Case: Vinod Giri Goswami &amp; Ors Vs. The State of Uttarakhand &amp; Ors

the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A). 13. In the instant case, the promotees were appointed on ad hoc basis in the year 2004. There is no dispute regarding their appointment on a regular basis in the year 2007. According to the 1982 Rules and the 2005 Rules, appointment by promotion to the post of Deputy Collector shall be as per the Promotion for Selection in consultation with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970. Procedure for promotion is laid down in the 1970 Rules which provide that the eligibility list or lists have to be forwarded by the State Government to the Commission which conducts the selection. The appointment of the promotees in the year 2004 is on ad hoc basis for a period of one year without following the procedure prescribed under the Uttaranchal Promotion by Selection in consultation with Public Service Commission (Procedure) Rules, 2003. As the promotions in 2004 were made in clear violation of the Rules, the promotees are not entitled to claim seniority from the dates of initial appointments as Deputy Collectors. The High Court committed an error in treating the ad hoc appointments of the promotees to be only procedurally defective to give them the benefit of the ad hoc service by applying the judgment in Direct Recruit Class II Engineering Officers Association (supra). The High Court further went wrong in holding that the promotees were entitled for the benefit of ad hoc service in view of proviso to sub-rule (4) of Rule 24 of 2005 Rules. No doubt, according to the proviso to sub-rule (4) Rule 24 a promotee is entitled to count ad hoc service provided he continuously worked till he is regularly promoted in a post within the promotee quota. No finding is recorded by the High Court on this very important prerequisite whether promotees appointed on ad hoc basis in 2004 continuously worked in a post within the promottee quota. On the other hand, it is clear from the Office Memorandum dated 21.10.2015 that only 2 posts were available in the promotee quota during 2003-2004. Those posts also were allotted to promotees who worked in Uttar Pradesh throughout their career and never joined in the State of Uttarakhand. Admittedly, they are seniors to promotees in the instant case. Therefore, the High Court was not right in giving the benefit of ad hoc service to the promotees on the basis that the proviso to Rule 24(4) of 2005 Rules comes into play. In view of the above, we do not think it necessary to adjudicate the dispute relating to the proviso to Rule 24 which exists in the English translation and does not find place in the Hindi copy. 14. A close scrutiny of the Office Memorandum dated 21.10.2015 would show that the exercise done by the State of Uttarakhand in the matter of identification of vacancies within the direct recruit and promotee quota from 2000-2001 to 2006-2007 is correct. The objection of the promotees is that the Deputy Collectors who were allotted to Uttarakhand never worked in the State of Uttarakhand and they continued to work in the State of Uttar Pradesh from which they retired. The grievance of the promotees is that if such officers are included in the seniority list, the promotees will suffer as they would be placed below the direct recruits who were appointed in the year 2005. The allotment process was delayed due to some officers continuing in Uttar Pradesh on the strength of interim orders in Writ Petitions filed by them challenging the allotment orders. Some of them have retired on attaining the age of superannuation while working in Uttar Pradesh. The allotment process ultimately was finalised on 02.09.2015. After the final allocation, persons who did not join in Uttarakhand and retired in Uttar Pradesh have to be treated as employees of the successor State of Uttarakhand. Moreover, the allotment was made w.e.f. 09.11.2000 which leaves no doubt that they cannot be ignored while finalising the quota for promotees and deciding the allotment of slots for the personnel in the order of their seniority.

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

Explanation:
1[ds]In Direct Recruit Class II Engineering Officers Association (supra), this Court held that the seniority of a person has to be counted from the date of his initial appointment if he was appointed in a post in accordance with the Rules. The corollary 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 determining seniority. It was further held that the period of officiation can be counted if the initial appointment is not made by following the procedure laid down by the Rules but the appointees continued in the post uninterruptedly till the regularisation of his service in accordance with the Rules. This Court settled a controversy relating to the application of the principles laid down in Direct Recruit Class II Engineering Officers Association (supra) by a judgment in State of West Bengal & Ors. v. Aghore Nath Dey & Ors. (1993) 3 SCC 371   It was held as follows:22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed according to rules. The corollary set out in conclusion (A), then is, that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority23. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other24. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A)25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, if the initial appointment is not made by following the procedure laid down by the rules and the latter expression till the regularisation of his service in accordance with the rules. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A)13. In the instant case, the promotees were appointed on ad hoc basis in the year 2004. There is no dispute regarding their appointment on a regular basis in the year 2007. According to the 1982 Rules and the 2005 Rules, appointment by promotion to the post of Deputy Collector shall be as per the Promotion for Selection in consultation with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970. Procedure for promotion is laid down in the 1970 Rules which provide that the eligibility list or lists have to be forwarded by the State Government to the Commission which conducts the selection. The appointment of the promotees in the year 2004 is on ad hoc basis for a period of one year without following the procedure prescribed under the Uttaranchal Promotion by Selection in consultation with Public Service Commission (Procedure) Rules, 2003. As the promotions in 2004 were made in clear violation of the Rules, the promotees are not entitled to claim seniority from the dates of initial appointments as Deputy Collectors. The High Court committed an error in treating the ad hoc appointments of the promotees to be only procedurally defective to give them the benefit of the ad hoc service by applying the judgment in Direct Recruit Class II Engineering Officers Association (supra). The High Court further went wrong in holding that the promotees were entitled for the benefit of ad hoc service in view of proviso to sub-rule (4) of Rule 24 of 2005 Rules. No doubt, according to the proviso to sub-rule (4) Rule 24 a promotee is entitled to count ad hoc service provided he continuously worked till he is regularly promoted in a post within the promotee quota. No finding is recorded by the High Court on this very important prerequisite whether promotees appointed on ad hoc basis in 2004 continuously worked in a post within the promottee quota. On the other hand, it is clear from the Office Memorandum dated 21.10.2015 that only 2 posts were available in the promotee quota during 2003-2004. Those posts also were allotted to promotees who worked in Uttar Pradesh throughout their career and never joined in the State of Uttarakhand. Admittedly, they are seniors to promotees in the instant case. Therefore, the High Court was not right in giving the benefit of ad hoc service to the promotees on the basis that the proviso to Rule 24(4) of 2005 Rules comes into play. In view of the above, we do not think it necessary to adjudicate the dispute relating to the proviso to Rule 24 which exists in the English translation and does not find place in the Hindi copy14. A close scrutiny of the Office Memorandum dated 21.10.2015 would show that the exercise done by the State of Uttarakhand in the matter of identification of vacancies within the direct recruit and promotee quota from 2000-2001 to 2006-2007 is correct.The objection of the promotees is that the Deputy Collectors who were allotted to Uttarakhand never worked in the State of Uttarakhand and they continued to work in the State of Uttar Pradesh from which they retired. The grievance of the promotees is that if such officers are included in the seniority list, the promotees will suffer as they would be placed below the direct recruits who were appointed in the year 2005.The allotment process was delayed due to some officers continuing in Uttar Pradesh on the strength of interim orders in Writ Petitions filed by them challenging the allotment orders. Some of them have retired on attaining the age of superannuation while working in Uttar Pradesh. The allotment process ultimately was finalised on 02.09.2015. After the final allocation, persons who did not join in Uttarakhand and retired in Uttar Pradesh have to be treated as employees of the successor State of Uttarakhand. Moreover, the allotment was made w.e.f. 09.11.2000 which leaves no doubt that they cannot be ignored while finalising the quota for promotees and deciding the allotment of slots for the personnel in the order of their seniority.