive” is that a thing is substantive if it is “an essential part or constituent or relating to what is essential.” We may describe a capacity as substantive if it has “independent existence” or is of “considerable amount or quantity.” What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State Substantive capacity refers to the capacity in which a persons holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of along duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.” 10. In the case of Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra & Others reported in (1990) 2 SCC 715, the Constitution Bench of the Apex Court observed as under:- 7 “…The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Article 14 and 16. If an appointment is made by way of stop gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. This principle has been followed in innumerable cases and has been further elaborated by this court in several judgments including those in Baleshwar Dass v. State of U.P. and Delhi Water Supply and Sewage Disposal Committee v. R.K. Kashyap with which we 8 are in agreement. In Narender Chadha v. Union of India, the officers were promoted although without following the procedure prescribed under the rules, but they continuously worked for long period of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.” 11. In para 47 of the above judgment, the Apex Court concluded authoritatively in clause (B) as under:- “…(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 services in accordance with rules, the period of officiating service will be counted. 12. In the case of Union of India and another v. Harish Chander Bhatia & Others reported in (1995) 2 SCC 48, the Apex Court observed as under:- “….An officiating appointment for over a decade cannot be treated as fleeting 9 appointment with no service benefits to be given. Any other view would very seriously prejudice such a service-holder who, even after having rendered service equal to those of permanent appointees for a long period, and that too for proper functioning of the service, would be denied the benefit of the same for no cogent reasons. Any other view is bound to have a demoralizing effect in the service as a whole.” 13. The Apex Court in State of U.P. & Others v. R.K. Tandon & Others reported in (1995) 3 SCC 616, observed as under: “….If, however, the initial appointments are according to rules, though on ad hoc or temporary basis, then the seniority would be counted from the date of initial appointment.” 14. The Apex Court in L. Chandrakishore Singh v. State of Manipur & Others reported in (1999) 8 SCC 287, observed as under: “…The touchstone then is the substantive capacity of the appointment. The Court further held that the substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. Even appointment to a temporary post for a long duration would be sufficient to hold that such person was holding the post in a substantive capacity. A person shall be held 10 to be holding a post in a substantive capacity when he is found to be not holding the post for a indefinite period.” 15. In para 15 of the aforesaid judgment, the Apex Court observed as under: “..It is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority and shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. In this regard, we fortify our view by the judgment of this Court in G.P. Doval v. Chief Secretary Government of U.P.” 16. The Constitution Bench of the Apex Court in the case of Rudra Kumar Sain & Others v. Union of India & Others reported in (2000) 8 SCC 25, considered the dictionary meaning of “ad hoc”, “stop gap” and 11 “fortuitous” terms and conclusively laid down the law thus: “In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be “stop gap or fortuitous or purely ad hoc.” In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be “fortuitous/ad hoc/stopgap” are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.” 17. In Dr. Chandra Prakash & Others v. State of U.P. & Another reported in (2002) 10 SCC 710, the Apex Court upheld that the seniority should be reckoned from the date of initial ad hoc appointment, which was approved by appropriate authority i.e. Governor relying on the case of Rudra Kumar Sain Vs. Union of India (Supra).” 18. In view of the aforesaid decisions of the Hon’ble Apex Court, it is quite clear that a person is said to hold the post in substantive vacancy when he holds it for an indefinite period especially for long duration in contradistinction to a person who holds it for a definite 12 period. A fair rule of seniority should ordinarily be taken into account on the basis of the past services if stop gap arrangement is followed by confirmation. The Hon’ble Apex Court in the decisions cited above has also confirmed the principle of counting towards seniority, the period of continuous officiation following the appointment made in accordance with the rules for regular substantive appointment in the service. The Hon’ble Apex Court has also held in the decision noted above that if the initial appointments are according to the rules though on ad hoc or temporary basis, then the seniority would be counted from the date of initial appointment. Therefore, in view of the law propounded by the Apex Court in the above cited cases and in view of the facts and circumstances of the case, I am of the considered opinion that the seniority should be counted from the date of initial appointment. In other words, the period between the date of initial appointment and the date of successful training should be counted for purpose of determination of seniority and the petitioners are entitled to this benefit. 19. The petitioners were initially appointed after following the due procedure of selection and then they were appointed against permanent substantive posts. Subsequently, as was required, the petitioners successfully completed their in-service training. Hence the period from their initial appointment as untrained teacher till the period of completion of in-service training cannot be excluded in determining the seniority of the petitioners. The past services rendered by the petitioners till the successful completion of training must be counted for reckoning their seniority. 13 20. Accordingly, the writ petition is allowed. Respondents are directed to determine the seniority of the petitioners, as far as possible within a period of three months from the date of production of certified copy of this order, reckoning the service of the peittioners from the date of their initial appointment and not from the date of their training in the light of the observations made above. Thereafter the petitioners shall be considered for promotion in accordance with the rules. On determination of the seniority in the above light, the petitioners may become senior to some of the teachers who have already been promoted. They have not been impleaded parties in these writ petitions. Therefore, it is provided that promotions already made will not be affected or disturbed by this order. The writ petitions are disposed of accordingly. In the facts and circumstances of the case, the parties shall bear their own costs. (P.C. Verma, J.) 6.5.2008 Prabodh