Gauhati High Court
Sonit Kumar Bora vs Gautam Kumar Das And 4 Ors on 18 May, 2022
Page No.# 1/41
GAHC010156612021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1570/2021
SONIT KUMAR BORA
S/O LATE GOPIRAM BORAH, R/O RUKMINIGAON, NEAR SBI COLONY,
HOUSE NO. 4 GUWAHATI-781022, DIST- KMARUP(M), ASSAM
VERSUS
GAUTAM KUMAR DAS AND 4 ORS.
S/O LT. RABINDRA NATH DAS R/O HOUSE NO. 6, SEUJ PATH, WIRELESS,
HATIGAON, GUWAHATI- 781006, GUWAHATI, ASSAM
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF TRANSPORT
DISPUR
GUWAHATI-781006
3:THE ADDITIONAL SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF TRANSPORT
DISPUR
GUWAHATI- 781006.
4:THE DEPUTY SECRETARY TO THE GOVT.OF ASSAM
DEPARTMENT OF TRANSPORT
DISPUR
GUWAHATI- 781006.
5:ASSAM PUBLIC SERVICE COMMISSION
REP. BY ITS CHAIRMAN
JAWAHAR NAGAR
Page No.# 2/41
KHANAPARA
GUWAHATI - 781022
ASSA
Advocate for the Petitioner : MR. P MAHANTA
Advocate for the Respondent : MR. A SARMA
Linked Case : WP(C)/3616/2019
GAUTAM KUMAR DAS
S/O- LT RABINDRANATH DAS
R/O- H.NO. 6
SEUJEE PATH
WIRELESS
HATIGAON
GHY-6
GHY
ASSAM
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GHY-6
2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
DEPTT. OF TRANSPORT
DISPUR
GHY-6
3:THE ADDL. SECY. TO THE GOVT. OF ASSAM
DEPTT. OF TRANSPORT
DISPUR
GHY-6
4:THE DY. SECRETARY TO THE GOVT. OF ASSAM
DEPTT. OF TRANSPORT
DISPUR
GHY-6
5:THE ASSAM PUBLIC SERVICE COMMISSION
THROUGH ITS CHAIRMAN
Page No.# 3/41
JAWAHAR NAGAR
KHANAPARA
GHY-22
ASSAM
6:SONIT KUMAR BORA
ENFORCEMENT INSPECTOR
KAMRUP ENFORCEMENT
BETKUCHI
GHY-34
7:SH. BUBUL GOGOI
ENFORCEMENT INSPECTOR
KAMRUP ENFORCEMENT
BETKUCHI
GHY-34
8:SH. SITARAM DOLEY
ENFORCEMENT INSPECTOR
KAMRUP ENFORCEMENT
BETKUCHI
GHY-34
------------
Advocate for : MR. A SARMA
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 7 ORS.
Linked Case : WP(C)/3291/2018
GAUTAM KUMAR DAS
S/OLT. RABINDRANATH DAS
SEUJ PATH
WIRELESS
HATIGAON
GUWAHATI- 781006
GUWAHATI
ASSAM
VERSUS
THE STATE OF ASSAM AND 19 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF TRANSPORT
DISPUR
GUWAHATI-781006.
2:THE ADDITIONAL SECRETARY TO THE GOVT. OF ASSAM
Page No.# 4/41
DEPARTMENT OF TRANSPORT
DISPUR
GUWAHATI- 781006.
3:THE DEPUTY SECRETARY TO THE GOVT.OF ASSAM
DEPARTMENT OF TRANSPORT
DISPUR
GUWAHATI- 781006.
4:ASSAM PUBLIC SERVICE COMMISSION
REP. BY ITS CHAIRMAN
JAWAHAR NAGAR
KHANAPARA
GUWAHATI - 781022
ASSAM
5:SH. SONIT KUMAR BORA
ENFORCEMENT INSPECTOR
KAMRUP ENFORCEMENT
BETKUCHIT
GUWAHATI - 781034.
6:SH. BAPAN KALITA
ENFORCEMENT INSPECTOR
IN-CHARGE RTI
KAMRUP- 781034
7:SH. SIMANTA BORA
ENFORCEMENT INSPECTOR
DISTRICT TRANSPORT OFFICE
MORIGAON- 782105.
8:SH. ANIMESH DAS
ENFORCEMENT INSPECTOR
DISTRICT TRANSPORT OFFICE
KAMRUP ENFORCEMENT
BETKUCHI
GUWAHATI - 781034.
9:SH. MONOJ KUMAR CHOUDHURY
ENFORCEMENT INSPECTOR
IN CHARGE
DISTRICT TRANSPORT OFFICE
GOLAGHAT- 785621.
10:SH.JASBIR SINGH
Page No.# 5/41
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICE
GOLAGHAT- 785621.
11:SH. DIPAK PATOWARY
ENFORCEMENT INSPECTOR
OFFICE OF THE KAMRUP(R)
AMINGAON- 781031.
12:SH. MUZIBUDDIN AHMED
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICE
DIBRUGARH- 786001.
13:SH. BUBUL GOGOI
ENFORCEMENT INSPECTOR
OFFICE OF THE KAMRUP ENFORCEMENT
BETKUCHI
GUWAHATI - 781034.
14:SH. BHUPEN CH. GOGOI
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICE
NAGAON- 782001.
15:SH. SITARAM DOLEY
ENFORCEMENT INSPECTOR
OFFICE OF THE KAMRUP ENFORCEMENT
BETKUCHI
GUWAHATI - 781034.
16:SH. GAUTAM CH. BARMAN
OFFICE OF THE DISTRICT TRANSPORT OFFICE
CACHAR
SILCHAR- 788001
17:SH. APURBA KUMAR DAS
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICE
DHUBRI - 783301.
18:SH. RAMESH SHYAM
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICE
DIBRUGARH- 786001.
19:SH. RAJIB KR. PEGU
ENFORCEMENT INSPECTOR
Page No.# 6/41
OFFICE OF THE KAMRUP ENFORCEMENT
BETKUCHI
GUWAHATI - 781034.
20:SH. HIMANGSHU KUMAR DAS
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICE
LAKHIMPUR - 787001.
------------
Advocate for : MR. A SARMA
Advocate for : SC
TRANSPORT appearing for THE STATE OF ASSAM AND 19 ORS.
Linked Case : WP(C)/3819/2018
HIMANGSHU KUMAR DAS
SON OF LATE TIKENDRA NATH DAS
PRESENTLY WORKING AS AN ENFORCEMENT INSPECTOR IN THE
DISTRICT TRANSPORT OFFICE
LAKIMPUR
DILIP HUZURI PATH
SARUMATARIA
GUWAHATI- 781006 IN THE DISTRICT OF KAMRUP(M)
ASSAM.
VERSUS
THE STATE OF ASSAM AND 13 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
DEPARTMENT OF TRANSPORT
DISPUR- 781006
2:THE ADDL. SECRETARY TO THE GOVT. OF ASSAM
DEPTT. OF TRANSPORT
DISPUR
GUWAHATI-781006.
3:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
DEPTT. OF TRANSPORT
DISPUR- 781006.
4:ASSAM PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS CHAIRMAN
Page No.# 7/41
KHANAPARA
GUWAHATI- 781022
ASSAM.
5:MANOJ KUMAR CHOUDHURY
ENFORCEMENT INSPECTOR IN-CHARGE
DISTRICT TRANSPORT OFFICE
GOLAGHAT- 785621
6:JASBIR SINGH
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICER
GOLAGHAT- 785621.
7:DIPAK PATOWARY
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICER
KAMRUP(R)
AMINGAON- 781031
8:MUZIBUDDIN AHMED
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICE
DIBRUGARH- 786001.
9:BHUPEN CHANDRA GOGOI
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICE
NAGAON- 782001.
10:APURBA KR. DAS
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICE
DHUBRI- 783301.
11:RAMESH SHYAM
ENFORCEMENT INSPECTOR
OFFICE OF THE DISTRICT TRANSPORT OFFICE
DIBRUGARH- 786001.
12:RAJIB KUMAR PEGU
ENFORCEMENT INSPECTOR
OFFICE OF THE KAMRUP ENFORCEMENT
BETKUCHI
GUWAHATI- 781034.
13:SONIT KUMAR BORA
ENFORCEMENT INSPECTOR
KAMRUP ENFORCEMENT
BETKUCHI
GUWAHATI- 781034.
14:BAPAN KALITA
ENFORCEMENT INSPECTOR
IN CHARGE RTI
KAMRUP ENFORCEMENT
BETKUCHI
GUWAHATI- 781034.
Page No.# 8/41
------------
Advocate for : MR. P MAHANTA
Advocate for : SC
TRANSPORT appearing for THE STATE OF ASSAM AND 13 ORS.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
JUDGMENT AND ORDER
(C.A.V.)
18.05.2022
The seniority dispute raised by the petitioners vis-à-vis the private
respondents in the cadre of Enforcement Inspector as per final gradation list
dated 14.05.2018, is the subject matter of these three writ petitions.
Brief facts in W.P.(C) 3291/2018:
2. In W.P.(C) 3291/2018, the case of the petitioner, namely
Gautam Kumar Das, in brief is that he is presently serving as Enforcement
Inspector in the State Transport Department. As against 9 (nine) vacant posts of
Enforcement Inspectors to be filled up, by a communication dated 26.05.1995,
addressed to the respondent no.4, the Assam Public Service Commission
(hereinafter referred to as 'APSC' for short) had recommended the names of 7
(seven) persons for appointment and also recommended the names of 7
(seven) persons in the waiting list, wherein the name of the petitioner appeared
at serial no. 1. The aggrieved petitioner had approached this Court by filing a
writ petition, and this Court by an order dated 30.01.1996, allowed Civil Rule
No. 4316/1995, by holding that the case of the petitioner was covered by the
Page No.# 9/41
decision of this Court in Civil Rule nos. 4131/1995 and 2036/1995, and directed
the respondent authorities to appoint him as Enforcement Inspector and if
necessary, by throwing out the ad hoc appointees and the appointees under
Regulation 3(f) of the APSC (Limitation of Function) Regulation, 1951
(hereinafter referred to as "1951 Regulations") within 15 (fifteen) days from the
date of receipt of the order. The State challenged the said order dated
30.01.1996 in an intra-Court appeal and the Division Bench of this Court, by
judgment and order dated 27.09.1996, dismissed W.A. No. 76/1996. Thereafter,
the petitioner was appointed temporarily as Enforcement Inspector vide
notification dated 13.02.1997. Thereafter, vide communication dated 22.01.1997
to the respondent no.3, the APSC had recommended candidates for filling up 47
vacant posts of Enforcement Inspector as advertised in the year 1994-95. As per
provisional gradation list dated 24.08.2011, the name of the petitioner appeared
at serial number 23. However, in the second provisional gradation list dated
06.08.2015, the name of the petitioner appeared at serial number 18.
Resultantly, his seniority was brought down and placed after 4 (four) persons
appointed under Regulation 3(f) of the 1951 Regulations. The petitioner had
submitted his representation dated 20.08.2015 against the said provisional
gradation list dated 06.08.2015. However, in the final gradation list dated
14.05.2018, the name of the petitioner was placed at serial number 28. The
case of the petitioner is that his name should have been placed at serial number
12, just below the name of Gautam Deka, whose name appears at serial no. 11
and whose name was recommended on 26.05.1995. Accordingly, the petitioner
has prayed for setting aside and quashing the action of the Government to place
the name of the petitioner at serial number 28 instead of serial number 12 in
the final gradation list dated 14.05.2018 of Enforcement Inspectors, and to
Page No.# 10/41
direct the respondent authorities to place the name of the petitioner at serial
number 12 in the said final gradation list.
Brief facts in W.P.(C) 3616/2019:
3. This is the second writ petition filed by the petitioner in W.P.(C)
3291/2018, namely, Gautam Kumar Das. In this writ petition, it has been
projected that in connection with interim order dated 11.06.2018, passed in W.P.
(C) 3291/2018, an application under Article 226(3) of the Constitution of India
was filed by the respondent nos. 6 and 8, which was respectively numbered as
I.A.(C) 923/2019 and I.A.(C) 1763/2019. It is projected that from its contents,
the petitioner came across notification dated 04.03.2004, by which the service
of the respondent nos. 6, 7 and 8 along with one Uttam Kumar Doley who were
earlier appointed as Enforcement Inspectors under Regulation 3(f) of 1951
Regulations vide notification dated 04.12.1991 was regularised with effect from
22.01.1997, the date of recommendation made by the APSC. Accordingly, the
petitioner has assailed the said notification dated 04.03.2004 issued by the
Principal Secretary to the Government of Assam, Transport Department.
Brief facts in W.P.(C) 3819/2018:
4. Himangshu Kumar Das is the petitioner in W.P.(C) 3819/2018.
His name was one amongst 47 (forty seven) candidates recommended by the
APSC for appointment to the vacant post of Enforcement Inspector vide
communication dated 22.01.1997, and his name appeared at serial number 20.
Thereafter, vide notification dated 08.09.1997, the petitioner and 9 (nine) others
were appointed as Enforcement Inspector and the name of the petitioner was at
serial number 10. The case of the petitioner is that his name was incorrectly
Page No.# 11/41
enlisted at serial number 34 in the provisional gradation list dated 24.08.2011,
and it is claimed that the names of respondent nos. 5, 6, 7, 10, 13 and 14, who
were appointees under Regulation 3(f) of the 1951 Regulations were incorrectly
placed before his name, whereas the names of respondent nos. 8, 9, 11 and 12
were rightly placed below him. Thereafter another provisional gradation list
dated 06.08.2015 as on 01.04.2015 of Enforcement Inspectors was published,
where the name of the petitioner appeared at serial number 26 and it is
projected that the names of appointees under Regulation 3(f) of the 1951
Regulations recommended on 22.01.1997, except respondent nos. 8, 9, 11 and
12 were placed above him. It is projected that the petitioner along with another
had submitted a representation dated 10.09.2015 against the provisional
gradation list dated 06.08.2015, however, without addressing the same, the
respondent authorities had issued a final gradation list dated 14.05.2018 of
Enforcement Inspectors as on 11.05.2018, wherein the names of the
respondent nos. 5 to 14 was placed before the name of the petitioner, although
the services of the private respondents were regularised subsequently.
Accordingly, the petitioner has prayed, amongst others, to direct the respondent
authorities to place the name of the petitioner at serial number 17 instead of
present placement at serial number 27.
5. Heard the learned senior counsel/ counsel, learned Advocate
General and standing counsel for the Transport Department, appearing for the
respective parties.
Submissions by learned counsel for petitioners in W.P.(C) 3291/2018 and
3616/2019:
Page No.# 12/41
6. The learned counsel for the petitioners in W.P.(C) 3291/2018
and 3616/2019 has referred to the provisions of Rule 20 of the Assam Transport
Service Rules, 2003 and has submitted that the seniority of the members in a
cadre appointed by direct recruitment or by promotion shall be determined
according to the order of merit in the respective select list if he joins within 15
days from the date of receipt of appointment order or within the extended time
as mentioned in Rule 17 and that if he/she fails to join within the time as
mentioned in Rule 17, but joins later, seniority would be determined as per the
date of joining. In the said context, it was submitted that as the petitioner was
not appointed and instead, his name was kept at serial no. 1 of the waiting list,
the petitioner had approached this Court and that the petitioner was given
appointment only after orders were passed by this Court in connection with Civil
Rule no. 4316/1995 and W.A. No. 76/1996. Therefore, as the appointment of
the petitioner was referable to the APSC recommendation dated 26.05.1995 as
8th (eighth) candidate, there is no way that the seniority position of the
petitioner would be lost. Hence, it was submitted that in the gradation list, the
name of the petitioner ought to be placed immediately below the 7 th (seventh)
appointee from the recommendation list dated 26.05.1995.
Submissions by the learned senior counsel for the petitioner in W.P.(C)
3819/2018:
7. The learned senior counsel for the petitioner has referred to the
Gradation List of Enforcement Inspectors as on 11.05.2018, and it has been
submitted that the name of Gautam Kumar Das, the petitioner in W.P.(C)
3291/2018 and 3616/2019 appears at serial number 28, whereas the name of
Himangshu Kumar Das, petitioner in W.P.(C) 3819/2018 appeared at serial no.
Page No.# 13/41
27 and the names of respondent nos. 5 to 14 appeared at serial nos. 16, 17, 18,
19, 21, 24, 25, 26, 12 and 13 respectively. By referring to the position of the
petitioner and private respondents in W.P.(C) 3819/2018, it has been submitted
that their respective position was as follows:-
Sl. No. Name Mode of Position in Date of Date of Regularisation
recruitment APSC joining as recommendation/ vide Govt.
select list E.I. regularisation by notification
APSC
12 Sonit 3(f) 1 of 12.09.97 12.09.97 08.09.97
Kumar 22.01.97
Bora
(R/13)
13 Bapan 3(f) 3 of 28.12.94 22.01.97 08.09.97
Kalita 22.01.97
(R/14)
16 Manoj 3(f) 7 of 12.02.93 22.01.97 20.06.06
Kumar 22.01.97
Choudhury
(R/5)
17 Jasbir 3(f) 8 of 20.12.94 22.01.97 08.09.97
Singh 22.01.97
(R/6)
18 Dipak 3(f) 9 of 26.12.94 22.01.97 08.09.97
Patowary 22.01.97
(R/7)
19 Muzibuddi 3(f) 10 of 09.06.98 18.08.03 30.08.2003
n Ahmed 22.01.97
(R/8)
21 Bhupen 3(f) 13 of 11.02.93 17.11.2001 17.11.2001
Chandra 22.01.97
Gogoi
(R/9)
Page No.# 14/41
24 Apurba 3(f) 16 of 21.04.93 22.01.97 08.09.97
Kumar Das 22.01.97
(R/10)
25 Ramesh Direct 18 of 17.01.200 17.01.2002 11.01.2002
Shyam 22.01.97 2
(R/11)
26 Rajib Direct 19 of 17.01.200 17.01.2002 11.01.2002
Kumar 22.01.97 2
Pegu
(R/12)
27 Himangsh Direct 20 of 12.09.97 12.09.97 08.09.97
u Kumar 22.01.97
Das
Petitioner
in WPC
3819/18
28 Gautam Direct 8 of 13.02.97 13.02.97 13.02.97
Kumar Das 26.05.95
Petitioner
in WPC
3291/18 &
3616/19
8. Accordingly, it has been submitted that the service of some of
the private respondents have been regularised from a date anterior to their
having born in the cadre. It has further been submitted that the period of
service rendered on ad hoc basis under Regulation 3(f) of the 1951 Regulations
cannot be considered for the purpose of conferring seniority. Accordingly, it has
been submitted that there was no infirmity in placing the petitioner in W.P.(C)
3291/2018 and 3616/2019 below the petitioner in W.P.(C) 3819/2018. It has
further been submitted that as illegality was committed in placing the names of
respondent nos. 5 to 14 above the petitioners, they are required to be en-bloc
placed after the petitioners. Moreover, by referring to the affidavit-in-opposition
Page No.# 15/41
filed by the respondent no. 5, namely, Manoj Kumar Choudhury, it has been
submitted that it was the understanding of the said respondent in para-19 that
his service was regularised on 22.01.1997. It has been submitted that the
understanding of the respondent no. 13, i.e. Sonit Kumar Bora in para 3 of his
affidavit-in-opposition was also similar to that of respondent no. 5.
9. Contesting the stand of the respondent no. 5, namely, Manoj
Kumar Choudhury, it has been submitted that owing to his involvement and
detention in a criminal case, the said respondent was placed under suspension
vide notification dated 31.03.1997. Thereafter, his service was terminated vide
notification dated 08.09.1997. Hence, a writ petition was filed, which was
registered as Civil Rule 284/1998. In the said writ petition, by an order dated
21.01.1998, as an interim relief, this Court had provided that the validity of the
select list dated 22.01.1997 shall stand extended and one post of Enforcement
Inspector shall not be filled up until further orders from the Court. During the
pendency of the writ petition, the order of termination was revoked vide
Government notification dated 09.02.2001 and by another notification dated
22.03.2001, the order of suspension was revoked and the petitioner was
reinstated and his place of posting was given. Accordingly, this Court had closed
the said writ petition by observing that on disposal of the criminal case, the
State shall take a decision in the matter and till then the interim order passed by
the Court shall remain valid. Accordingly, it has been submitted that the
appointment under Regulation 3(f) of the 1951 Regulations, which is for a
period of 4 (four) months, having not been extended from time to time, the said
respondent no. 5 had not rendered any service from 08.09.1997 to 09.02.2001.
In the said context, it has been submitted that in the case of the petitioner in
Page No.# 16/41
W.P.(C) nos. 3291/2018 and 3616/2019, his status was to some extent
protected by the judgment rendered in the writ appeal, but no such protection
was extended in the case of respondent no.5, namely, Manoj Kumar Choudhury.
It has also been submitted that as the said respondent claims that his service
was regularised, he cannot turn around and claim status of that of a direct
recruit.
10. It has been submitted that regularisation was not a method of
recruitment as per the 2003 Rules and also in view of the ratio laid down in the
cases of R.S. Garg v. State of U.P. & Ors., (2006) 6 SCC 430 and A. Umarani v.
Registrar, Cooperative Societies & Ors., (2004) 7 SCC 112 . Reliance was placed
on the cases of State of Uttar Pradesh v. Rafiquddin & Ors., 1987 (Supp) SCC
401 and Hemanta Bhattacharjee & Ors. v. State of Assam & Ors., 2008 (4) GLT
7. It was further submitted that although the APSC had recommended the
names of respondent nos. 11 and 12 for appointment, but they were appointed
vide notification dated 11.01.2002 and the said respondents had joined on
17.01.2002 and therefore, the said respondent nos.11 and 12 were appointed
beyond the validity of the select list, which was for 1 (one) year. Thus, it was
submitted that in the seniority/ gradation list, the names of the said respondent
nos. 11 and 12 would have to be placed below that of the petitioners. It has
been submitted that the period of service rendered under Regulation 3(f) of the
1951 Regulations by the respondent nos. 5, 8 and 9 in W.P.(C) 3819/2018
cannot be counted for the purpose of seniority, which has to be counted from
the dates of their respective notifications and similarly, the seniority of the
respondent nos. 11 and 12 also cannot be allowed to be counted from prior to
the date of their respective regular appointments. In this regard, reliance has
Page No.# 17/41
been placed on the following cases, viz., (i) Direct Recruit Class II Engineering
Officers' Association v. State of Maharashtra & Ors., (1990) 2 SCC 715 , (ii) State
of W.B. & Ors. v. Aghore Nath Dey & Ors., (1993) 3 SCC 371 , (iii) Keshav
Chandra Joshi & Ors. v. Union of India & Ors., 1992 Supp (1) SCC 272 , (iv)
Nabin Chandra Bordoloi v. State of Assam & Ors., (2003) 2 GLR 561 , (v)
Anamika Tamuli v. State of Assam, (2018) 1 GLR 679 .
Submissions by the learned senior counsel for respondent no. 5 in W.P.(C)
3819/2018 [i.e. respondent no. 9 in W.P.(C) 3291/2018] as well as respondent
no. 6 in W.P.(C) 3616/2019:
11. In respect of respondent no. 5 in W.P.(C) 3819/2018 , it has
been submitted that the currently applicable Assam Transport Service Rules,
2003 was notified on 07.10.2003 and published in the Assam Gazette
Extraordinary dated 10.10.2003 and that by virtue of Rule 28, rules in force
immediately before the commencement of the said rules was repealed. In the
said context, it was submitted that prior to its repeal, the previously applicable
service rules was called Assam Transport Service Rules, 1983, which was
published in the Assam Gazette Extraordinary dated 09.06.1984. It was
submitted that under Sub-Rule (1) of Rule 24 of the 1983 Rules, the seniority of
a member in cadre, appointed by direct recruitment or by promotion would be
determined according to the order of merit in the respective select list, if he
joins the appointment within 15 days from the date of receipt of the order or
within the extended period as mentioned in Rule 21. Thus, it has been
submitted that the stand taken by the petitioners is fallacious because from the
averments made in para 4, 6 and 10 of W.P.(C) 3819/2018, it is apparent that
Page No.# 18/41
by the same notification, the APSC had not only selected direct recruits, but in
the same process, they had also recommended names for appointment under
Regulation 3(f) of the 1951 Regulations. Thus, as the names of the private
respondents recommended under Regulation 3(f) of the 1951 Regulations
appear before the names of the petitioners, the said respondents cannot be
placed below the petitioners.
12. By referring to the select list, it has been submitted that the
name of respondent no. 5 and the petitioner in W.P.(C) 3819/2018 appears at
serial nos. 7 and 20 respectively and correspondingly, their names appear at
serial nos. 16 and 27 respectively in the gradation list as on 11.05.2018. It was
submitted that the charges framed on 09.02.2001 against the respondent no. 5
was dropped vide notification dated 20.06.2006 by the Disciplinary Authority,
i.e. the Additional Chief Secretary to the Government of Assam, Transport
Department. This was followed by notification dated 20.06.2006, wherein it was
mentioned that the respondent no. 5, who was appointed as Enforcement
Inspector under Regulation 3(f) of 1951 Regulations vide Government
notification dated 04.02.1993, and presently working as Enforcement Inspector
in the Office of the DTO, Nalbari was appointed as Enforcement Inspector w.e.f.
22.01.1997, i.e. from the date of recommendation of APSC. Hence, it was
submitted there was no break in service and therefore, the seniority position of
the respondent no. 5 would not be lost. It was submitted that if the seniority of
the respondent no. 5 is calculated from the date of his initial appointment, i.e.
04.02.1993, his position in the gradation list would be at serial number 14 and if
his seniority is reckoned from 22.01.1997, his position would be at serial number
17 of the draft gradation list dated 06.08.2015. Hence, it was submitted that the
Page No.# 19/41
prayer (a) of the writ petition was that the name of the petitioner should be at
serial number 17, need not be answered qua respondent no. 5.
13. In respect of respondent no. 6 in W.P.(C) 3616/2019, namely,
Sonit Kumar Bora, it was submitted by the learned senior counsel that it was
only pursuant to the orders of this Court in Civil Rule No. 4316/1995 and W.A.
No. 76/1996, the Government issued a notification dated 13.02.1997 to appoint
the petitioner, namely, Gautam Kumar Das, whereas, by virtue of notification
dated 22.01.1997, the name of the respondent no. 6 at serial number 1 was
recommended, and appointed vide notification dated 08.09.1997. It was also
submitted that by a notification dated 04.03.2004, the respondent no. 6 was
appointed as Enforcement Inspector, but the same was given effect from the
date of APSC recommendation i.e. 22.01.1997. Accordingly, it was submitted
that although the name of respondent no. 6 was placed below that of the
petitioner in W.P.(C) 3616/2019 at serial number 24 and 19 in the provisional
gradation list dated 24.08.2011 and 06.08.2015 respectively, but as the
respondent no. 6 was an appointee vide notification dated 04.12.1991, and
recommended by APSC to be regularised vide communication dated 22.01.1997,
the name of the respondent no. 6 was rightly placed prior to the petitioner in
the final gradation list. It was also submitted that while the respondent no. 6
had joined as Enforcement Inspector on 22.01.1997, the petitioner had joined
the said post on 13.02.1997 and therefore, the respondent no. 6 was correctly
placed above the petitioner in the final gradation list. It was also submitted that
seven posts were advertised and the name of the petitioner did not figure in the
first seven appointees and rather, his name was at serial number 1 of the wait-
list, hence, the petitioner cannot be said to be from 1995 selection, because his
Page No.# 20/41
appointment was pursuant to Court order and his 8 th position was not declared
by the APSC and therefore, the appointment of the petitioner was by virtue of a
special procedure with the intervention of the Court and therefore, the seniority
of the respondent no.6 must be protected.
14. It was also submitted that pursuant to the orders passed by this
Court, the competent respondent authority had issued a notification dated
13.02.1997 to appoint the petitioner in WP(C) 3616/2019 as Enforcement
Inspector from the date of taking over charge and that the petitioner had
accepted the said position without any challenge to the said notification dated
13.02.1997. Thus, it has been submitted that the petitioner has now challenged
the order dated 04.03.2004, after a delay of about 15 years with insufficient
explanation in para-19 of the writ petition about laches and in the meanwhile
valuable right has accrued upon the respondent no. 6. In this regard, reliance
has been placed on the case of Tilokchand and Motichand & Ors. v. H.B. Munshi
& Anr, (1969) 1 SCC 110.
15. It was also submitted that the initial appointment of the
respondent no. 6 was not in terms of the 1983 Service Rules in force, but
nonetheless, it has continued for a considerable long period of time and
therefore, the case of the petitioner was squarely covered by the situation
covered by para 48(B) of the case of Direct Recruit Class II Engineering Officers'
Association (supra) and as such the officiating service would be counted for all
consequential benefit. In other words, it has been submitted that the erstwhile
1983 Rules as well as the current 2003 Rules were made under Article 309 of
the Constitution of India and as the appointment of the respondent no. 6 was
Page No.# 21/41
not in accordance with the Rules, by following the ratio laid down in the herein
before referred case of Direct Recruit Class II Engineering Officers' Association
(supra), the officiating period of service rendered by the respondent no. 6 has
to be counted for all purpose including seniority. In this regard, reliance has
been placed on para 25 of the case of Aghore Nath Dey (supra).
16. Mr. K.N. Choudhury, learned senior counsel has cited the
following cases in support of his submissions, viz., (i) Santosh Kumar v. State of
A.P. & Ors., (2003) 5 SCC 511, (ii) Ajit Kumar Rath v. State of Orissa & Ors.,
(1999) 9 SCC 596, (iii) Aghore Nath Dey (supra), (iv) M.A. Haque v. Union of
India, (1993) 2 SCC 213, (v) Direct Recruit Class II Engineering Officers'
Association (supra), (vi) State of U.P. v. Rafiquddin, (1987) Supp SCC 401, (vii)
B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507, (viii) R.N. Nanjundappa
v. T. Thimmiah, (1972) 1 SCC 409 , (ix) Tilokchand and Motichand (supra), (x)
Hemanta Bhattacharjee vs. State of Assam & Ors., 2008 (4) GLT 7. Moreover,
submissions have also been made to distinguish the judgments cited by the
learned senior counsel for the petitioner in W.P.(C) 3819/2018.
Submissions made by learned counsel for Sitaram Doley [respondent no. 15 in
W.P.(C) 3291/2018 and respondent no. 8 in W.P.(C) 3616/2019].
17. The learned counsel for the said respondent had adopted the
submissions made by Mr. K.N. Choudhury, learned senior counsel for other
appearing respondents has further submitted that the said respondent was a
reserved S.T.(P) category candidate and therefore, his seniority must be
maintained as per the applicable roster.
Page No.# 22/41
Submissions by the learned Advocate General:
18. The learned Advocate General has referred to the affidavit-in-
opposition filed by the respondent nos. 2, 3 and 4 has submitted that he would
not take any stand which would run counter to the stand taken in para-9 of the
said affidavit-in-opposition.
Reasons and decision:
19. The case of the private respondent nos. 5 and 13 in W.P.(C)
3819/2018 is that by communication dated 22.01.1997, the APSC had
recommended the names of candidates for appointment as direct recruits as
well as under Regulation 3(f) of the 1951 Regulations. The service of the
petitioners and the private respondents was initially governed by the service
rules called the Assam Transport Service Rules, 1983. It has been projected that
the said 1983 Rules was in force till 10.10.2003, the date when the Assam
Transport Service Rules, 2003 was published in the Assam Gazette,
Extraordinary no. 116 dated 09.06.1984 at pages 1079-1090, vide notification
no. TMV 70/64/Pt/263 dated 29.05.1984. The said Rules cover, amongst others,
cadres of District Transport Officer, including Transport Officer (Pool) as per Rule
3(c) thereof. Rule 6(4) of 1983 Rules envisages that the posts of Enforcement
Inspector would be filled by two modes, i.e. (a) 75% of the posts shall be filled
up by direct recruitment in accordance with Rules 8, 9 and 20 of the said 1983
Rules, and 25% of the posts to be filled up from the ministerial cadre of the
District Transport Offices under the Commissioner of Transport in accordance
with Rules 7, 10, 11 and 18 of the said 1983 Rules. It may be mentioned that
Sub-Rule (4) was substituted by notification dated 01.03.1993. As per Rule 8 of
Page No.# 23/41
the 1983 Rules, the same provides for direct recruitment to the cadre of
Enforcement Inspector to be made in accordance with Rule 9. The provisions of
Rule 9 of 1983 Rules envisage appointment to be made on the basis of selection
made by the Assam Public Service Commission. As per Rule 20, amongst others,
subject to the provisions of Rule 19 (relating to reservation), the appointment
under Rule 8 is to be made by the Governor in accordance with the order of
preference determined in the select list. Moreover, Rule 21, provides as follows -
"A person shall join within 15 days from the date of receipt of the order of
appointment or promotion failing which the appointment or promotion as the
case may be shall be cancelled unless the appointing authority extends the
period which shall not in all exceed three months ." The provisions of Rule 24
relating to seniority provides as follows -
"24. Seniority.- (1) The seniority of a member in cadre, appointed by direct
recruitment or by promotion shall be determined according to the order of merit in
the respective select list, if he joins the appointment within 15 days from the date
of receipt of order or within the extended period as mentioned in Rule 21.
(2) If a member fails to join the appointment within the initial 15 days of
receipt of the order or within the extended period, as mentioned in Rule 21 but
joins later, seniority shall be determined in accordance with the date of joining.
(3) A member appointed to a cadre by promotion in a year shall be senior
to a member appointed to the cadre by direct appointment in that year.
(4) A member appointed as District Transport Officer by promotion from the
cadre of Motor vehicle Inspector/ Enforcement Inspector in a year shall be senior
to a member appointed as District Transport Officer by direct recruitment ."
20. The provisions of Rule 25 of 1983 Rules provides for
appointment on probation. However, it was not shown that any of the parties
hereto were appointed on probation. As per the provisions of Rule 26 thereof, a
gradation list is required to be published every year. The provisions of Rule 30
Page No.# 24/41
provides for power of the Government to relax the operation of the said 1983
Rules. The provisions of Rule 31 provide that if any question arises relating to
interpretation of the said Rules, the decision of the Government shall be final.
21. It is reiterated at the cost of repetition that the Assam Transport
Service Rules, 1983 was repealed by the Assam Transport Service Rules 2003,
which was framed under Article 309 of the Constitution of India and published
in the Assam Gazette Extraordinary no. 215 dated 10.10.2003 vide notification
no. TMV.259/88/Pt/152 dated 07.10.2003. As none of the petitioners or the
private respondents were appointed after 2003 Rules had come into force, the
said Rules has not been referred to.
22. It is seen that vide communication bearing Memo No. 119
PSC/DR-14/2/93-94 dated 22.01.1997, the Chairman of APSC had informed the
Secretary to the Government of Assam, Transport Department that 76 (seventy
six) candidates were interviewed by the Commission with the help of experts
deputed by the Government and recommended the names of 47 persons in
order of preference for recruitment to the post of Enforcement Inspector under
Transport and Tourism Department. The said communication does not indicate
whether apart from interview, any recruitment process was held for selection.
As per provisional gradation list dated 24.08.2011, the name of the petitioner,
Gautam Kumar Das [petitioner in W.P.(C) nos. 3291/2018 and 3616/2019]
appears at serial number 23 as a direct recruit and that the name of Himangshu
Kumar Das [petitioner in W.P.(C) 3819/2018] appears at serial no. 34 as a direct
recruit.
Page No.# 25/41
23. By the judgment and order dated 27.09.1996 in W.A. 76/1996,
inter alia, it was observed by the Division Bench of this Court that as per APSC
advertisement no. 4/92 dated 26.03.1992, nine vacancies in the post of
Enforcement Inspector was to be filled up, and it was observed that ..."since
against nine vacancies only seven names had been mentioned in the select list
and the respondent no. 1 had been placed as the first candidate in the waiting
list and was 8th candidate in order of preference recommended by the APSC, he
has to be treated as the 8th candidate recommended by the APSC for
appointment by direct recruitment to the nine posts of Enforcement Inspector
which had fallen vacant during the years 1990 and 1991 ..." and it was held that
"... In the aforesaid chart, one post out of the nine vacancies in the years 1990-
91 is shown as not filled up. Thus, if the said unfilled post of Enforcement
Inspector fallen vacant during 1990-91 is treated to have been filled up by Sri
Chandan Deka under the Assam Public Service (Appointment of Family Members
of Persons killed in Extremist/Terrorist) Rules, 1992 pursuant to directions in
Civil Rule No. 1683 of 1994, eight vacancies of the years 1990-91 can be filled
up by eight candidates recommended by the APSC including the respondent no.
1 by terminating the services of one ad hoc appointee and seven appointees
under Regulation 3(f) of the APSC (L&F) Regulations, 1951 ."
24. The case of Gautam Kumar Das, petitioner in W.P.(C) 3291/2018
and W.P.(C) 3616/2019 is examined, first in the context of Manoj Kumar
Choudhury [respondent no. 9 in W.P.(C) 3291/2018]. As per the Gradation List
as on 11.08.2018, the said respondent was appointed as Enforcement Inspector
on 12.02.1993. However, he was suspended vide notification dated 31.03.1997
and thereafter, his service was terminated vide notification dated 08.09.1997. It
Page No.# 26/41
is seen that the said respondent no. 9 got reinstated in service in light of the
orders passed in Civil Rule 284/1998 and that during the pendency of the writ
petition, the order of termination was revoked vide Government notification
dated 09.02.2001, and by another notification dated 22.03.2001, the order of
suspension was revoked, and the petitioner was reinstated and his place of
posting was given and therefore, this Court had closed the writ petition by
observing that on disposal of the criminal case, the State shall take a decision in
the matter and till then the interim order passed by the Court shall remain valid.
However, the fact remains that the appointment of Manoj Kumar Choudhury was
made under Regulation 3(f) of the 1951 Regulations, which was not extended
from time to time and the said respondent did not render any service from
08.09.1997 to 09.02.2001. As per the said Gradation List as on 11.05.2018, it is
not in dispute that in the APSC recommendation, the name of Manoj Kumar
Choudhury appears at "7 of 22.01.1997". Therefore, the order of the
Government under notification no.TMV.28/98/240 dated 20.06.2006 is found to
have preceded the APSC recommendation. Therefore, in so far as the
petitioners, namely, Gautam Kumar Das and Himangshu Kumar Das (petitioner
in W.P.(C) 3819/2018 are concerned, the said Manoj Kumar Choudhury has to
be placed below them. It may be mentioned that Himangshu Kumar Das is a
direct recruit and his position in APSC recommendation is at serial no. 20 of
22.01.1997, because in the said Gradation List as on 11.05.2018, the name of
the said Manoj Kumar Choudhury is reflected as an appointee under Regulation
3(f) of 1951 Regulation. Therefore, a direct recruit would have to be placed
before an appointee under Regulation 3(f) of 1951 Regulation.
25. For the aforesaid reasons, the petitioner in W.P.(C) 3819/2018,
Page No.# 27/41
namely, Himangshu Kumar Das, being a direct recruit out of APSC
recommendation dated 22.01.1997, has to be placed above other appointees
under Regulation 3(f) of 1951 Regulation, namely, (i) Sonit Kumar Bora, (ii)
Bapan Kalita, (iii) Manoj Kumar Choudhury, (iv) Jasbir Singh, (v) Dipak
Patowary, (vi) Muzibuddin Ahmed, (vii) Bhupen Chandra Gogoi, (viii) Apurba
Kumar Das, whose names appear at serial nos. 12, 13, 16 to 19, 21, and 24 of
Gradation List as on 11.05.2018. They are arrayed as respondent nos. 13, 14,
and 5 to 10 respectively in W.P.(C) 3819/2018.
26. The case of the petitioner, namely, Gautam Kumar Das is now
examined vis-à-vis respondent nos. 5 to 8 and 10 to 20 in W.P.(C) 3291/2018.
27. It is seen from the materials available on record that vide
communication bearing Memo No. 377.PSC/DR-13/3/91-92 dated 26.05.1995,
the Chairman of APSC had forwarded the names of 7 (seven) names to the
Secretary to the Government of Assam, Transport Department, thereby
informing the said authority that 32 (thirty two) candidates were interviewed by
the Commission with the help of experts deputed by the Government and
recommended the names in order of preference for recruitment to the post of
Enforcement Inspector under Transport and Tourism Department. The last name
in the said list i.e. at serial number 7 was of one Gautam Deka. Moreover, 7
(seven) further names contained in the waiting list" were also send, wherein the
name of Gautam Kumar Das, petitioner in W.P.(C) nos. 3291/2018 and
3616/2019 was at serial no. 1. As already mentioned herein before, the said
petitioner had approached this Court by filing a writ petition, and this Court by
an order dated 30.01.1996, allowed Civil Rule No. 4316/1995 by holding that
Page No.# 28/41
the case of the petitioner was covered by the decision of this Court in Civil Rule
nos. 4131/1995 and 2036/1995, and directed the respondent authorities to
appoint him as Enforcement Inspector and if necessary, by throwing out the ad
hoc appointees under Regulation 3(f) of 1951 Regulations within 15 (fifteen)
days from the date of receipt of the order. The State had challenged the said
order dated 30.01.1996 in an intra-Court appeal and the Division Bench of this
Court, by judgment and order dated 27.09.1996, dismissed W.A. No. 76/1996.
Thereafter, the petitioner, namely, Gautam Kumar Das was appointed as
Enforcement Inspector vide notification dated 13.02.1997.
28. In view of above factual matrix, the Court is unable to accept the
contention of the learned senior counsel and learned counsel for the contesting
private respondents that the petitioner, namely, Gautam Kumar Das, was not a
direct recruit, and not appointed in accordance with the APSC
recommendations, and that his appointment cannot be said to be dehors the
Rules because this Court found him to be entitled to appointment as 8 th
candidate. The Division Bench of this Court, in the judgment and order dated
27.09.1996 in W.A. 76/1996, had elaborately dealt with the number of vacancies
available during the relevant year i.e. 21 (twenty one) and had also taken note
of Rule 6(4) of the 1983 Rules as amended by Assam Transport Service
(Amendment) Rules, 1993 in respect of vacancies to be filled up by direct
recruitment (75%) and by way of promotion (25%) and justified the direction
issued by this Court in order dated 30.01.1996 in Civil Rule 4316/1995 to
appoint the said petitioner, namely, Gautam Kumar Das as one out of 8 (eight)
appointees, if required, by terminating the service of one ad hoc appointee and
seven appointees under Regulation 3(f) of 1951 Regulations. Thus, the
Page No.# 29/41
inevitable conclusion of the Court is that the petitioner, namely, Gautam Kumar
Das was a direct recruit as per the APSC recommendation dated 26.05.1995.
29. It is not the stand of any of the respondents including the State
respondents and the APSC that the said petitioner, namely, Gautam Kumar Das,
was offered letter of appointment and that he had failed to join within the time
as stipulated under Rule 21. The said petitioner was appointed vide notification
no. TMV.15/96/176 dated 13.02.1997, and that he had joined in the post of
Enforcement Inspector on the same day, i.e. 13.02.1997. Accordingly, his
position in the APSC selection list was mentioned as "8 of 26.05.1995" in the
draft gradation list as on 01.04.2015. However, he was placed below 4 (four)
appointees under Regulation 3(f) of 1951 Regulations, namely, Bapan Kalita,
Jasbir Singh, Dipak Patowary and Apurba Kumar Das. In W.P.(C) 3291/2018, the
said appointees are arrayed as respondent nos. 6, 10, 11 and 17 respectively. As
per Annexure-8 of W.P.(C) 3291/2018, the petitioner, namely, Gautam Kumar
Das had submitted a representation dated 20.08.2015 against relegating him
below the said appointees under Regulation 3(f) of 1951 Regulation, i.e. below
respondent nos. 6, 10, 11 and 17 respectively. The persons whose name
appears at serial nos. 13 to 27 of the Gradation List as on 11.05.2018 are all
arrayed as private respondent nos. 5 to 20 in W.P.(C) 3291/2018. In the said
Gradation List as on 11.05.2018, the name of Gautam Deka appears at serial
no. 11, whose position is shown in APSC recommendation list at 7 of
26.05.1995; the names of respondent nos. 5 to 20 are shown in APSC
recommendation list at serial nos. 1, 3, 5 to 11, 13 to 16 and 18 to 20 of
22.01.1997; and the name of the petitioner, Gautam Kumar Das is shown in
APSC recommendation list at 8 of 26.05.1995. Therefore, in the opinion of the
Page No.# 30/41
Court, notwithstanding that the petitioner was appointed on 13.02.1997, but the
said petitioner would still be entitled to notional benefit including seniority
(except pay for intervening period upto date of joining), on and from the date
when Gautam Deka, whose name appears at serial no. 11 of the Gradation List
as on 11.05.2018 (i.e. APSC recommendation position no. 7 of 26.05.1995) got
all his service benefit.
30. The service of respondent nos. 5 to 20 in W.P.(C) 3291/2018
were appointed/ regularised on various dates between 08.09.1997 and
30.08.2003. Thus, as they were from APSC select list of 22.01.1997 [direct
recruit and appointees under Regulation 3(f) of 1951 Regulations], and the
APSC recommendation in respect of the petitioner, namely, Gautam Kumar Das,
being referable to 26.05.1995, in the opinion of the Court, the said petitioner
has been able to make out a case that his seniority position in Gradation List as
on 11.05.2018 should be at serial no. 12 i.e. immediately after serial no. 11,
namely, Gautam Deka.
31. In this regard, the Court finds support from the case of Nabin
Chandra Bordoloi v. State of Assam & Ors., (2003) 2 GLR 561: 2003 (2) GLT
147: (2003) 0 Supreme (Gau) 48. Para 2, 3, 4 and 8 to 11 are quoted below:-
"2. The facts in brief are that the appellants, viz. Nabin Chandra Bordoloi
and Suraj Ali Laskar (whose heirs are brought on record since he expired during
the pendency of the proceeding) were appointed on 5.5.1984 under Regulation 3
(f) of the Assam Public Service (Limitation of Function) Regulation, 1951 (for short
"the Regulation 1951") to the post of District Elementary Education officers
(DEEO) and they joined duties on 22nd May, 1984. Later on the Government
issued an order dated 20.12.89 regularising their services with retrospective effect
from 16.1.1987.
3. On 13.7.1988 the Assam Public service Commission has conducted a
Page No.# 31/41
selection process for appointment on the post of DEEO respondent Nos. 3 to 10
were selected and were appointed in the post by order dated 13.7.1988, whereas
the appellants also participated in the same selection process but could not clear
it. On 20.4.1992 the State Government has published a provisional gradation list of
district Elementary Education Officers, wherein the appellants were shown juniors
to respondent Nos. 3 to 10 taking their dates of appointment and the period of
service from the date of the order of regularisation i.e. 20 thDecember, 1989 and
not from the date the appointment order was given effect to i.e. 16.1.87. The
appellants submitted representations unsuccessfully. Ultimately the Government
has issued a final seniority list of DEEO on 22.7.97, where the appellants were
shown as juniors to respondent Nos. 3 to 10. Aggrieved by the position assigned
to them the appellants have filed two writ petitions (viz. Civil Rule No. 336/98 by
Nabin Ch. Bordoloi and Civil Rule No. 337/98 by Suraj Ali Laskar). Respondent no.
3 and 5 also filed a writ petition in the High Court challenging the retrospective
regularisation of the appellants, which was registered as WP (C) No. 5342/99 (HK
Sarma and Anr. v. State of Assam and Ors.).
4. All these writ petitions were heard together and disposed of by the
learned single Judge by a common judgment and order dated 4.10.2001. The
learned Single judge was of the view that the petitioners' service from 16.1.87 till
they have been regularised cannot be counted for the purpose of ascertaining their
seniority as they were appointed on ad-hoc basis. The learned Single Judge has
placed reliance on the decisions of the Division Bench of this Court in Hemanta
Kumar Pegu and ors. Vs State of Assam and Others, 1988 (1) GLJ, 383 and Pranjit
Kumar Das Vs state of Assam and Ors., (1995) 1 GLR 229: 1995 (II) GLT 28. The
learned Single judge by its order dated 4.10.2001 dismissed the petitions filed by
the appellants herein and allowed the writ petition filed by the respondent No. 3
and 5. Aggrieved by the said judgment the three appeals have been preferred by
the appellants.
8. In Anup Kumar Das Vs Sanjib Kakati, 2000 (1) GLT 429 a Division
Bench of this Court has held that services rendered by an incumbent to a post
appointed under Regulation 3 (f) of the Regulation 1951 is not to be counted for
the purpose of seniority.
9. The Supreme Court in Rudra Kumar Sain and others Vs Union of India
and ors., (2000) 8 SCC 25, while dealing with the nature of the appointment held
that if an appointment is made to meet the contingency arising on account of
delay in completing the process of regular recruitment to the post due to any
reason and it is not possible to leave the post vacant till then, and to meet this
contingency an appointment is made then it can appropriately be called as a 'stop
gap' arrangement and a appointment in the post as 'ad-hoc' appointment.
Page No.# 32/41
10. Regulation 3(f) of Regulation 1951 contemplates exactly the same
situation where the appointments are made on the temporary basis for four
months because of the fact that regular appointments could not be made within
the short span of time. The appellants' appointments being a 'stop gap'
arrangement on ad-hoc basis till they have been regularised on 20.12.89, their
service on ad hoc basis could not be counted for the purpose of seniority. The
decision of the Government giving retrospective effect to appellants' regularisation
cannot be said to be a correct decision. However, the Government has corrected
its decision by not assigning the seniority to the appellants with retrospective
effect and they were given seniority from the date they have been regularised i.e.
20.12.89.
11. In our considered view the action of the Government does not require
any interference nor the order passed by the learned Single Judge. As a
consequence thereof, the appeals are dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs ."
32. At this juncture, it would be appropriate to refer to para-18 and
19 of the decision of this Court rendered in the case of Anamika Tamuli v. State
of Assam, (2018) 1 GLR: (2017) 0 Supreme (Gau) 879 . The said paragraphs are
quoted below:-
"18. In order to appreciate the contention of Mr. Dutta that Conclusion (B) of
Direct Recruit Class II Engineering Officers' Association (supra) will be applicable
to the case of respondent No. 5, it will be appropriate to extract herein below
Conclusions (A) and (B) as mentioned in Direct Recruit Class II Engineering
Officers' Association (supra), for a better understanding:
"(A) Once an incumbent is appointed to a post according to rule, his seniority has
to be counted from the date of his appointment and not according to the
date of his confirmation.
The corollary of the above rule is that where the initial appointment is
only ad hoc and not according to rules and made as a stop-gap arrangement,
the officiation in such post cannot be taken into account for considering the
seniority.
(B) If the initial appointment is not made by following the procedure laid down by
the rules but the appointee continues in the post uninterruptedly till the
regularization of his service in accordance with the rules, the period of
Page No.# 33/41
officiating service will be counted."
19. It is clear from Conclusion (A) that to enable seniority to be counted
from the date of initial appointment, and not according to the date of confirmation,
the incumbent of the post has to be initially appointed "according to rules". The
corollary set out in Conclusion (A) recites that where the initial appointment is only
ad hoc, and not according to rules, and made as a stop-gap arrangement, the
officiation in such posts cannot be taken into account for considering the seniority.
Thus, the corollary in Conclusion (A) expressly excludes the category of cases
where the initial appointment is only ad hoc and not according to rules, being
made only as a stop-gap arrangement. Conclusion (B) provides that the period of
officiating service will be counted if the initial appointment is not made by
following the procedure laid down by the rules but the appointee continues in the
post uninterruptedly till the regularization of his service. There can be no doubt
that both the Conclusions have to be read harmoniously."
33. It may be mentioned that the ratio laid down by the Full Bench
of the Supreme Court of India in the case of Direct Recruit Class II Engineering
Officers' Association (supra) has been followed in the cases of (1) Keshav
Chandra Joshi v. Union of India, 1992 Supp (1) SCC 272 (FB) , and (2) State of
West Bengal v. Aghore Nath Dey, (1993) 2 SCC 715 (FB) . In the case of Keshav
Chandra Joshi (supra), the Supreme Court of India while referring to the ratio
laid down in the aforesaid case of Direct Recruit Class II Engineering Officers'
Association (supra) had observed as follows:-
"...The controversy is as to which of the propositions would apply to the lie
facts of this case. The proposition 'A' lays down that once an incumbent is
appointed to a post according to rules, his seniority has to be counted from the
date of his appointment and not according to the date of his confirmation. The
latter part thereof amplifies postulating that where the initial appointment is only
ad hoc and not according to rules and is made as a stop-gap arrangement, the
period of officiation in such post cannot be taken into account for reckoning
seniority. The quintessence of the propositions is that the appointment to a post
must be according to rules and not, by way of ad hoe or stop-gap arrangement
made due to administrative exigencies. If the initial appointment thus made was
de hors the rules, the entire length of such service cannot be counted for
Page No.# 34/41
seniority. In other words the appointee would become a member of the service in
the substantive capacity from the date of his appointment only if the appointment
was made -according to rules and seniority would be counted only from that date.
Propositions 'A' and 'B' cover different aspects of one situation. One must discern
the difference critically. Proposition 'B' must, therefore, be read along with para 13
of the judgment wherein the ratio decidendi of Narendra Chadha was held to have
considerable force. The latter postulated that if the initial appointment to a
substantive post or vacancy was made deliberately, in disregard of the rule and
allowed the incumbent to continue on the post for well over 15 to 20 years without
reversion and still the date of regularisation of the service in accordance with the
rules, the period of officiating service has to be counted towards seniority. This
Court in Narendra Chadha's case was cognizant of the fact that the rules empower
the Government to relax the rule of appointment. Without reading, paragraph 13
and Proposition 'B' and Narendra Chadha's ratio together the true import of the
proposition would not be appreciated. We would deal with the exercise of power of
relaxing the rule later. After giving anxious consideration, we are of the view that
the latter half of Proposition 'A' would apply to the facts of the case and the rule
laid down in that half is to be followed. If the concerned rules provide the
procedure to fix inter se seniority between direct recruits and promotees, the
seniority has to be determined in that manner."
34. In the aforesaid context, it is observed that it is not the pleaded
case of the State respondents and/or by the private respondents that the
private respondents were initially appointed as per Assam Transport Service
Rules, 1983 (as amended in 1993) after undergoing a regular recruitment
process, but there was some irregularity in the appointment which was
subsequently regularised. Therefore, the Court is of the considered opinion that
the case of all those private respondents who were appointed under Regulation
3(f) of 1951 Regulations would fall within the scope of corollary to Conclusion 'A'
of the case of Direct Recruit Class II Engineering Officers' Association (supra) .
35. In the case of Umarani (supra), the Supreme Court had observed
that - "The Respondents herein were appointed only on applications made by
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them. Admittedly, no advertisement was issued in a newspaper nor the
employment exchange was notified as regard existence of vacancies. It is now
trite law that a 'State' within the meaning of Article 12 of the Constitution of
India is bound to comply with the constitutional requirements as adumbrated in
Articles 14 and 16 thereof. When Recruitment Rules are made, the employer
would be bound to comply with the same. Any appointment in violation of such
Rules would render them as nullities. It is also well-settled that no recruitment
should be permitted to be made through backdoor." The said principle was
subsequently followed by the Supreme Court of India in the case of R.S. Garg
(supra), wherein it was further observed as follows - " Even the State cannot
make rules or issue any executive instructions by way of regularization of
service. It would be in violation of the rules made under Article 309 of the
Constitution of India and opposed to the constitutional scheme of equality
clauses contained in Articles 14 and 16."
36. In the case of Rafiquddin (supra), the Supreme Court of India, in
reference to Rule 22 relating to seniority under the U.P. Nyayayik Seva
Niyamavali, 1951, took note that appointment to service must be made to
candidates appearing in competitive examination conducted by the Commission,
had observed as follows:-
"8. ... Rule 22 provides that the seniority in the service shall be determined by the
year of competitive examination on the results of which a candidate is recruited
and his position in the list prepared under Rule 19. The Rule clearly postulates
determination of seniority of members of the service recruited to the service
through competitive examination with reference to their position in the list of
approved candidates prepared by the Commission under Rule 19. The expression
"member of the service" as defined by Rule 4(e) means a person appointed in
substantive capacity under the provisions of the Rules. Rule 22 read with Rule 4(e)
lays down in unmistakable terms that the seniority of members of service is to be
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determined on the basis of the year of competitive examination and not otherwise.
In other words only those persons who are appointed in accordance with the Rules
on the result of a competitive examination are entitled to the determination of
their seniority in accordance with Rule 22. Seniority of a candidate appointed to
the service would depend upon the result of the competitive examination and his
position in the list prepared under Rule 19. Claim to seniority under Rule 22 cannot
be upheld if a candidate is not approved for appointment under Rule 19 and has
not found his way into the service on the recommendation of the Commission. We
therefore hold that the claim to seniority on the basis of the year of competitive
examination as contemplated by Rule 22 is available only to those candidates who
are approved by the Commission on the basis of their marks in the written and
viva voce test at the examination."
37. The provisions of Rule 24 of the Assam Transport Service Rules,
1983 has already been quoted herein before. It would now be relevant to quote
the provisions of Rule 22 of the U.P. Nyayayik Seva Niyamavali, 1951 which was
being examined in the case of Rafiquddin (supra). The same is as follows -
"22.Seniority - Subject to the provisions of Rule 31 the seniority of candidates
already in service at the time when these rules come into force would be
determined according to the Rules in force previously and for those appointed
subsequently the seniority shall be determined by the year of competitive
examination on the results of which a candidate is recruited and the position in
the list prepared under Rule 19 ." Thus, the provisions of Rule 24 of the Assam
Transport Service Rules, 1983 appears to be closely similar and therefore, the
decision of the Supreme Court of India in the case of Rafiquddin (supra) would
apply. Moreover, it is seen that the said decision was followed by the Division
Bench of this Court in the case of Hemanta Bhattacharjee (supra).
38. On examining the Gradation List as on 11.05.2018, it is seen that
(i) Ramesh Shyam and (ii) Rajib Kumar Pegu, i.e. the respondent nos. 18 and 19
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in W.P.(C) 3291/2018 [respondent nos. 11 and 12 in W.P.(C) 3819/2018], are
direct recruits and as per APSC recommendation, their names appear at serial
no. 18 of 22.01.1997 and 19 of 22.01.1997. However, they are shown to have
joined service on 17.01.2002. In this regard, it is seen that the general rule
followed in the State is that the validity of the select list is usually for 1 (one)
year. In this regard, reference may be made to the provisions of Rule 9(d) of the
Assam Transport Service Rules, 1983, wherein it is provided as follows - " The
list forwarded by the Commission shall remain valid for twelve calendar months
from the date of recommendation." No material has been produced in these
three writ petitions to demonstrate that in respect of the herein before named
(i) Ramesh Shyam and (ii) Rajib Kumar Pegu, the State Government had relaxed
Rule 9(d) of Assam Transport Service Rules, 1983. Therefore, the petitioners
have been able to make out a strong case for having their names placed before
the said two persons, namely, (i) Ramesh Shyam and (ii) Rajib Kumar Pegu, i.e.
the respondent nos. 18 and 19 in W.P.(C) 3291/2018 [respondent nos. 11 and
12 in W.P.(C) 3819/2018].
39. The learned senior counsel for the petitioner in W.P.(C)
3819/2018 had placed reliance on the decision rendered by the Supreme Court
of India in the case of R.N. Nanjundappa (supra), and B.N. Nagarajan (supra).
In this case the State respondents and/or the APSC have not taken a stand that
apart from exercising power under the Assam Transport Service Rules, 1983 (as
amended in 2003), they had also exercised power under Article 162 of the
Constitution of India. Therefore, the Court is of the considered opinion that
there is no need to discuss the said case. Moreover, reliance was also placed on
the case of Dr. M.A. Haque & Ors. v. Union of India & Ors., (1993) 2 SCC 213 . In
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the said case, the Supreme Court of India took cognizance of the State resorting
to irregular recruitment and issued a direction to the effect that seniority of
direct recruits, both outsiders and insiders should be determined according to
the dates of their regular appointment through UPSC.
40. Therefore, in light of the discussions above, the decisions cited
by the learned senior counsel for the respondents does not help to espouse the
cause of the private respondents. Thus, notwithstanding that in the two APSC
communications dated 26.05.1995 and 22.01.1997, it has not been mentioned
whether the names that were recommended were as Direct recruit or
appointees under Regulation 3(f) of 1951 Regulations, yet the nature of
appointment made is exposed from the two Provisional Gradation List as on
01.07.2011 and 01.04.2015 and Final Gradation List dated 11.05.2018. As
discussed herein before, the Court has already taken note of the fact that the
petitioner in W.P.(C) nos. 3291/2018 and 3616/2019 had submitted his
representation dated 20.08.2015 against the said provisional gradation list dated
06.08.2015. However, in the final gradation list dated 14.05.2018, the name of
the petitioner was placed at serial number 28. The case of the petitioner is that
his name should have been placed at serial number 12, just below the name of
Gautam Deka, whose name was recommended on 26.05.1995. Similarly, against
the gradation list dated 06.08.2015, the petitioner in W.P.(C) 3819/2018 had
also submitted his representation on 06.08.2015. Therefore, the Court does not
find that the challenge to the seniority position is vitiated by delay and laches.
Therefore, the case of Tilokchand and Motichand & Ors. (supra) would not help
the respondents in view of distinguishable facts.
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41. As discussed above, although vide APSC communication dated
22.01.1997, the APSC had recommended the names of direct recruits and under
Regulation 3(f) of 1951 Regulations but the appointment made under
Regulation 3(f) cannot be said to be an appointment made as per Assam
Transport Service Rules, 1951. Therefore, in light of the discussions above, all
the private respondents who are appointees whose names were recommended
by APSC under Regulation 3(f) of the 1951 Regulation, have to be placed below
the persons who were selected as direct recruits. Similarly, in light of the
discussions regarding the case of Manoj Kumar Choudhury [respondent no. 9 in
W.P.(C) 3291/2018 and respondent no. 5 in W.P.(C) 3819/2018], he will have to
make way for the petitioner in W.P.(C) 3291/2018 and W.P.(C) 3616/2019,
namely, Gautam Kumar Das, being referable to 26.05.1995. In the opinion of
the Court, the said petitioner has been able to make out a case that his seniority
position in Gradation List as on 11.08.1995 should be at serial no. 12 i.e.
immediately after serial no. 11, namely, Gautam Deka. Resultantly other persons
between serial nos. 12 to 28 would have to be pushed down and/or adjusted,
which includes the private respondents in these writ petition. The continuous
length of service of the relevant respondents under Regulation 3(f) of 1951
Regulations being merely an ad hoc service, cannot be counted towards
seniority.
42. In view of above, the writ petitions are allowed. The petitioners
are found to be entitled to the following reliefs:-
a. The Final Gradation List of Enforcement Inspector as on 11.05.2018
stands interfered with in so far as it relates to entries from serial
numbers 12 to 28 are concerned; and
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b. The respondent no. 1, i.e. the Commissioner and Secretary to the
Government of Assam, Department of Transport and in his absence,
the Head of the Department is directed to consider the finding
returned herein before and shall pass an appropriate order so as to
place Gautam Kumar Das, the petitioner in W.P.(C) 3291/2018 and W.P.
(C) 3616/2019 by placing him at serial no. 12 i.e. immediately after
serial no. 11, namely, Gautam Deka; and
c. The respondent no. 1, the Commissioner and Secretary to the
Government of Assam, Department of Transport and in his absence,
the Head of the Department is directed to consider the finding
returned herein before and shall pass an appropriate order so as to
place Himangshu Kumar Das, the petitioner in W.P.(C) 3819/2018,
being a direct recruit out of APSC recommendation dated 22.01.1997
above other appointees under Regulation 3(f) of 1951 Regulations
namely, (i) Sonit Kumar Bora, (ii) Bapan Kalita, (iii) Manoj Kumar
Choudhury, (iv) Jasbir Singh, (v) Dipak Patowary, (vi) Muzibuddin
Ahmed, (vii) Bhupen Chandra Gogoi, (viii) Apurba Kumar Das, whose
names appear at serial nos. 12, 13, 16 to 19, 21, and 24 of Gradation
List as on 11.05.2018. They are arrayed as respondent nos. 13, 14,
and 5 to 10 respectively in W.P.(C) 3819/2018; and
d. The remaining persons, if any, between serial nos. 12 to 28 would
have to be re-shuffled and/or adjusted after placing both the
petitioners at their rightful position; and
e. The respondent no. 1 and in his absence, the Head of the Department,
Department of Transport, Govt. of Assam shall pass appropriate orders
within 6(six) weeks to give full effect to the judgment and order.
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43. These three writ petitions stand allowed in terms of directions
mentioned herein before.
44. Under the circumstances, the parties are left to bear their own
cost.
JUDGE
Comparing Assistant
