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

1. A senior civil servant of the Indian Administrative Service, brought in by promotion and borne on the cadre of the Assam State (now of the joint cadre of Assam and Meghalaya), seeks, in this petition under Article 32, redress of alleged infraction of his fundamental right to equality under Article 16 ,vis-a-vis certain direct recruits.Stripped of details and in simple terms the gravamen of the petitioners grievance is that while he is eligible to be placed above serial number 34 in the I. A. S. Gradation List (Annexure F), he has been illegally pitch-forked into serial number 65. His real length of service has been lopped off by denial of a considerable period spent in posts equivalent in status and responsibility to IAS cadre posts and in violation of Rule 3 (3) of the I. A. S. (Regulation of Seniority Rules, 1954.Back to the facts. The petitioner came into the Assam Civil Service, Class I, in 1949, was confirmed as such in 1957 and since than spiralled his way up to fill a set of responsible position. By the end of 1961 he was included in the Select List prepared under the provision of the I. A. S. (Appointment by Promotion) Regulation, 1955. Although this officer was admittedly functioning in senior position equivalent to cadre posts reserved for IAS personnel, his actual induction into this coveted Indian Administrative Service took place only on February 1, 1967 and his confirmation therein, in the Senior Scale, only a year later. The dispute centres round the claim of the petitioner to credit for alleged continuous officiation in his offices, equivalent to cadre posts, while fixing his date of birth into this privileged All India Service. His official horoscope and even post-retirement prospects will very much depend on the year of entry into this close IAS preserve.7. The impressive set of posts occupied by the petitioner do credit to his claim. They begin with June 2, 1960 and run on without a break upto when he was regular! promoted into the IAS except for a week gap early in March 1966. The contretemps is that while rank-wise these offices are cadre posts when the petitioner filled them, no declaration as demanded by the relevant Rule 3 (3) (b) had been made. This legal omission is being pressed into service by the Solicitor General to deny what in morality belongs to the petitioner.

Reasoning:
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.