COURT OF AT HON. MR. DHIRENDR^ & HON. MR. R.N. CHANbRAKAR. JJ Writ A&o@aJ No.82/07 APPELI.ANT Rajendra Prasad Tripath i Vs State of Chhattisqarh cs- "\.- FOR CONSIbE^ATIOjM Sd/- JUD^E 09.12.2009 R.N. ^ CU^L-^^- Sd/- R.N. Chandrakar Judge FOR ON_lo-l2.2009 Sd/- Dhirendra Mishra Judge HIGH CQURT QF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON. MR. bHIRENDRA MISHRA <& HON. MR. R.N. CHANDRAKAR. JJ Writ Appeal No. 82/2007 (Writ Appeal u/s 2 (1) of C.G. High Court (Appeal to Division Bench) Act, 2006 and Rule 157 (10) (e) of the C.G. High Court Rules, 2005) APPELLANT Vs RESPONDENT Rajendra Prasad Tripathi, s/o Shri K.P. Tripathi, aged about 39 years, Assistant Grade II, Mantralaya, Water Resources Department, D.K.S. Bhawan/Raipur, District- Raipur (C.G.) State of Chhattisgarh through the Secretary General Administration Department, Mantralaya, DKS Bhawan, Raipur, District- Raipur (C6) Present: Mr. Anand Dadariya & Mr. A. Surana, Advocates for the appellant. Mr. U.N.S. beo, Government Advocate for respondent. JUbGMENT (PassedonJ0..12.2009) bhirendra Mishra. J; 1. This writ appeal is directed against the order dated 27.2.2007 (Annexure A-2) passed in W.P. (s) No.6919/06 whereby the writ petition filed by the appellant herein has been dismissed. 2. Briefly stated, facts of the case, as projected in the impugned order are that the appellant herein was initially appointed as 'Lower Division Clerk cum Typist' on ad-hoc basis at a fixed pay of Rs.870/- per month in the office of the respondent vide order dated 10.8.1988. Thereafter, an order dated 19.4.1989 was passed wherein the nature of the order was changed from ad-hoc appointment to temporary appointment on the same fixed pay i.e. Rs.870/- per month, with allowances. Appointment order dated 19.4.1989 was subject to condition that within two years from the appointment, the appellant shall pass shorthand <& typing test from the M.P. Shorthand <& Typing Examination Council (for short 'Council') and departmental Hindi shorthand test through Secretariat Examination and till passing of the above examinations, the appellant would be entitled for lowest pay scale and other allowances admissible. ^ ^^^. "^ ^ Next conditipn of the appointment order provides that if the appellant passes the above examinations within the stipulatcd period, on the very next date of passing examinations, the petitioner would be appointed on the post of 'Lower Oivision Clerk cum Typist' for a probation period of two years. It has also been provided that in the event the employee fails to pass the above examinations within the stipulated period, his services shall be terminated without issuing any formal order. 3. Learned counsel for the appellant submits that the appellant was given regular appointment on temporary basis vide order dated 19.4.1989 on the vacant post of 'Lower bivision Clerk cum Typist' on the fixed pay of Rs.870/- per month with other allowances as admissible to a regular employee. The appellant passed Hindi typing examination by the Council on 28.10.1994 and departmental typing examination in the year 1997 and thereafter he was given appointment vide order dated 15.12.1997 on the post of 'Lower bivision Clerk cum Typist (AG-III)' on the regular pay scale on the probation period of two years. The appeltant successfully completed probation period of two years, however, he was not declared permanent employee for want of vacancy on the said post. This fact was communicated to him vide certificate dated 30.9.2000. The appeltant was further promoted to the post of Assistant Grade-II on 18.2.2003, however, seniority was not granted to him from the date of his initiat appointment or from the date he passed the typing examination from the Council. Being aggrieved, the petitioner preferred representation before the respondent and the same has been rejected, against which the petitioner preferred writ petition and the same also been rejected by the impugned order. Learned counsel for the petitioner further submits that from bare perusal of the order dated 19.4.1989, it is evident that the appellant was given regular appointment on temporary basis at the fixed pay scale of Rs.870/- p.m. with certain conditions. Condition of passing Hindi typing examination conducted by the department was de-hors the 68 rules and the same would not have any binding effect on the service conditions of the appellant. Respondents vide its circular dated 16.1.1992 relaxed the condition of passing typing examination for the post of Lower bivision Clerk cum Typist and therefore, the appellant was entitled to seniority with effect from the date of his initial appointment. The appetlant wasofficiating as Lower Division Clerk cum Typist and therefore, for determination of seniority, as per Rule 12 (4) (b) of the C.G. Civil Services (General Conditions of Services) Rutes, 1961 (for short 'Rutes, 1961'), the period of officiating service should have been counted for the purposes of seniority. 4. Learned counsel for the respondents submits that the appellant's earlier petition bearing W.P. (c) No.3196/06 for similar relief was disposed of by this Court vide order dated 21.7.2006 with a direction to the petitioner to make representation to the concerned authority and the respondent authorities were directed to decide the representation within a period of three months from the date of receipt of such representation. Representation was rejected by the respondent since the petitioner failed to comply with the conditions of appointment order dated 19.4.1989 within the specified time. After passing of Hindi typing examination, the appellant was appointed as Assistant ©rade-IIIw.e.f. 15.12.1997 vide order dated 15.12.1997 on regular pay scale on probation for a period of two years. 5. Learned Single Judge has dismissed the petition on the settled principles of law laid down by the Hon'ble Supreme Court in various judgments cited in the impugned order. 6. We have learned counsel for the parties. 7. From perusal of the order of appointment dated 19.4.1989, it is evident that the appellant was appointed on a fixed pay of Rs.870/- per month with a condition that the appellant shall pass Hindi shorthand <& typing examinations within a period of two years from the date of appointment. The order specifically mentions that the appellant shall be appointed on probation for a period of two years from the second day of his passing ^5 the above examinations and in case, the petitioner fails to pass the aforesaid examinations within two years, his services would stand terminated without any formal order. Admittedly, the appellant could not pass the aforesaid examinations within the stipulated period of two years and therefore, in view of the conditions attached with the appointment order dated 19.4.1989, argument of the learned counsel for the appellant that the appellant was granted regular appointment on temporary basis on a fixed pay scale of Rs.870/- per month with other allowances as admissible to the regular employee, cannot be accepted as the conditions present in the order clearly stipulates that the appellant would be appointed on regular pay scale on probation for a period of two years only on the condition that he passes the examinations mentioned in the order of appointment. 8. Since the petitioner failed to pass any of the two examinations within the stipulated period of two years in the appointment order, he was again appointed onprobation for a period of two years after he passed Hindi typing and shorthand examinations from the Council and Departmental Typing examination vide order dated 15.12.1997 (Annexure P-5). 9. Rule 12 of the Rules, 1961 deals with the 'seniority'. Sub-Rule (4) (b) of Rule 12 provides for seniority of ad-hoc employees according to which if a person is appointed on ad-hoc basis by the substantially following the procedure laid down by recruitment rules and the appointee continues in the post uninterruptedly till regularization of his services in accordance with the rules, the period of officiating service shall be counted for senionty. 10. However, the appointment of the petitioner was on a fixed pay with specific condition that if he attains eligibility criteria for appointment as Lower Division Clerk, as mentioned in the order dated 19.4.1989, as the petitioner admittedly did not have the eligibility, as prescribed in C.G: Secretariat Recruitment Rules, 1976, on the date of passing of q3pointment order dated 19.4.1989. Therefore, the question of granting ^ seniority to the petitioner from the date of his appointment as per Rule 12 (4) (b) of the Rules, 1961 on the basis of his appointment orderdated 194.4.1989 does not arise. 11. In the matter of Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra and others1 the dispute was regarding inter-se seniority between the direct recuritees and promotees and in Para 47 of the judgment the Hon'ble Apex Court has held thus:- "47. 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 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 insuch 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 regularisation of his service in accordance with the rules, the period of officiating service witl be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinan'ly be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. ' (1992)28cc 715 ^! (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of Service to unsettle a settled position. With respect to Writ Petition No. 1327 of 1982, we further hold: (K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicato if the same has been earlier decided by a competent court by a judgment which became final. In view of the above and the other findings recorded earlier, we do not find any merit in any of the civil appeals. writ petitions and special leave petitions which are accordingly dismissed. There will be, however, no order as to costs." 12. However, in the instant case from perusal of the appointment order of Annexure P-3 it is clear that appointment of the petitioner was purely on ad-hoc basis on the fixed pay scale of Rs.870/- per month. Terms and conditions of the appointment order clearly reveal that the petitioner was to cleor shorthand and typing examinations within a period of two years and only after he fulfills the condition No.l of the appointment order, he was to be appointed on the post of 'Lower Division Clerk cum Typist' on probation for a period of two years. Thus, initial appointment of the petitioner was only ad-hoc and not according to the rules. The appointment order was to be followed with appointment on probation for a period of two years only when the petitioner fulfills the condition No.l and on his failure to clear the said examinations within the stipulated period of two years, his appointment order was to be stand terminated without any formal order. Therefore, the learned Single Judge retying upon the judgments of the Hon'ble Supreme Court in the matters of Mahesh Kumar Agal Vs. q-2- birector General of Police and another , M.P. Chandoria Vs. State of M.P. and others3. State of M.P. Vs. Ramkinkar Gupta and Others4 and Om Prakash Shrivastava Vs. State of M.P. and another5 has held that if an employee passes required test within the probation period, the seniority has to be reckoned from the date of initial appointment. Otherwise, the seniority should be reckoned from the date of confirmation. Since the petitioner could not pass the examination within the period of two years from his appointment, therefore, he was appointed on the post of Lower Division Clerk-cum-Typist (Assistant Grade-III) on probation for a period of two years only after passing departmental Hindi typing test through the Secretariat examination. 13. On the basis of the aforesaid discussion, we are of the opinion that the claim of the petitioner that he ou9ht to have been given seniority from the date of his initial appointment has rightly been rejected. 14. In the result, there is no substance in this writ appeal, the same deserves to be dismissed and accordingly, it is dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Roshan/- 2 (1996)28cc 70 3 (1996)118cc 173 4(2000)10SCC77 5 (2005)118cc 488