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Judgment
Heard learned Counsel for the Appellants and learned Counsel for the Respondents.
The Appellants through this appeal have challenged the judgment and order dated 22.10.2009 passed in Writ Petition No. 476 (M/S) of 2001 by the learned Single Judge.
The facts giving rise to this appeal is that the Appellants preferred a writ petition for quashing the seniority list dated 27.5.2000, contained in Annexure No. 5 to the writ petition. It was also prayed that a writ in the nature of mandamus commanding the opposite parties be issued to rectify the claim of the Appellants and fix their seniority in accordance with the date of initial appointment of the Appellants and also place them from serial No. 131 onwards in place of serial No. 372 in the final seniority list.
The Appellants pursuant to the advertisement issued by the Respondents applied for the post of Personal Assistant in the Civil Secretariat in the year 1991. Several candidates, who were working in various departments, applied in response to the said advertisement. The selection proceeded and after following due procedure, as provided under law, the Appellants were declared successful and as a consequence thereof they were issued appointment letters on the post of Personal Assistant vide appointment letter dated 4.9.1992 on substantive posts though temporarily. The Appellants joined in pursuance to the appointment orders. The appointments of the Appellants were extended from time to time and the stipulation contained therein that as and when regularly selected candidates come and join, their services shall come to an end was specified. Their appointment was subsequently converted into ad hoc appointment. The appointment by virtue of Regularization Rules, came to be regularized in the year 1997. The Respondents issued a seniority list on 27.5.2000. The Appellants came to know that they were placed below their juniors at serial No. 372 onwards in place of serial No. 131. Feeling aggrieved with the aforesaid grudge, they filed Writ Petition No. 476 (S/S) of 2001 praying for fixing their seniority from the date of their initial appointment. During the pendency of the writ petition, the representation preferred by the Appellants dated 18.10.2000 was rejected vide order dated 17.5.2001, which was impugned in the writ petition as Annexure No. 14 by making amendment. After pleadings were exchanged, the writ petition was finally heard and decided vide judgment and order dated 22.10.2009.
Submission of the learned Counsel for the Appellants is that the Appellants were appointed on the basis of Government Order dated 5.3.1991 issued by the State Government and after following due procedure for recruitment i.e. written test as well as other formalities and thereafter they were selected on the post of Personal Assistant Since they were appointed by transfer, therefore, their services are to be counted in the light of the fact that they had been working in the Government Departments at earlier point of time and the State Government itself invited applications from various persons and they came to be selected. It has also been submitted that appointment of the Appellants was temporary in nature after their selection by transfer and they continued in the department continuously up to the date of regularization, hence they are entitled for seniority from the date of their initial appointment. The nature of temporary appointment could not have been changed by the Respondents and the right vested in them could not have been altered at the behest of the Respondents by changing nature of appointment to ad hoc for regularizing the appointment of the Appellants in pursuance to the Regularization Rules, 1987. Much emphasis has been laid on the mode of recruitment and it has been submitted that such appointments should be treated to be a regular appointment for all purposes.
Learned Standing Counsel, on the other hand, has submitted that the appointments were made on account of exigency of service as U.P. Public Service Commission (in short the Commission'') was taking time in finalizing the selection and work of the Government was suffering, so in order to cope with the situation the aforesaid decision was taken and applications were invited making it clear that appointments would be for a period of one year and if regularly selected candidates from the Commission come and join, their services will come to an end at earlier point of time. The batch-mates of the Appellants also appeared in the regular selection conducted by the Commission and six persons out of the batch of the Appellants were selected. The Appellants did not choose to appear in the regular test through Commission and so they are not entitled for seniority as claimed by them. The appointment of the Appellants was extended by means of Government Orders dated 10.9.1993 and 24.8.1996 from time to time but there was clear stipulation in the extension order that their services will come to an end as and when regularly selected candidates from the Commission are available. The State Government took a sympathetic view and converted the services of the Appellants into ad hoc nature by means of order dated 29.9.1996. Thereafter the claim of the Appellants was considered in accordance with the Regularization Rules dated 5.3.1987. The Regularization Rule itself stipulates that if a person is regularized under the aforesaid Rules, he will be entitled for seniority from the date of his regularization. The Appellants were made to understand at each and every point of time when their services were extended that they have no right to the post and they have to go back to their parent department as and when regularly selected candidates are available.
The mode of recruitment is provided under Rule 5 of the U.P. Secretariat Ministerial Staff Rules, 1942 (for short 1942 Rules) and the Appellants were appointed in accordance with the said Rules. U.P. Secretariat Personal Assistant Rules were published in the year 2001. No other mode has been prescribed except Rule 5 which provides the mode of selection through U.P. Public Service Commission and therefore, any selection made otherwise will be dehors to the rules and will not confer any right upon the Appellants. The Appellants who are claiming seniority on the basis of their appointments by way of transfer in the present appeal have not been able to establish that their appointment was in accordance with the ''1942 Rules''. Though the Appellants were appointed in pursuance to the advertisement issued by the State Government but they were made to understand very clearly by issuing appointment orders in which it was clearly stipulated that their appointment will continue for one year and if regularly selected candidates from the Commission come and join at earlier point of time, their appointments will come to an end at that juncture. The appointment of the Appellants was extended by means of Government Order dated 10.9.1993 and 24.8.1996 but in all the extension orders it was very clearly indicated that appointment of Appellants would come to an end and they shall be repatriated to their parent departments as soon as the regularly selected candidates are available from the Commission. It appears that secretariat administration took a decision by means of order dated 28.9.1996 and converted the services of the Appellants to ad hoc nature. After the services of the Appellants converted into ad hoc nature they were given the benefit of Regularization Rules dated 5.3.1987 and their services were regularized. The Regularization Rules itself stipulate that the person would be entitled for seniority from the date of their regularization. The Appellants have not challenged their extension of appointment or stipulation contained therein. They also did not challenge the conversion of their appointment into ad hoc appointment. They have also derived the benefit of ad hoc nature of services as determined by the secretariat administration. The State Government was very clear in its stand that the appointment of the Appellants was for a limited period and so the Appellants were never misled at any point of time in this regard. Strong reliance has been placed by the Appellants before learned Single Judge on the case of Rudra Kumar Sain and Others Vs. Union of India and Others, and the learned Single Judge has rightly been observed that it was not applicable in the case of the Appellants. The permission for regularization of the Appellants'' services was refused vide letters dated 26.8.1996 and 19.12.1996 by the U.P. Public Service Commission which is the appropriate authority.
In these circumstances, it cannot be said that the Appellants were appointed by the competent authority or with its approval. Learned Counsel for the Respondents has placed reliance on the judgment rendered in the case of M.P. Palanisamy and Others Vs. A. Krishnan and Others, From the perusal of the aforesaid judgment, it is clear that a candidate selected from the U.P. Public Service Commission will rank senior to the person appointed on ad hoc basis and subsequently regularized. The Apex Court ruled in the said judgment in paras 44 to 47 as under:
Mr. C. Selvaraju, learned Senior Counsel for the contesting Respondent invited our attention to the decision in State of Tamil Nadu and another etc. Vs. E. Paripoornam and others, which was the case pertaining to the seniority of the teachers, who were appointed temporarily. Those were also the teachers appointed under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules. Subsequently, they were regularized for the limited purpose of increments. The order of regularization itself denied their previous service for the purpose of determining the seniority. This Court came to the conclusion that while determining the seniority, the Court could not count that service for the purpose of seniority.
In para 14 , this Court observed (Paripoornam case:
"14 . Apart from that, Rule 10(a)(i)(I) provides for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately. Such appointments are made otherwise than in accordance with the procedure prescribed under then Rules. In the instant case the Respondents were appointed temporarily and otherwise than in accordance with the Rules. They were later selected along with others for direct recruitment by the Public Service Commission. They were not entitled to count their temporary service for seniority. In A.P.M. Mayankutty Vs. The Secretary and Another, this Court observed that the services rendered by the applicants under Rule 10(a)(i)(1) cannot be considered for the purpose of seniority as such appointments is a matter of stop-gap, emergency or fortuitous arrangement.
Earlier, in para 13, referring to Rule 35(a), according to which the seniority is fixed, the court proceeded to observe: ( Paripoornam case ),
The services rendered in the temporary post is available either for earning increments or for commencement of probation. That would be clear from Rule 23 (a). Consistent with the Rule 23(a), the Government in the order of regularization has directed that the incumbents are eligible for increments from the date of their regularization as they are fully qualified to hold the post on that date. The increments already sanctioned to them during their services as temporary junior Professors prior to regular appointment has been ratified by the said order. The High Court was plainly in error in ingoing the statutory rules and the terms and conditions of the order of regularization of services.
The emphasized portion, undoubtedly, presents out a clear position that the language of the GO Ms, offering regularization, is of utmost importance. Therefore, it is clear that the second condition will have to stay as it is.
47-"In a recent decision in K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, this Court again reiterated the principles of fixation of seniority in case of the persons, who were temporarily appointed under Rule 10(a)(i)(1). This Court relied on V. Sreenivasa Reddy and others Vs. Govt. of Andhara Pradesh and others, as also, State of of T.N. v. E. Paripoornam. Both these cases dealt with Rule 10(a)(i) (1). Distinguishably, relying upon the case law relied on by the Respondents i. e. Shri L. Chandrakishore Singh Vs. State of Manipur and Others, this Court came to the conclusion that the High Court had erred in holding that the temporary appointees under Rule 10 (a)(i)(1) were entitled to the seniority right from the date of their first appointment and not from their regularization. Though the controversy involved is slightly different, the general principles would undoubtedly apply.
We have given our anxious consideration to the argument made on behalf of the Appellants and we find that the claim of the Appellants cannot be appreciated and neither it is tenable under law .
For the reasons discussed herein above, the appeal is devoid of merit. It is accordingly dismissed.