SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION NO.803/1996. B.S. Sharma Versus State of Rajasthan & Ors. 2) S.B. CIVIL WRIT PETITION NO.5726/1994. Rajeev Pareek Versus The Rajasthan State Pollution Control Board & Ors. 3) S.B. CIVIL WRIT PETITION NO.152/1995. Ashok Kumar Gupta Versus State of Rajasthan & Ors. 4) S.B. CIVIL WRIT PETITION NO.4777/1995. Mahesh Chandra Sharma Versus The Rajasthan State Pollution Control Board & Ors. Reportable Date of Order:- March 22, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ashok Gaur with Shri Sargam Jain, Shri Rajendra Soni with Ms. Anuradha Soni Verma and Shri S.C. Gupta for the petitioners. Shri S.D. Khaspuria, Additional Government Counsel for the State. Smt.Anita Agrawal for Rajasthan State Pollution Control Board. Shri Prahalad Singh for the private respondents. SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 2 BY THE COURT:- All these four writ petitions are directed against the final seniority list dated 16/9/1994 issued by the Rajasthan State Pollution Control Board (for short, the “Board”) whereby respondents No.3 and 4, Shri V.P. Poddar and Shri V.K. Singhal were assigned seniority on the post of Assistant Environment Engineer which post was formerly known as “Assistant Engineer” over and above petitioners herein. Petitioners have a common grievance against the above referred to Shri V.P. Poddar and Shri V.K. Singhal and are staking their claim on the strength of the order issued by the respondent-Board on 8/11/1993 whereby they were all made members of service by way of screening under the provision of second proviso of Rule 6(1) of the Rajasthan State Pollution Control Board Employees Service Rules and Regulations 1993 (for short, “Rules of 1993”) in which, respondent-Board placed all of them above Shri V.P. Poddar and Shri V.K. Singhal clearly stating therein that their placement in that order was being made in order of seniority. 2) Shri B.S. Sharma-petitioner in SBCWP No.803/1996, was appointed as Junior Engineer with the respondents on 6/6/1978, Shri Rajeev Pareek -petitioner in SBCWP No.5726/1994 was appointed as SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 3 Junior Engineer with the respondent Board on 24/11/1984, Shri Ashok Kumar Gupta-petitioner in SBCWP No.152/1995 was likewise appointed as Junior Engineer on 1/3/1979. Similarly Shri Mahesh Chandra Sharma-petitioner in SBCWP No.4777/1995 was likewise appointed as Junior Engineer on 24/11/1984. Prior to their appointment as Assistant Engineer by way of direct recruitment, Shri V.P. Poddar was also appointed as Junior Engineer with the respondent-Board on 22/8/1985 and Shri V.K. Singhal was appointed as Junior Engineer on 24/11/1984. It so happened that respondent-Board in the meantime advertised certain posts of Assistant Engineer by way of direct recruitment and Shri V.P. Poddar was appointed on 15/4/1989 and Shri V.K. Singhal was appointed on 9/6/1989 on the post of Assistant Engineer by way of direct recruitment on ad hoc temporary basis. However, prior to their appointment on the post of Assistant Engineer by way of direct recruitment, petitioner-B.S. Sharma had already been promoted on the same post on ad hoc basis vide order dated 2/1/1988, Rajeev Pareek on 27/5/1988, Ashok Kumar Gupta on 2/1/1988 and Mahesh Chandra Sharma on 2/1/1988. 3) Respondent-Board did not have its own rules prior to promulgation of the Rules of 1993 SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 4 and in that situation, it had adopted Rajasthan Service of Engineer and Allied Posts (Public Health Branch) Rules, 1968 (for short, “Rules of 1968”). After appointment of Shri V.P. Poddar and Shri V.K. Singhal, respondent-Board by different orders extended their services on ad hoc basis upto December, 1991. Respondent-Board vide order dated 22/10/1988 extended services of Shri V.P. Poddar and Shri V.K. Singhal and nine others. Subsequently vide order dated 11/5/1992, their ad hoc services were extended upto 31/3/1993. In the meantime, when the Rules of 1993 were promulgated vide notification dated 1/3/1993, petitioners as well as private respondents were screened and were made members of the service by recourse to second proviso to Rule 6(1) of the Rules of 1993. In the order passed on 8/11/1993, all of them were shown to have been working on ad hoc basis and were adjudged suitable for permanent appointment w.e.f. 30/3/1993 and therefore they were confirmed in such appointment with a clear stipulation that their names were mentioned in the said order in the order of seniority. Names of Bhagwan Swaroop Sharma, Ramesh Chandra Tomar, Ashok Kumar Gupta, Mahesh Chandra Sharma and Rajeev Pareek were respectively shown at Sr.No.1 to 5 in that order whereas names of Shri Vishnu Prakash Poddar and SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 5 Shri Vijay Kumar Singhal were shown at Sr.No.6 and 7. A tentative seniority list of Junior Engineers was published on 20/7/1993 in conformity with that order in which names of Shri V.P. Poddar and Shri V.K. Singhal were placed below the petitioners. Objections were invited from the affected persons. It appears that their representations made in that behalf were accepted. This is how they were shown in the impugned seniority list senior to the petitioners, having been placed at Sr.Nos.1 and 2 respectively. Hence, all these writ petitions. 4) Learned counsel for the petitioners have argued that petitioners were otherwise much senior to respondents Shri V.P. Poddar and Shri V.K. Singhal as Junior Engineer. Even if they were selected by way of open competition for appointment on the post of Assistant Engineer, respondent-Board did not purposely appoint them on regular basis and their appointment was made on ad hoc basis because rules were in the process of being framed. It is contended that the petitioners for that matter also had the right to be promoted on regular basis because all of them had completed the requisite experience of three years and number of vacancies were also on the post of Assistant Engineer. Their promotions were delayed only because respondent-Board did not take timely steps SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 6 to fill in such vacancies on regular basis. Learned counsel submitted that subsequently stand of the respondent-Board that instead of being given extension on ad hoc temporary basis, Shri V.P. Poddar and Shri V.K. Singhal should have been straightway confirmed in their respective appointment immediately after completion of period of probation, cannot be now accepted in the face of record to the contrary which shows that their services were extended on ad hoc temporary basis, not once but by two different orders and they were always treated ad hoc appointees and were therefore ultimately subjected to screening. Exercise of screening undertaken by the respondent-board in their case cannot be treated either as an exercise in futility or superfluous. Learned counsel submitted that if that logic is applied to the case of Shri V.P. Poddar and Shri V.K. Singhal, petitioners should have also been considered eligible for substantive appointment immediately on completion of requisite period of three years experience from the date of their appointment as Junior Engineer because vacancies of the post of Assistant Engineer were available with the respondent-Board and the board was under obligation to consider their case for promotion in accordance with the Rules of 1968. In support of SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 7 their arguments, learned counsel for petitioners have placed reliance on the judgment of Supreme Court in Rudra Kumar Sain & Ors. Vs. Union of India & Ors. : JT 2000 (9) SC 299. 5) Smt.Anita Agrawal, learned for the Rajasthan State Pollution Control Board, Shri Prahalad Singh, learned counsel for private respondents and Shri S.D. Khaspuria, learned Additional Government Counsel have opposed the writ petitions. It was argued by them that the respondent-Board issued tentative seniority list and thereby invited objections from the affected parties. Mere placement of the petitioners higher than Shri V.P. Poddar and Shri V.K. Singhal in the order of confirmation after screening does not necessarily entitle them to claim higher seniority than Shri V.P. Poddar and Shri V.K. Singhal because this order in any case was subject to seniority being made final. Objections of Shri V.P. Poddar and Shri V.K. Singhal were accepted as in the opinion of the respondent Board, they should have been confirmed immediately after completion of their initial probation period. While the petitioners were given regular promotion only from the date when they made members of service, but above referred to two officers were substantively appointed on the post of Assistant SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 8 Engineer in April 1990 itself when they completed probation period. Learned counsel submitted that there is clear provision in second proviso to Rule 6(1) read with Rule 31 of the Rules of 1993 that the person not covered by rule 5, who were appointed in the posts included in Schedule on adhoc or officiating or urgent temporary basis and who have been continuously holding such posts for at least one year on the date of commencement of these rules, shall be screened by a Committee referred to in Rule 26 for adjudging their suitability on the posts held provided they possessed the requisite qualification prescribed in the rules either for direct recruitment or promotion or the prescribed qualification on the basis of which persons were selected for adhoc/officiating urgent temporary appointment. In the case of Shri V.P. Poddar and Shri V.K. Singhal, action of the respondent-Board subjecting them to screening was taken by mistake because they were entitled to be treated as permanent/confirmed employee immediately after completion of their probation period. Learned counsel in this connection placed reliance on Rule 31 of the Rules of 1993 which provides that seniority of persons appointed to the lowest post of the Service or lowest categories of post of SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 9 each of the Group/Section of the Service, as the case may be, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to other higher posts in the Service or other higher categories of posts in each of the Group/Section in the Service, as the case may be, shall be determined from the date of their regular selection to such posts. Shri V.P. Poddar and Shri V.K. Singhal were treated as regularly selected candidates by way of open competition. As per first proviso to Rule 31, all the petitioners were liable to be placed below them because they were the once, who were made member of the service by way of screening under Rule 6 supra. Learned counsel submitted that the Rules of 1993 were made applicable in the Board w.e.f. 1/3/1993. As per Rules of 1993, requisite period of experience for promotion from the post of Junior Engineer to Assistant Environment Engineer is five years in case of degree holders and fifteen years for others. Learned counsel therefore submitted that petitioners straightway became the Assistant Environment Engineer by way of screening or otherwise, since they did not possess the degree, but they would have been required to complete experience of 15 years to be given such promotion. SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 10 6) I have given my anxious consideration to the rival submissions of the parties and perused the material on record. 7) Narration of above facts by themselves show that before promulgation of the Rules of 1993, respondent-Board did not make regular promotions despite availability of number of posts of Assistant Engineers but at the same time, advertised certain posts for direct recruitment. Shri V.P. Poddar and Shri V.K. Singhal do not dispute that they were appointed by way of direct recruitment while they were still working with the respondent-Board itself on the post of Junior Engineer and placed much below the petitioners in seniority. In the seniority list of Junior Engineers dated 21/9/1993, they were at Sr.No.9 and 10 whereas petitioners' name appeared respectively at Sr.Nos.1, 3, 7 & 8. Respondent- Board appointed Shri V.P. Poddar and Shri V.K. Singhal on the post of Assistant Engineer, respectively describing their appointment as ad hoc/temporary ostensibly for the reason that at the same time, an exercise was being undertaken for framing the rules for governing the service conditions of employees of the Board and the proposed service rules were pending consideration with the government for approval. Now when the SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 11 Board contends that it had by mistake given extension on ad hoc/temporary service to Shri V.P. Poddar and Shri V.K. Singhal and that this occasioned by mistake subjecting them to screening along with the petitioners, this stand does not match with its record of the relevant time. Such record shows that Shri V.P. Poddar and Shri V.K. Singhal were initially appointed on ad hoc temporary basis and when their initial term of appointment was about to expire, extension in service was given to both of them again on ad hoc temporary basis vide order dated 22/1/1991 upto December 1991 and thereafter again by subsequent order dated 11/5/1993 upto 31/3/1993 which period was co-terminus with the date on which they were eventually made permanent on such appointment by way of screening under second proviso to Rule 6(1) of the Rules of 1993. Having undertaken so much of exercise, respondent-Board is now estopped from contending that all this was done by mistake. Mistake can occur once but when it is repeated number of times, it cannot be described as a mistake but rather becomes a designed and calculated move on the part of its doer. Even Shri V.P. Poddar and Shri V.K. Singhal did not raise any objection as to extension of their service on ad hoc temporary service on various SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 12 dates or even when they have been subjected to screening along with petitioners. They would be therefore now estopped from questioning correctness of such action because they by their conduct acquiesced in correctness of all such actions. Screening of Shri V.P. Poddar and Shri V.K. Singhal cannot be, as rightly submitted by the learned counsel for petitioners, accepted as an exercise in futility or superfluous. It is because of their screening that they have been made member of service and straightway taken on the post of Assistant Engineer/Assistant Environment Engineer just like the petitioners, otherwise, they were holding the substantive appointment on the post of Junior Engineer and were merely appointed as Assistant Engineer on ad hoc basis on various dates prior to promulgation of the Rules of 1993. What is now being contended by the respondent-Board is that the action on its part in extending services of Shri V.P. Poddar and Shri V.K. Singhal was taken by mistake and because they were liable to be confirmed immediately on completion of period of probation as the regular posts were available and that they had undertaken necessary formalities as envisaged under Rule 31 of the Rules of 1993 supra. But then, this logic can also equally apply to the case of petitioners, SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 13 who can also contend that when posts of Assistant Engineers were available and the petitioners had requisite experience of three years as envisaged in the Rules of 1968, there was no reason why the respondent-Board did not hold meeting of Departmental Promotion Committee to confer upon them benefit of regular promotion. 8) Argument that after promulgation of the Rules of 1993, requisite experience that was required for eligibility of promotion to the post of Assistant Engineer was five years for the degree holders and for others, 15 years experience cannot be accepted. This plea is contrary to the requirement of experience of three years contained in Schedule appended to the Rules of 1968. Petitioner Mahesh Chandra Sharma in his writ petition, being SBCWP No.4777/1995, has categorically asserted about the applicability of the Rules of 1968 and stipulation of experience of three years as eligibility for promotion to the post of Assistant Engineer. Respondent-Board in reply thereof, neither denied applicability of such rules nor of such experience being of three years. What however they have additionally submitted is that besides adoption of the Rules of 1968, the Board used to also independently pass resolutions for the purpose of method of SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 14 recruitment and terms and conditions of service of its employees but no resolution to the contrary has been cited showing deviation from the requisite experience of three years or otherwise making it five years or more. Contention that since the respondent-Board issued provisional seniority list whereby objections were invited from the affected parties and such objections were decided after hearing all concerned including the petitioners herein, does not grant any immunity to the action of the respondent-Board or otherwise take it out of the purview of the judicial review. When the Board has consistently treated the appointment of Shri V.P. Poddar and Shri V.K. Singhal as on ad hoc temporary basis and accordingly, not only gave them the extension in service but also eventually subjected them to screening and thereafter made them permanent after screening vide order dated 8/11/1993, with the clear stipulation that their placement in the order of screening was in order of seniority as well, it cannot now be permitted to take a somersault and now plead contrary to its own record and conduct. 9) Learned counsel for the respondents also submitted that in the recent past, respondent Board has undertaken exercise for making promotion SBCWP NO.803/96. SBCWP NO.5726/94. SBCWP NO.152/95. SBCWP NO.4777/95. 15 of all the petitioners as well as the private respondents to the post of Superintending Engineer, which is the highest post for promotion in the service of the Board. Therefore, this Court should refrain from making any interference at this stage. I am afraid, any subsequent development pendent lite would always be subjected to final outcome of the writ petitions. Mere pendency of these matters for a sufficient length of time before this Court, could not be an additional reason for the petitioners to suffer if otherwise they have made out a case worth issuance of mandamus. 10) In view of what is discussed above, all these writ petitions deserve to be allowed and are hereby allowed. The impugned order/final seniority list dated 16/9/1994 is quashed and set-aside and it is held that seniority of the petitioners as well as private respondents would be the same as reflected in the order dated 8/11/1993 and accordingly they would all be entitled to consequential benefits. No order as to costs. 11) Compliance of the judgment shall be made within a period of three months from the date copy of this order is produced before the respondent- Board. (MOHAMMAD RAFIQ), J.