Bhupendra Nath Hazarika & Anr vs State Of Assam & Ors

3. Shorn of unnecessary details, the facts which are requisite to be stated are that the Assam Public Service Commission (for short “the Commission”) issued an advertisement No. 9/92 dated 23.6.1992 inviting applications for preliminary examination for the Combined Competitive Examination, 1992-93 for selecting candidates for various posts and services including thirty vacancies in the Assam Police Service (Junior Grade) (for short “the APS”) as requisitioned by the Commissioner-cum- Secretary to the Government of Assam in the Department of Personnel on 5.9.1992. On 29.8.1992, the Commission published another advertisement No. 12/92 inviting applications for filling up of 20 posts in the APS under Rule 5(1)(c) of the 1966 Rules. There is no dispute that the initial 30 vacancies were put in the compartment of “regular batch” or “direct recruitment” and the other 20 vacancies, which were sought to be filled up by way of special drive, were kept in the category of “special batch” or “promotional recruits”. The main examination for the regular batch was held on 15.11.1992 for total marks of 1400. The examination for the special batch was held on 22.11.1992 for 650 marks. The Commission declared the result in respect of regular batch on 23.4.1993 and, vide letter dated 24.4.1993, recommended 30 candidates for appointment in order of merit. Despite the recommendation by the Commission, no appointment was made till 13.8.1993. At this juncture, the Commissioner-cum-Secretary to the Government of Assam in the Department of Home requested the Commission to furnish the select list of the special recruits at the earliest. On the basis of the aforesaid letter of request, the Commission sent its recommendations in respect of the candidates belonging to the special batch and on the basis of the said recommendation, vide notification No. HMA.478/86/Pt-I/17 dated 3.7.1993, the respondent Nos. 6 to 24 before the tribunal were appointed. The respondent No. 25 was appointed on 31.81994. Thereafter, the Competent Authority, vide notification No. HMA.110/93/43 dated 13.8.1993, appointed 28 persons from the regular batch. As the recruits of the special batch were appointed earlier, they were treated senior to the recruits belonging to the regular batch.

4. The facts, as further uncurtained, are that the determination of seniority came to the notice of the recruits of the regular batch at the time of their confirmation of service in the year 1999. Being dissatisfied with the action of the authorities, they immediately submitted a representation. When the representation was pending consideration, a provisional gradation list showing the inter se seniority as on 31.12.1992 was published on 12.3.1999. In the said provisional gradation list, the recruits of the special batch were shown as senior to the recruits of the regular batch. As warranted, the recruits belonging to the regular batch filed their objections to the fixation of seniority on 24.9.1999, but without publishing the final gradation list, the respondent No. 3, namely, the Secretary in the Department of Home, promoted 14 officers belonging to the special batch and 16 officers belonging to the regular batch to the Senior Scale of APS (Grade-II). In the promotional order, the officers belonging to the regular batch were shown below the officers belonging to the special batch. Because of the aforesaid situation, the direct recruits invoked the jurisdiction of the tribunal for the apposite determination of seniority claiming to be senior to the respondent Nos. 6 to 24.

9. Being dissatisfied with the order passed by the tribunal, as has been stated earlier, certain writ petitions were preferred and some writ petitions were directly filed before the High Court seeking quashment of the appointment of the private respondents as Deputy Superintendent of Police. The prayer in the other batch of writ petitions was to treat the direct recruits as per the rules regard being had to their date of appointment and to extend the benefit of earlier services as stipulated under Rule 18 of the 1966 Rules.

24. Be it noted, the tribunal as well as the High Court has placed reliance on Rafiquddin and others (supra) to refix the seniority and justify the direction for refixation of seniority by putting the direct recruits over and above the special recruits on the foundation that it was necessitous to strike the balance. In Rafiquddin case (supra), the U.P. Public Service Commission published a notification on September 3, 1970 inviting applications for recruitment to 85 posts of Munsifs. It recommended names of 46 candidates for appointment on October 25, 1971. The State Government requested the Commission to recommend some more candidates by suggesting that minimum of 40% marks may be reduced to 35%. Considering the said request, the Commission forwarded another list of 33 candidates on April 25, 1972. All the 79 candidates were appointed between May 1972 to June 12, 1973. Thereafter, on July 17, 1973, a notification was issued determining the inter se seniority of all the 79 candidates under Rule 19 of the U.P. Civil Service (Judicial Branch) Rules, 1951. In the meantime, the UP Public Service Commission held another competitive examination for appointment to the posts of 150 Munsifs and, eventually, they were appointed on different dates between 1975 to 1977. As the factual narration would show, a proposal was sent by the State Government to the Commission requesting it to reconsider the result of the examinations of 1967, 1968, 1969 and 1970 for appointment to the service of persons/candidates who might have obtained 40% of marks or more in the aggregate even if they had failed to secure the minimum marks in the viva voce test. The Commission declined to accede to the said request. A meeting was held by the High Level Committee and, eventually, a third list of 37 candidates was sent by the Commission for the aforementioned years in which list the name of Rafiquddin featured. As out of 37 candidates, 16 had already appeared in the 1972 examination and had been selected, the Government requested the Commission to select 16 more candidates from the 1972 examination. In pursuance of the Government’s request, the Commission forwarded the list of 16 candidates for appointment. In this factual matrix, in March, 1977, the State Government published a seniority list of successful candidates of the competitive examination of 1970. The candidates belonging to the third list made a representation to the High Court for determining their seniority in accordance with Rule 22 of the Rules on the footing that they were recruited to service in pursuance of the 1970 examination and, therefore, they were entitled to the seniority as candidates belonging to that examination irrespective of their appointment made in 1975. They claimed seniority above the recruits of the 1972 examination. As the representation was rejected, a writ petition was filed and the High Court allowed the same on the ground that as the third category candidates were appointed on the basis of the result of the 1970 examination, they were to be treated as senior in accordance with the stipulates engrafted under Rule 22 of the Rules. While dealing with such a situation, this Court scanned the anatomy of the Rules and its purport, the role of the Commission and held that the selection and appointment of 21 Munsifs at the later stage was invalid. However, it declined to strike down their appointments in view of the fact that they had already rendered 12 years of service.

(2) Inter se seniority of persons appointed under any of the three clauses of R. 5(1), shall be in the order in which their names appear in the list from which the appointment is made.

(3) The date of appointment for the purposes of this rule shall be, if a date is specified in the notification of appointment, such date, or if no such date is specified, the date on which such notification is issued.

(4) Notwithstanding anything contained in sub-Rr. (1) to (3) the seniority of a person who does not join the service within three months of the date of appointment as defined in sub-R.(3), shall be determined on the basis of the actual date of his joining the service.

(6) Inter se seniority of persons promoted to the senior grade of the service shall be in the order in which their names appear in the list from which the promotion is made.”

48. Before parting with the case, we are compelled to reiterate the oft- stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.

53. We have stated the role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretized. We say no more.

54. Consequently, all the appeals are dismissed leaving the parties to bear their respective costs.

November 30, 2012.