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Judgment
Instant writ petition is filed by the petitioner challenging the impugned Gradation List communicated by letter dated 30th December, 1999 as at Annexure-6 by placing opposite party No.3 above her and the latter recommendation for promotion vide her Annexure-7 and her subsequent promotion dated 13th October, 2006 to the post of Nursing Sister and to direct opposite party No.2 to declare the seniority and allow promotion granting the consequential and financial benefits by quashing Annexures-10 and 11 on the ground stated.
According to the petitioner, it is pleaded on record that the petitioner was one of the eligible candidates selected to fill up the post of Staff Nurse in the order of merit as per Annexure-1 and though the vacancies were regular, yet the appointment was given to her for two months by an order vide Annexure-2 and was extended from time to time without any break in a regular scale of pay. It is pleaded that in view of the regular selection against the vacancies at Acharya Harihar Regional Cancer Center for Cancer Research and Treatment, the petitioner’s appointment was regular from the inception, however, pursuant to the order dated 3rd September, 1994 (Annexuxre-4), it was treated as regular and surprisingly opposite party No.3 was not a candidate in the selection and subsequently, engaged on contractual basis but was treated as regular. According to the petitioner, provisional Gradation List was prepared as per Annexure-5 indicating therein opposite party No.3 being placed above her and for that, she submitted a representation on 2nd June, 1999 for correction but without considering such an objection, it was final list vide Annexure-6 though it has been mentioned to be provisional. It is further pleaded that without communicating any decision on the representation of the petitioner challenging the Gradation List, opposite party No.3 was recommended to the next higher post, namely, Nursing Sister as per proceeding dated 11th October, 2006 at Annexure-7 and on the basis of such recommendation, she was promoted on 13th October, 2006 vide Annexure-8. It is claimed by the petitioner that during her long career of service for nearly fifteen years, no adverse was ever recorded and in that connection, on her above grievance, the Government called for a report and in response to the same, opposite party No.2 by letter dated 6th April, 2009 at Annexure-9 submitted a detailed reply mentioning therein that opposite party No.3 was appointed on contractual basis on 13th September, 1992 and was made regular on 3rd September, 1994 and has been placed above in the Gradation List taking into consideration the date of birth.
As per the bylaw of the Cancer Institute, appointment to all Class-III posts shall be made by opposite party No.2 on the basis of recommendation of the Staff Selection Committee, which is to fix a criteria for the same and since, opposite party No.3’s appointment was contractual and subsequent to the petitioner and that she was never selected by the Committee, for appointment itself, is illegal and so the regularization. It is alleged that opposite party No.3 was totally ineligible for promotion to the post of Nursing Sister and therefore, any such decision treating her senior to the petitioner with consequential promotion is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. Upon receiving information under the RTI Act and letter dated 6th April, 2009 i.e. Annexure-9 of opposite party No.2, the petitioner submitted a representation for promotion in place of opposite party No.3 by treating her senior but it was rejected vide Annexure-10 on the premise that she is senior on the basis of date of birth. Lastly, it is pleaded that the petitioner’s representation was disposed of and rejected with an intimation to her by a non-speaking order and therefore, under the circumstances as above, the Gradation List needs a correction with a direction to opposite party No.2 to promote her in place of opposite party No.3 and to grant all such consequential benefits upon such promotion to the post of Nursing Sister. On the other hand, opposite party No.2 referring to the counter affidavit filed pleaded therein that the petitioner and two others have given temporary appointment on 16th December, 1991 for a period of two months to the post of Staff Nurse for a period of two months vide Annexure-2 and opposite party No.3 was appointed on 3rd September, 1992 to the same post on temporary basis with a consolidated pay of Rs.1015/- and thereafter, was also given the scale of pay attached to the post and such temporary appointments were extended time to time and in the meanwhile, they were appointed and absorbed on regular basis as Staff Nurse vide order dated 3rd September, 1994 with immediate effect and at that time, the provisional Gradation List of Class-III and Class-IV non-gazetted employees working in Cancer Institute was published on 5th May, 1999 inviting objections within a period of one month but the objection/representation of the petitioner dated 2nd June, 1999 to it was not accepted as she and opposite party No.3 received regular appointment on 3rd September, 1994 and the later was placed above her therein being senior in age. It is also pleaded that considering the objections received and final result in O.J.C. No.7469 of 1994, the final Gradation List i.e. Annexure-6 was published on 30th December, 1999 and therein, opposite party No.3 was placed above the petitioner and it was not challenged thereafter rather it has been questioned almost after 11 years and therefore, any such plea demanding seniority is liable to be rejected on the ground of the lane laches itself. The further pleading is that on 11th October, 2006, the Staff Selection Committee after considering the eligibility criteria and performance recommended the name of opposite party No.3 for promotion to the post of Nursing Sister and on the basis of such recommendation, she was promoted by order dated 13th October, 2006 and even that, the decision was not challenged by the petitioner. According to opposite party No.2 in so far as Government letter dated 18th February, 2009 is concerned, in response to the same, it was clarified vide Annexure-9 stating therein the above facts and about the rejection of recommendation dated 2nd June, 1999 of the petitioner for rectifying her seniority in the provisional Gradation List and publication of the final on 30th September, 1999. It is pleaded that promotion to the post of Nursing Sister is considered by Staff Selection Committee after assessing the merit-cum-suitable and accordingly promoted opposite party No.3 as per the rules reiterating the fact that she as well as petitioner were initially appointed as Staff Nurse on temporary basis and absorbed on 3rd September, 1994 in the regular scale of pay and therefore, the claim that there is illegality committed in the promotion and also in the preparation of the Gradation List is not tenable, all the more when, such promotion was not challenged by the petitioner immediately thereafter.
No rejoinder affidavit is filed by the petitioner.
Heard Mr. Das, learned counsel for the petitioner, Mr. Sahu, learned AGA for the State, Mr. Mohanty, learned counsel for opposite party No.2 and Mr. Mishra, learned counsel for opposite party No.3.
In course of hearing, Mr. Das, learned counsel for the petitioner cited a decision of the Apex Court in Md. Ashif and others and State of Bihar and others reported in 2010 (5) SCC 475 while challenging the appointment of opposite party No.3 with the seniority in the Gradation List. Mr. Mishra, learned counsel for opposite party No.3 referred to the following decisions such as V. Chandrasekaran & another Vrs. Administrative Officer & others (2012) 12 SCC 133; Ritesh Tiwari & another Vrs. State of UP & others (2010) 10 SCC 677; Chennai Metropolitan Water Supply and Sewerage Board and others Vrs. T.T. Murali Babu (2014) 4 SCC 108 and K. Meghachandra Singh and others Vrs. Ningam Siro & others (2020) 5 SCC 689. Admittedly, the petitioner joined the cancer institute in the year 1991. According to the petitioner, such selection was against regular posts but temporary appointments were given to her and two others and it continued till regularization. It is not denied by opposite party No.3 that the petitioner joined earlier to opposite party No.3 even though there is reference to Annexure-9 only to indicate that opposite party No.2 rejected the representation dated 2nd June, 1999 demanding her seniority in the provisional Gradation List and publication of the final on 30th December, 1999. The final Gradation List was prepared and promotion of opposite party No.3 to the post of Nursing Sister was considered by the Staff Selection Committee in the year 2006. The petitioner has challenged the promotion for opposite party No.3 almost after four years and even the Gradation List prepared almost 11 years before, it is made to understand that the petitioner upon receiving the information under the RTI Act questioned the Gradation List and also promotion of opposite party No.3. The claim of opposite party No.3 is that such promotion of opposite party No.3 has been considered on merit-cum-suitability criteria and she was placed above the petitioner in the final Gradation List being senior by age. The Court finds that initial appointments of the petitioner and opposite party No.3 and others to be on temporary basis and they were regular absorbed as Staff Nurse vide Annexure-4. If the grievance of the petitioner is that she is senior to opposite party No.3 having joined in 1991 and the latter was appointed on contractual basis in 1992 with reference to Annexure-9. There is no denial to the fact that the parties were regularized in 1994 at the same time by order dated 3rd September, 1994 (Annexure-4). The question is whether objection of the petitioner was justified with regard to the seniority vis-à-vis final Gradation List placing her below opposite party No.3? The other question is that whether opposite party No.3 could not have been considered for promotion to the post of Nursing Sister on the basis of the seniority when she joined after the petitioner as a Staff Nurse in the year 1992? As earlier stated, according to opposite party No.2, the seniority in the final Gradation List inter se parties is on the strength of age since opposite party No.3 is older to the petitioner and both being regularized by a common order dated 3rd September, 1994 vide Annexure-4. Admittedly, the Court finds that the petitioner and opposite party No.3 besides another were absorbed and appointed against regular vacant post in the scale of pay of Rs.1350 to Rs.2250 vide Annexure-4 with usual DA as admissible under the rules. It has to be determined whether seniority of opposite party No.3 in the final Gradation List is justified and also her promotion to the post of Nursing Sister in the year 2006 on the recommendation of the Staff Selection Committee of the Cancer Institute.
Referring to the decision in Md. Ashif (supra), the contention of Mr. Das, learned counsel for the petitioner that the appointment of opposite party No.3 as a Staff Nurse is illegal and as to be declared as such. It is contended that when the initial appointment is not lawful, the absorption of opposite party No.3 against regular vacant post and further promotion to the post of Nursing Sister shall have to be declared as invalid. Any such appointment of opposite party No.3 was never challenged by the petitioner even after her promotion. According to opposite party No.2, the appointment of opposite party No.3 was on temporary basis like the petitioner and her service was regularized in 1994. Nothing is revealed from the record as to the manner of appointment of opposite party No.3. Nonetheless, the appointments of the petitioner and opposite party No.3 have been treated as temporary. It is however admitted by opposite party No.2 that the petitioner and two others received temporary appointment on 16th December, 1991 for a period of two months and were given pay scale attached to the post of Staff Nurse, whereas, opposite party No.3 was appointed on 3rd September, 1994. Since the initial appointment of opposite party No.3 was not questioned and the challenge is only to the seniority in the Gradation List and subsequent promotion of opposite party No.3 at the instance of the petitioner, this Court is not inclined to accept the contention of Mr. Das, learned counsel that the very engagement of opposite party No.3 is to be declared invalid referring to the decision in Md. Ashif (supra) wherein the primary question involved was whether illegal appointment can be cured the passage of time and whether the employees initially appointment as voluntary health workers in State run dispensaries are entitled to regularization. In the above case, the Apex Court while dismissing the appeals upheld the cancellation of appointments with a conclusion that simply because an employee served for a long period nearly a decade and half, it does not legalize an appointment that was invalid from its inception. It has been emphasized therein that adherence to the rule of equality in terms of Articles 14 and 16 of the Constitution of India is mandatory in public employment and any such backdoor entry would violate the prescribed procedures and qualifications cannot be validated thereafter. In the case at hand, regularization is not opposed or for that matter, it is demanded rather the petitioner a Staff Nurse claims seniority over opposite party No.3 and needs correction of the Gradation List and also promotion to the higher post. In absence of any such challenge to the initial appointment of opposite party No.3 any time after her engaged as a Staff Nurse with only an objection submitted for correction of Gradation List claiming seniority, this Court reiterates the view that legality or otherwise of her appointment as a Staff Nurse is not to be entertained.
Mr. Mishra, learned counsel for opposite party No.3 refers to the decision in V. Chandrasekaran (supra) and also Ritesh Tiwari and another Vrs. State of UP & others (2010) 10 SCC 677 and contends that the petitioner is not entitled to any such relief sought for she having not approached this Court with clean hands for having suppressed the material facts. It is not brought to the notice of the Court as to what has been suppressed by the petitioner while demanding seniority and promotion in place of opposite party No.3. No doubt, the law is settled that who seeks equity must do equity and a relief may be denied on account of suppression of facts. Such claim is on the basis of the regular appointments given to the parties in 1994. The petitioner claims seniority over opposite party No.3 for the fact that she joined earlier and hence, eligible for promotion to the post of Nursing Sister. On the basis of the petitioner having joined before opposite party No.3, she claimed seniority and even submitted an objection to the same. It is not that the petitioner suppressed any such fact regarding regularization. It has rather been revealed by opposite party No.2 that opposite party No.3 was considered senior to the petitioner on account of her age and accordingly, the final Gradation List was published and it was not within the knowledge of the petitioner even though the final Gradation List was not challenged immediately thereafter, this Court is inclined to hold that there is no any suppression on material facts at her behest and therefore, is inclined to reject the contention of Mr. Mishra, learned counsel referring to the case law (supra).
Having gone through the facts pleaded on record, it is made to understand that the petitioner has questioned the promotion of opposite party No.3 to the post of Nursing Sister vide Annexure-8. The ground of challenge is on account of length of service having joined earlier, inasmuch as, opposite party No.3, a contractual employee appointed as Staff Nurse on 30th September, 1992, whereas, the petitioner joined by an appointment order dated 16th December, 1991 vide Annexure-2 which was extended till 2nd September, 1994 whereafter both were absorbed in that post on regular basis w.e.f. 3rd September, 1994. Mr. Das, learned counsel for the petitioner submits that there has been flagrant violation of service rules while considering the promotion of opposite party No.3, who joined later to the petitioner and that too on contractual basis. It is claimed that the petitioner’s grievance was not considered even after representation. In fact, the grievance of the petitioner was not heeded to as made to appear from Annexure-10 when the challenge was to the Gradation List and it was deferred due to pendency of OJC No.7469 of 1994 and OJC No.114 of 1995 filed by the Radiographers. According to Mr. Das, learned counsel, the said writ petitions were dismissed being infructuous. The contention is that the petitioner was selected by following due procedure, whereas opposite party No.3 received appointment by contractual means and was placed above her in the Gradation List being senior by age. It is contended by Mr. Das, learned counsel that any such selection of opposite party No.3 and her regularization of service along with the petitioner is outrightly illegal and so her promotion to post of Nursing Sister bypassing the petitioner, who joined the organization earlier to her.
In view of the decision communicated to the petitioner vide Annexure-10, it is submitted by Ms. Sahu, learned AGA that there has been no illegality committed by not considering such promotion and the Staff Nurses joined on regular bass on 3rd December, 1994 and the Gradation List was accordingly prepared taking into account their date of birth and therefore, opposite party No.3 was placed above the petitioner since older by age. Mr. Mohanty, learned counsel for opposite party No.2 justifies the inclusion of opposite party No.3 in the Gradation List with the submission that she was senior to the petitioner due to her age and since the regular appointment has taken place on 3rd September, 1994, irrespective of any such appointment and past service record, she has been considered for promotion to the post of Nursing Sister in 2006. The contention is that at no point of time, the petitioner ever challenged the Gradation List and remained silent for nearly 11 years and therefore, the writ petition is liable to be dismissed. The above contention on behalf of opposite party No.2 is justified by Mr. Mishra, learned counsel for opposite party No.3, according to whom, the Staff Nurses have been appointed on single date and since opposite party No.3 is older by age, hence, she was placed above the petitioner in the Gradation List and thereafter, received promotion to the post of Nursing Sister in 2006 and it was rightly so since seniority is to be counted from the date of regular appointment. In response to the above, it is submitted by Mr. Das, learned counsel that the petitioner questioned the Gradation List and also the promotion of opposite party No.3 but it was not entertained even after she learned that opposite party No.3 had a contractual appointment and joined on 30th September, 1992 duly intimated to the Government in Health and Family Welfare Department, Odisha vide Annexure-9.
Nothing has been brought to the notice of the Court about the bylaw of the organization which governs the service conditions of the parties. The question is whether the Gradation List as per Annexure-6 published on 30th September, 1999 vis-à-vis the petitioner and opposite party No.3 has been correctly prepared? As to whether opposite party No.3 was rightly promoted to the post of Nursing Sister being a contractual employee and joined later to the petitioner? Any such bylaw shall have to be consistent with the service rules. According to the Court, simply on account of age unless specific service rules of the organization explicitly ignore prior length of temporary service upon regularization, cannot determine the seniority. The general rule is that seniority is counted from the date of regular or substantive appointment, but where both the candidates are regularized on the exact same date, one has to consider the service rules and specific criteria while fixing seniority. In absence of any such rule to the contrary, the length of continuous uninterrupted service is considered as the primary factor to determine seniority and in that case, the candidate, who joined earlier under a temporary appointment and served longer, such length of service gives precedence. In fact, under the service rule, ‘older in age’ rule is a tie-breaker of last resort. It is only to apply if all other factors are entirely equal like date of regularization, entry date into the service and position in merit but it cannot be used to dominate a clear difference in the length of service.
In the case at hand, the petitioner received a temporary appointment and worked for some years before being regularized along with opposite party No.3, who received a contractual appointment. The Courts have distinguished temporary and contractual appointments at the time of regularization. A temporary appointment often carries a legal standing if the initial appointment followed a proper rule compliant selection process against a sanctioned post. In case of an appointment on contractual basis, it often bars an employee from claiming seniority or service benefits for a period spent on a fixed contract. In such view of the matter, the candidate, who has a longer length of service, cannot be pushed down in seniority by a contractual employee, who joined later even if that employee is older by age. In other words, such a candidate cannot claim seniority on account of age unless specific service rules governing the establishment explicitly states so. Under the established service jurisprudence and rulings of the Apex Court, length of continuous service determines seniority between two employees regularized on the same day provided the initial appointments were rule compliant. The older candidate only takes precedence if his length of service is also equal.
It is the rule of continuous officiation applies in a given case where the initial temporary appointment of a candidate is held as per the rules and through a proper regular selection process and not a back-door entry and in that case, the temporary service shall have to be counted towards seniority. In fact, the benefits from a longer length of continuous unbroken service are one of the criteria while fixing seniority and because a contractual appointment is typically distinct and often excluded from retrospective seniority, anyone joined later cannot supersede someone having a longer service period and joined as a temporary employee. The ‘seniority by age’ rule is strictly a tie-breaker rule. According to the guidelines of Department of Personnel and Training (DoPT) and standard service rules, age is only factored in when two candidates were regularized on the same date and have the exact same length of service and on merit ranking and in case of the candidate, who has a longer length of service, there is no tie and the age factor does not apply.
In the case at hand, Mr. Mohanty, learned counsel for opposite party No.2 justifies seniority of opposite party No.3 on account of her age. No any provision of the bylaw of the organization is drawn to the attention of the Court to claim that the past service is excluded or irrelevant to fix seniority at the time of regularization and in that case, the general service rule is to apply and as earlier discussed, ‘seniority by age’ rule cannot be applied where the source of appointment is different even though on the same date, there has been regularization of both the candidates. In the considered view of the Court, opposite party No.3 would not be automatically senior based on her age unless specific statutory service rules come to her rescue. It is reiterated that in service jurisprudence, the general rule is that seniority is determined by the length of continuous service but only when two or more employees are regularized on the exact same date, specific tie-breaking principles apply. This Court is inclined to remind the core principles of seniority in order to highlight upon the fundamental factors, namely, length of regular service, type of initial appointment and age as a tie-breaker, which are considered. Seniority is typically calculated from the date of regular substantive appointment. Generally, temporary, ad hoc or contractual periods do not count towards inter se seniority unless the specific regularization policy or service rules explicitly stipulate. The previous service period shall have to be counted if the service rules do allow the pre-regularization period to be counted, the candidate having continuous service shall hold an advantage over others. Usually, a temporary appointment involves the selection process against a sanctioned post giving it higher legal right, whereas, not in the case of contractual engagement, which does not confer service benefits or seniority rights. In case, the rules count the past service, the candidate having length of service more than one who joined by a way of contractual appointment shall be considered senior. Age cannot become a primary criterion for determining seniority between the employees, who entered the organization at different times. So, to say, age is only a tie-breaker if all other factors are perfectly equal. If the rules excluded past service in case of a candidate temporarily appointed, his seniority starts from the date of regularization. But if the rule counts past continuous service, seniority dates back to the earlier temporary joining date and not from the date when the regularization has taken place.
In the case of the organization herein, even with any such bylaw adopted, it shall have to correspond with the service rules of the Government, such as, equivalent pay scales, recruitment guidelines and applicability of the ORV Act for reservation, which are to apply mutatis mutandis. Under the established service jurisprudence, a temporary appointed employee with longer continuous service cannot be declared junior to a later joined contractual employee solely on the basis of the latter being older by age unless and until, any such specific provision of the bylaw governs the seniority excluding the past record. It shall have to be considered that the candidate who joined earlier would be senior to others contractually appointed though older by age. In the case of the petitioner, a selection was held and thereafter, she was allowed to join as a Staff Nurse by a letter of appointment i.e. Annexure-2. It is made to reveal from Annexure-9 that opposite party No.3 joined on contractual basis on 30th September, 1992 when the petitioner received appointment on 16th December, 1991. A provisional Gradation List was prepared in 1999, whereafter, the petitioner represented on 2nd June, 1999 for rectification of the same but thereafter, the final list was released on 30th December, 1999 which was subject to the final outcome of the writ petitions filed by the two Radiographers of the organization, which according to Mr. Das, learned counsel for the petitioner, is irrelevant. In absence of any such rule relied on and referred to in order to justify the seniority of opposite party No.3, who as a contractual employee joined later to the petitioner. In the humble view of the Court, it was not right and justified to prepare the Gradation List, placing opposite party No.3 above the petitioner therein. It has not been pleaded by opposite party No.2 that the past record is not relevant for purpose of fixing the seniority. It is not claimed that the age rule shall apply to the case of the candidates since the past record is not a criterion to be considered at the time of regularization of their services. Having taken judicial notice of the rival contentions and arguments advanced on the correctness of the Gradation List and decision on seniority vis-à-vis opposite party No.3 in juxtaposition to the petitioner’s claim, this Court arrives at a logical conclusion that the plea demanding seniority on the basis of the length of service shall have the precedence and not by the ‘age rule’ since the candidates had separate recruitment processes even though regularized on the same date.
Accordingly, it is ordered.
In the result, the writ petition stands allowed. As a necessary corollary, opposite party No.2 shall comply ensuring seniority of the petitioner and a decision on her promotion notionally to the post of Nursing Sister with effect from 13th December, 2006 in the light of the observations and conclusion hereinabove to the effect that impugned Gradation List at Annexure-6 is susceptible and hence, liable to rejection, with the entire exercise concluded at the earliest preferably by 31st August, 2026.
In the circumstances, there is no order as to the costs.