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CASE NO.:

Appeal (civil) 11961-11963 of 1996

PETITIONER:

Santosh Kumar and Others.

RESPONDENT:

G.R. Chawla and Others

DATE OF JUDGMENT: 10/09/2003

BENCH:

M. B. Shah & Dr. AR. Lakshmanan.

JUDGMENT:

J U D G M E N T

WITH

Civil Appeal Nos. 11964 of 1996 and 11965 of 1996

Dr. AR. LAKSHMANAN, J.

The questions involved in these appeals are identical and they are

being disposed of by this common judgment.

These appeals are directed against the common judgment dated

06.05.1994 passed by the High Court of Judicature at Allahabad in Writ

Petition Nos. 731 of 1991, 251 of 1994, 309 of 1994, 1897 of 1980 and 1663

of 1991.

The facts, in short, are as follows:-

According to the appellants, they were eligible for appointment to the

posts in question and the appointments were made on the basis of selection

made pursuant to the public advertisement and after considering claims of all

eligible candidates. In these circumstances, it was submitted that the entire

length of service of the appellants is entitled to be considered for the purpose

of seniority as held by the Constitution Bench of this Court in the case of

Direct Recruit Class II Engineering Officers' Association s vs. State of

Maharashtra and Others (1990) 2 SCC 715. However, the High Court held

that ad hoc services cannot be counted for the purpose of seniority. It was

further submitted that if the ad hoc appointment is made after satisfying all

tests for regular appointment and after considering the claims of all eligible

candidates, these appointments must be treated as substantive appointments

for the purpose of seniority and that the High Court fell in error in excluding

such period from seniority.

The High Court pronounced the impugned judgment whereby it was

held that the appellants/writ petitioners who are ad hoc appointees are not

entitled to claim seniority on the basis of continuous officiation. It was also

held that the direct recruit appointees/respondents were, in fact, appointed on

16.09.1982 and the corrections were made in their appointment letters mala

fide. The High Court also disbelieved the affidavit filed on behalf of the State

Government and the Director of Medical Services. Accordingly, the High

Court quashed the seniority list and directed preparation of fresh seniority list

in accordance with the guidelines mentioned therein.

In most of the writ petitions, dispute of inter se seniority has been

raised. While raising dispute of seniority, the selection made by the Pubilc

Service Commission (hereinafter referred to as "the PSC") was also

challenged. In one or two of the writ petitions, recommendations of the PSC

were accepted by the State Government. In the light of the facts and

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circumstances, the High Court held as follows:-

"We hold that the inter se seniority of all the Inspectors of Drugs,

whether promotees or direct selected by the Public Service

Commission deserved to be determined in accordance with the

merit prepared by the Public Service Commission. As far as those

Drugs Inspectors who either did not appear before Public Service

Commission or appeared but failed to be selected and whose

services where regularised by the State Government would be

placed below the persons selected by Public Service Commission in

accordance with the Rule-7 of the Regularisation Rules.

In view of what has been indicated herein above writ

petitions bearing No. 731/91 G R Chawls & Ors V/s State of U.P. &

Ors and No. 251 [SB]/1994 A K Pandey and others V/s State of U.P.

& others partly succeeds. A writ in the nature of Certiorari quashing

the order dated 12-1-1991 passed by Director General, Medical

Health and Family Welfare, Govt. of U.P. determining the seniority of

Inspectors of Drugs, is issued. Opposite parties are directed to re-

determine the seniority of Inspectors of Drugs in the light of the

observations mentioned in this order. Writ Petitions bearing Nos.

1897/80, 1663/91 and 309 [SB]/1994 are dismissed."

Dis-satisfied with the above judgment, the writ petitioners have come

up on appeal to this Court and contended that the High Court has completely

ignored the pleadings of the appellants/writ petitioners and failed to

appreciate that the controversy was not confined to the determination of

seniority amongst the promotees and direct recruits but pertain to the

appellants' claim for regularisation. Learned counsel for the appellants

submitted that the appellants were appointed on the basis of public

advertisement and on the recommendations of a newly constituted Selection

Committee and after considering all the eligible candidates and that the

appointees continued on the post uninterruptedly till regularisation in their

services. In these circumstances, it was submitted that the entire length of

service of the appellants are entitled to be considered for the purpose of

seniority. It was further argued that the appellants having been fully qualified

and appointed after facing the Selection Committee duly constituted for the

said purpose were entitled for regularisation prior to any direct recruitments

as contained in Rule 4 (1) and Rule 7 of the Regularisation Rules. It was also

submitted that the High Court has erred in reckoning the seniority of the

respondents/direct recruits from 16/17.09.1982 which date was specifically

scored out and for valid reasons, namely, to comply with the provisions of

Rule 4(1) of the Regularization Rules. It was also further submitted that the

High Court has failed to appreciate that the respondents actually joined the

post after 23.09.1982 only and hence they could not have been granted

seniority from 16/17.09.1982. It was also argued that the appellants became

the members of the services from the date of joining the post and not from the

date of their regularisation vide Government Order dated 22.09.1982.

Learned counsel for the respondents, per contra, submitted that the High

Court has dealt with every aspect/arguments led by both the parties before it

in accordance with the principles laid down by this Court in a number of

cases.

We have perused the judgment of the High Court. Three issues were

raised before the High Court which read as under:

1. That the State Government has no authority to disturb the merit

list of the PSC and adopt the policy of pick and choose out of

the merit list prepared by the PSC;

2. That the officials of the Department of Medical Health and

Family Welfare has no authority to manipulate the records in

order to favour some of the candidates who have been

regualirsed under the Regularization Rules.

3. Even according to Rule 7 of the Regularisation Rules, the

respondents herein were entitled to be placed above the

candidates who have been regularised under the

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Regularisation Rules.

In order to appreciate the correct position, few facts as regards the

appointment through PSC with special reference to the appellants/writ

petitioners before this Court is necessarily to be stated.

In the year 1979, the State Government framed the U.P.

Regularisation of Ad hoc Appointments (for posts within the purview of the

PSC) Rules, 1979 which came into effect from 14.05.1979 and in the year

1980, the State Government framed U.P. Inspectors of Drugs (Services)

Rules, 1980 which provided for the direct recruitment for the post of inspector

of drugs through the PSC. In the year 1976, a requisition for selection of 27

candidates on the post of Inspectors of Drug was sent by the U.P.

Government to the UPPSC. On 14.05.1977 an advertisement was issued by

the UPPSC for the said 27 posts in which qualifications for the candidates

who wanted to apply was also given. In pursuance of the said advertisement,

on 21.05.1977, the Department of Health instructed all the departmental

candidates to apply for their appointment against the post advertised by the

PSC. Interviews were held in the month of December, 1980 and the result

thereof was communicated to the State of U.P. on 14.10.1981. On the said

date, the PSC sent its recommendation to the State Government giving the

list of 25 candidates for appointment in order of merit which included 11

candidates who were already working as Drug Inspectors on ad hoc basis in

the department.

On receipt of this list, in the Department in October, 1981 some of the

candidates including the appellants/writ petitioners herein who were already

working in the Department found their names in the merit list below the

candidates over directly recruited and as such they persuaded the State

Government to initiate the regularisation under the Regularisation Rules

which had already come into force in 1979. The Director, Medical Health and

Family Welfare, vide its order dated 16.09.1982 by means of a letter ordered

that subject to the seniority vis-à-vis other persons appointed to the post from

time to time, the Department at a later date appointed the candidates who

were direct recruits. Subsequently, on 17.09.1982 itself such candidates

were also posted at different places. The candidates who are already

working on ad hoc basis and had influenced the Department to initiate

regularisation proceedings when came to know of such orders tried to

manipulate at the lower level in the Department and managed to get despatch

number as well as the dates scored out. Similarly, despatch number was

scored out in many instances. Photocopies of the letters dated 16.09.1982

and 17.09.1982 have been marked as Annexures A & B. A perusal of

Annexures A and B would show that the Director, Medical Health had issued

the letter dated 16.09.1982 and Food and Drug Controller issued the letter

dated 17.09.1982 under their own signatures with the date under the

signatures, these dates under the signatures could not be changed by the

officials who tried to manipulate in this regard. According to the respondents,

the manipulations were done by the officials because they could manage to

get their appointment letter issued on 22.09.1982 with the despatch No. 8165

i.e. prior to the despatch No. mentioned in the letter dated 16.09.1982 after

scoring out the same. This letter dated 22.09.1982 has been marked as

Annexure-C. On 12.01.1991, the Department issued seniority list in which

regularised drug inspectors appointed on 22.09.1982 were allowed to steal

march over the direct recruits who became the members of service on

16/17.09.1982. As already noticed, being aggrieved by the seniority list, the

respondents herein challenged the same before the High Court of Allahabad

by filing writ petition.

It was argued on behalf of the regularised Drug Inspectors that their

seniority should reckon from the date they were appointed as Drug Inspectors

and that their regularisation preceded with the appointment of directly

recruited persons and, therefore, they should be placed above in the seniority

list. It was also stated in the reply that the persons who have been selected

by the PSC did not possess the requisite qualification. At the time of hearing,

it was brought to our notice that most of the appellants/writ petitioners have

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no locus standi to plead as their regularisation was not in accordance with the

Regularisation Rules. It was argued that according to Regularisation Rules,

only those persons who were directly recruited on ad hoc basis before

01.01.1977 and were continuing in service as such on the date of

commencement of these Rules were entitled for regularisation and that

appellant/writ petitioner Nos. 5,6 and 7 did not even qualify under this clause

as they were earlier appointed on temporary basis and after break in service

they were re-appointed in 1978 and as such they were not continuing in

service on ad hoc basis before 01.01.1977. It was also brought to our notice

that as per Regularisation Rules, the candidates who possess requisite

qualifications prescribed for regular appointment at the time of such ad hoc

appointment would be eligible for regularisation and in the case of

appellant/writ petitioner Nos. 1-4 they did not possess the requisite

qualifications at the time of their appointment as such they were not entitled to

be regularised.

A perusal of the judgment of the High Court would clearly go to show

that the High Court has exhaustively dealt with all the issues and recorded a

finding after dealing with the principles laid down by this Court in regard to

such points/contentions. The High Court also on the issue of cutting and

over-writing has given a definite finding on the point whether the State

Government was justified in adopting the policy of pick and choose from the

merit list prepared by the PSC. The High Court, after taking into

consideration the principles laid down by this Court in a number of judgments,

recorded a finding as follows:-

"It is evident that although in the instant case, recommendation of

the Public Service Commission was advisory in nature, it was open

for the Government either to accept the recommendation or decline

to accept the same but if it has chosen not to accept the

recommendation of the Commission the matter must have to be

placed before the Legislative Assembly, but in the instant case it

was not done. As stated above, some of the promotees as well as

direct recruits, both were selected by Public Service Commission in

order of merit. Instead of accepting the recommendation in toto, the

State Government regulairsed the services of certain promotees and

tried to allow the promotees to steal march over the direct recruits

when inter se seniority ought to have been determined in

accordance with seriatum of the merit list of the Public Service

Commission. The contention of the State Government that as the

process of regularisation was at advance stage, hence no direct or

otherwise appointment could be made, unless the services of the

persons who were already working on ad-hoc basis were

regularised and were given appointment orders, when Rule-7 of the

U.P. Regularisation of Adhoc appointment (on posts within the

purview of Public Services Commission) Rules, 1979 clearly

indicates that a person appointed under these rules shall be entitled

to seniority only from the date of order of appointment after selection

in accordance with these rules and shall in all cases, be placed

below the persons appointed in accordance with the relevant service

rules, or as the case may be, the regular prescribed procedure, prior

to the appointment of such person under these rules. There was no

impediment in the way of the State Government to have regularised

services of the promotees/ad-hoc Inspectors of Drugs. But the State

Government adopted a policy of pick and choose, out of the list and

wrongly allowed them to steal a march over the direct recruits in the

matter of seniority which cannot be permitted. As according to the

regularisation rules, itself, promotees/adhoc whose services were

regularised, only deserved to be placed below the persons

appointed in accordance with the relevant service rules. The action

of the State Government by approving the list, prepared by

Commission in part and rejection in part was totally vitiated."

On the point whether the appellants/writ petitioners were entitled to the

seniority from the date of their original initial appointment, the High Court

observed as follows:-

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"In the present case rule of the seniority clearly provides that

seniority in any category or cadre post shall be determined from the

date of the order of substantive appointment. The posts of Drug

Inspectors was within the purview of Public Service Commission.

But, ad-hoc appointments were made. The said ad-hoc

appointments cannot be deemed to be the substantive

appointments. It were in the nature of stop gap or fortuitous

appointments, hence the period during which ad-hoc appointees

worked, cannot be counted for the purposes of seniority."

Our attention was drawn to the appointment letters enclosed as

Annexure-9 at pages 152-156 of the special leave petition which would show

that the initial appointment of the appellants were on purely temporary as stop

gap arrangements.

As regards the qualification of the respondents herein, the High Court

has recorded a finding which is quoted below:

"In most of the writ petition, dispute of inter se seniority has been

raised. While raising dispute of seniority, the selection made by the

Public Services Commission was also challenged. In one or two of

the writ petitions, recommendations of the Public Service

Commission were accepted by the State Government. Thus the

appointment became final and a vested rights have been created in

favour of those who were selected. In a proceedings for determining

the validity of the seniority list, it is not open for any person either

selected by Public Services Commission or whose services have

been regularised to challenge the selection made by the Public

Service Commission and the appointment made by the State

Government by the Public Service Commission was made in the

year 1981 and it would be unfair and unjust for this Court to declare

the selection void. Hence, the third and last plea raised on behalf of

the ad-hoc/promotees fails."

After recording the finding, the High Court concluded that the inter se

seniority of all the Inspectors of Drugs whether promotees or direct selectees

by the PSC deserved to be determined in accordance with the merit prepared

by the PSC. In this regard, the High Court has issued further directions with

reference to Rule 7 of the Regularisation Rules.

It was contended by learned counsel for the appellants that in view of

Rule 4, appellants are required to be regularised first and thereafter, newly

appointed direct recruits are required to be appointed/confirmed. This

contention has no force. This contention has to be negatived in view of the

specific finding by the High Court that direct recruits were appointed either on

16/17.09.1982 and the services of the appellants were regularised only on

22.09.1982.

The common judgment passed by the High Court, in our view, does

not call for any interference and all the appeals fail and are dismissed.

However, there will be no order as to costs.