Case: Anil Kumar Chowdhury Vs. State Of Assam &amp; Others

for the appointment of Shri Anil Kumar Choudhary and the determination of his seniority was sent for the first time by the Government of Assam under their No. AAI/56/64 dated 1st June, 1966, the Government of Assam had indicated that Shri Anil Kumar Choudhary was holding the non-cadre post of Additional District Magistrate, United Mikar and North Cachar Hills with effect from 9-12-1964 to 3-3-1966. A copy of the proposal sent by them is given as Annexure S-II to this Supplementary Counter Affidavit. Subsequently, the Government of Assam issued orders on 19th August, 1966 appointing Shri Anil Kumar Choudhary retrospectively appointing the petitioner to officiate as Deputy Commissioner United Mikar and North Cachar Hills, with effect from the 10th December, 1964 to the 2nd March, 1966. A copy of the said order of the Government of Assam is exhibited as Annexure S-II to this Supplementary Counter Affidavit."The plain consequence of this denial is disastrous because the posts he had occupied in the intervening years anterior to his appointment as ISA officer are non-cadre posts and cannot therefore, possess the sanctity which officiation in cadre-posts may have. Secondly, the rule requires, as a condition precedent, officiation in a particular post declared as cadre post by the State Government plus approval thereof, by the Central Government. The affidavit on behalf of the Central Government has categorically stated thus:"From the 9th March, 1966, till the date of his appointment to the service that is 1st February 1967, he held non-cadre post of Chairman, Gauhati Development Authority and Liaison Officer, Industries. His officiation in the cadre post was not approved and his officiation in the ex cadre post was not counted for the purposes of his seniority because the ex cadre post of Chairman Gauhati Development Authority and Liaison Officer, Industries was not declared equivalent to a Cadre post by the State Government. Hence, the date of his appointment to the Service was the relevant date for the fixation of his seniority."(emphasis ours)11. We have already pointed out with reference to the rule in question that the declaration of equivalence has to be made by the State Government. Counsel for the petitioner rightly argues that such declaration can be made ex post facto and there is authority of this Court for that proposition (vide R. P. Khannas case, (1972) 3 SCR 548 = (AIR 1972 SC 2350 ) (supra)). However, Shri Sachin Chowdhary is not able to put his finger on any specific declaration of equivalence made by the State Government except to state that in the counter affidavit by the State Government there is a statement admitting the post of Additional District Magistrate and those higher in rank claimed to have been occupied by the petitioner to be factually correct. Super-added is the States averment which goes in substantiation of the petitioners contention and may well be extracted:"The posts mentioned in sub-paras (i) to (v) are equivalent to cadre posts of Additional District Magistrate, Deputy Secretary or Settlement Officer. The post mentioned in sub-para (vi) is a cadre post and the posts mentioned in sub-para (vii) were regarded in rank, status, and responsibility as above the cadre posts of Additional District Magistrate and Deputy Secretary. These posts are equivalent to the cadre post of Deputy Commissioners or Heads of Departments posts like Commissioners of Taxes and Registrar of Co-operative Societies of the I. A. S. Cadre." Could there be a declaration without a formal notification to that effect? We think not, Governments speak and act formally and in solemn writing, not informally. In the present case no formal declaration is found but the State Government is prepared to go to the extent of helping the petitioner with the Statement :-"Formal declarations under Rule 9 of the 1. A. S. (Pay) Rules, 1954, are not necessary when non-cadre officers hold such ex cadre equivalent posts."Shri Sachin Choudhary uses this averment to contend that the State Governments affidavit may be treated as a formal declaration of equivalence but the difficulty is that there has been an amendment of the Rules in April 1967 whereby the power of the State Government to make retroactive declarations is deleted. Moreover as the Solicitor General points out such declaration as is found to have been made by the State has reference to the Pay Rules and not the Seniority Rules which bear upon, the present dispute.12. Another impediment confronting the unfortunate, petitioner is that the proviso to Rule 3 (3) (b) requires not merely the State Governments declaration regarding the posts being equal to cadre post but such officiation must be with the approval of the Central Government; none such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Government. The Solicitor General not content with these vital flaws points out two more shortcomings. In his submission, some of the posts occupied by the petitioner were purely temporary and this is testified by the record and so such short-term ad hoc officiation is insufficient. Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March 9. 1966.Continuity once disrupted, the claim breaks down. Service for long years comes to naught merely because of a weeks discontinuity. In law a short gap may prove a costly failure. The plea that this little interval was bridged by the joining time taken by the official may be good as an explanation for not taking charge immediately, but cannot cover up the legal ingredient of continuity in service.13. True, on account of certain formal non-conformance with the strictness of the rules, the petitioner lose the battle, but we hope the State will have compassionate regard to the substantial fulfilment of the qualifications for pre-dating his seniority in the IAS the rules predicate. The long but unavailing officiating experience of the petitioner may judiciously be taken into account by the State when promotional prospects arise not because the petitioner has a right but because his past should not altogether be lost.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. We have no doubt that the petitioner has occupied responsible positions vis-a-vis cadre posts. Even so, the formal requirements of the rule just quoted are basic to his claim for adding special antecedent merit to pre-date his entry into the IAS. We may safely proceed on the facts affirmed in the counter-affidavit of the Union of India since no exception can ordinarily be, or has been, taken to that course.We have already pointed out with reference to the rule in question that the declaration of equivalence has to be made by the State Government. Counsel for the petitioner rightly argues that such declaration can be made ex post facto and there is authority of this Court for thatShri Sachin Chowdhary is not able to put his finger on any specific declaration of equivalence made by the State Government except to state that in the counter affidavit by the State Government there is a statement admitting the post of Additional District Magistrate and those higher in rank claimed to have been occupied by the petitioner to be factually correct.Another impediment confronting the unfortunate, petitioner is that the proviso to Rule 3 (3) (b) requires not merely the State Governments declaration regarding the posts being equal to cadre post but such officiation must be with the approval of the Central Government; none such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Government. The Solicitor General not content with these vital flaws points out two more shortcomings. In his submission, some of the posts occupied by the petitioner were purely temporary and this is testified by the record and so such short-term ad hoc officiation is insufficient. Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March 9. 1966.Continuity once disrupted, the claim breaks down. Service for long years comes to naught merely because of a weeks discontinuity. In law a short gap may prove a costly failure. The plea that this little interval was bridged by the joining time taken by the official may be good as an explanation for not taking charge immediately, but cannot cover up the legal ingredient of continuity in service.13. True, on account of certain formal non-conformance with the strictness of the rules, the petitioner lose the battle, but we hope the State will have compassionate regard to the substantial fulfilment of the qualifications for pre-dating his seniority in the IAS the rules predicate. The long but unavailing officiating experience of the petitioner may judiciously be taken into account by the State when promotional prospects arise not because the petitioner has a right but because his past should not altogether be lost.