Madhya Pradesh High Court
Swami Prasad Raikwar vs The State Of Madhya Pradesh on 6 October, 2023
Author: Gurpal Singh Ahluwalia
1 W.P. No. 12604/2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6th OF OCTOBER, 2023
WRIT PETITION No. 12604 of 2016
BETWEEN:-
SWAMI PRASAD RAIKWAR S/O SHRI HARJULAL
RAIKWAR, AGED ABOUT 55 YEARS, R/O
VILLAGE PRATHVIPUR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI JITENDRA KUMAR TIWARI- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH ITS SECRETARY, SCHOOL
EDUCATION DEPARTMENT, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. THE COLLECTOR, TIKAMGARH, DISTT.
TIKAMGARH (MADHYA PRADESH)
3. THE DISTRICT EDUCATION OFFICER,
TIKAMGARH, DISTT. TIKAMGARH
(MADHYA PRADESH)
4. PRINCIPAL GOVT. HIGHER SECONDARY
SCHOOL, JARON, DISTRICT TIKAMGARH
(MADHYA PRADESH)
2 W.P. No. 12604/2016
5. PRINCIPAL, GOVT. GIRLS HIGHER
SECONDARY SCHOOL, PRATHVIPUR,
DISTT. TIKAMGARH (MADHYA PRADESH)
6. THE TREASURY OFFICER, TREASURY
AND ACCOUNT AND PENSION OFFICE,
TIKAMGARH, DISTT. TIKAMGARH
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NAVEEN DUBEY- GOVERNMENT ADVOCATE)
---------------------------------------------------------------------------------------------------------
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 226 of Constitution of India has been
filed seeking following reliefs:-
"7.1 That by issuance of a writ in the nature of
Mandamus the Hon'ble High Court may be pleased
to call the entire records relating to the case of the
petitioner.
7.2 That by issuance of a writ in the nature of
mandamus the Hon'ble High Court may be pleased
to direct the respondents to give the seniority from
the date of his initial appointment i.e. from
09/07/1981 and accordingly promote the petitioner
as assistant grade III from the date he eligible with
all consequential benefits and arrears of the
difference of salary and seniority with the interest @
12% P.A.
7.3 That by issuance of a writ in the nature of
mandamus the Hon'ble High Court may be pleased
to direct the respondents to fix the seniority of the
petitioner in proper place according to the actual
position of the petitioner in the gradation list.
7.4 Any other writ direction order as may be
deemed fit in the circumstances may also be awarded
along with the cost of litigation."
2. It is the case of the petitioner that by order dated 29.06.1981 he
was appointed on the post of contingent employee on temporary basis.
Thereafter, by order dated 06.11.2000, the seniority list of the petitioner
was reckoned w.e.f. 09.07.1984 and it was directed that in the service
record, the seniority of the petitioner be mentioned as 09.07.1984 in
place of 09.04.1994. Since, the petitioner was not being regularized,
whereas; his juniors were regularized, therefore, he filed O.A. No.
318/1998. After the abolition of the State Administrative Tribunal, the
case was transferred to High Court and was registered as W.P. No.
12263/2003. Since, assurance was given by the authorities that they will
redress the grievance of the petitioner, therefore, the petitioner withdrew
a writ petition on 02.05.2005. However, by impugned order dated
14.12.2005 the date of regularization of the petitioner has been fixed as
15.08.1985 in place of 09.07.1984. Challenging the order passed by the
District Education Officer, Tikamgarh on 14.12.2005, it is submitted by
the counsel for the petitioner that fixation of the date of regularization is
bad-in-law. The petitioner is entitled to get regular pay scale from the
date of his initial appointment i.e. 09.07.1981. Now, the respondents
have issued the gradation list and have fixed the seniority of the
petitioner w.e.f. 15.08.1985 in place of his original order of appointment
i.e. 09.07.1981, therefore, the peons are likely to be promoted as
Assistant Grade-III and if the seniority of the petitioner is not rectified,
then he would suffer the irreparable loss. Accordingly, this petition has
been filed seeking the above mentioned reliefs.
3. Although the counsel for petitioner had argued the matter
claiming that the correction of his date of regularization from
09.07.1984 to 15.08.1985 was incorrect but the basic relief claimed by
the petitioner is that he should be regularized with effect from his initial
date of appointment and his seniority be fixed accordingly.
4. Per contra, the petition is vehemently opposed by counsel for the
respondents and they have supported the order dated 14.12.2005 by
submitting that the Peons who were appointed along with the petitioner
were regularized w.e.f. 15.08.1985. In fact for the purposes of
regularization, petitioner was called for interview, but he did not appear
in the interview and accordingly he was not regularized. Later on, he
approached the State Administrative Tribunal, therefore, he was granted
seniority w.e.f. 09.07.1984. Since, no order of regularization of
petitioner w.e.f. 09.07.1984 was issued and the order of regularization of
other employees was issued only on 31.07.1985 by which the date for
joining was fixed as 15.08.1985, therefore, the date of regularization of
the petitioner was rightly re-ascertained from 09.07.1984 to 15.08.1985.
5. Heard learned counsel for parties.
6. So far as the basic contention of counsel for petitioner that he is
entitled for regularization from the date of his initial appointment is
concerned, the same is misconceived. The petition is completely silent
on the question as to whether the appointment of the petitioner was
illegal or irregular and whether it was in accordance with the
recruitment rules and whether the petitioner was holding minimum
qualification or not?
7. The Supreme Court in the case of Malook Singh and others Vs.
State of Punjab and others decided on 28/09/2021 in Civil Appeal
No.6026-6028 of 2021, has held as under:-
"19. The judgment of the Single Judge in
Malook Singh's case essentially dealt with two
facets. The first was that persons who were
recruited after following the regular procedure
for selection after the date of regularization of ad
hoc employees on 1 April 1977 could not rank
senior to those who had been regularized prior to
their date of appointment. The second aspect on
which the Single Judge held in favour of the
petitioners in CWP No 2780 of 1980 was that
once regularization takes place, the length of ad
hoc service must count for the determination of
seniority. It is important to note here that the
second facet of the judgment of the Single Judge
was specifically kept open in the Letters Patent
Appeal by the Division Bench. Therefore, clearly
the judgment in Malook Singh's case did not
conclude the issue of whether ad hoc service
would count for the purpose of determining
seniority.
20. The law on the issue of whether the period
of ad hoc service can be counted for the purpose
of determining seniority has been settled by this
Court in multiple cases. In Direct Recruits
(supra), a Constitution Bench of this Court has
observed:
"13. When the cases were taken up
for hearing before us, it was faintly
suggested that the principle laid
down in Patwardhan case [(1977) 3
SCC 399: 1977 SCC (L&S) 391:
(1977) 3 SCR 775] was unsound and
fit to be overruled, but no attempt
was made to substantiate the plea.
We were taken through the judgment
by the learned counsel for the parties
more than once and we are in
complete agreement with the ratio
decidendi, that the period of
continuous officiation by a
government servant, after his
appointment by following the rules
applicable for substantive
appointments, has to be taken into
account for determining his
seniority; and seniority cannot be
determined on the sole test of
confirmation, for, as was pointed
out, confirmation is one of the
inglorious uncertainties of
government service depending
neither on efficiency of the
incumbent nor on the availability of
substantive vacancies. The principle
for deciding inter se seniority has to
conform to the principles of equality
spelt out by Articles 14 and 16. If an
appointment is made by way of
stop-gap arrangement, without
considering the claims of all the
eligible available persons and
without following the rules of
appointment, the experience on
such appointment cannot be
equated with the experience of a
regular appointee, because of the
qualitative difference in the
appointment. To equate the two
would be to treat two unequals as
equal which would violate the
equality clause. But if the
appointment is made after
considering the claims of all eligible
candidates and the appointee
continues in the post uninterruptedly
till the regularization of his service
in accordance with the rules made
for regular substantive appointments,
there is no reason to exclude the
officiating service for purpose of
seniority. Same will be the position
if the initial appointment itself is
made in accordance with the rules
applicable to substantive
appointments as in the present case.
To hold otherwise will be
discriminatory and arbitrary...
......
47. To sum up, we hold that
(A) Once an incumbent is
appointed to a post according to a
rule, his seniority has to counted
from the date of appointment and
not according to date of his
confirmation. The corollary to 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 considering the
seniority."
(emphasis supplied)
The decision in Direct Recruits (supra) stands
for the principle that ad hoc service cannot be
counted for determining the seniority if the initial
appointment has been made as a stop gap
arrangement and not according to rules. The
reliance placed by the Single Judge in the
judgement dated 6 December 1991 on Direct
Recruits (supra) to hold that the ad hoc service
should be counted for conferring the benefit of
seniority in the present case is clearly misplaced.
This principle laid down in Direct Recruits
(supra) was subsequently followed by this Court
in Keshav Chandra Joshi v. Union of India15 .
Recently a two judge Bench of this Court in
Rashi Mani Mishra v. State of Uttar
Pradesh16 , of which one of us (Justice DY
Chandrachud) was a part, observed that the
services rendered by ad hoc employees prior to
their regularization cannot be counted for the
purpose of seniority while interpreting the Uttar
Pradesh Regularization of Ad Hoc Appointment
Rules. This Court noted that under the applicable
Rules, "substantive appointment" does not
include ad hoc appointment and thus seniority
which has to be counted from "substantive
appointment" would not include ad hoc service.
This Court also clarified that the judgement in
Direct Recruits (supra) cannot be relied upon to
confer the benefit of seniority based on ad hoc
service since it clearly states that ad hoc
appointments made as stop gap arrangements do
not render the ad hoc service eligible for
determining seniority. This Court speaking
through Justice MR Shah made the following
observations:
"36. The sum and substance of the
above discussion would be that on a
fair reading of the 1979 Rules,
extended from time to time; initial
appointment orders in the year 1985
and the subsequent order of
regularization in the year 1989 of the
ad hoc appointees and on a fair
reading of the relevant Service
Rules, namely Service Rules, 1993
and the Seniority Rules, 1991, our
conclusion would be that the
services rendered by the ad hoc
appointees prior to their
regularization as per the 1979 Rules
shall not be counted for the purpose
of seniority, vis-à-vis, the direct
recruits who were appointed prior to
1989 and they are not entitled to
seniority from the date of their initial
appointment in the year 1985. The
resultant effect would be that the
subsequent re-determination of the
seniority in the year 2016 cannot be
sustained which was considering the
services rendered by ad hoc
appointees prior to 1989, i.e., from
the date of their initial appointment
in 1985. This cannot be sustained
and the same deserves to be quashed
and set aside and the seniority list of
2001 counting the services rendered
by ad hoc appointees from the date
of their regularization in the year
1989 is to be restored
37. Now so far as the reliance placed
upon the decision of this Court in the
case of Direct Recruit Class II Engg.
Officers' Assn. (supra), relied upon
by the learned Senior Advocate
appearing on behalf of the ad hoc
appointees is concerned, it is
required to be noted that even in the
said decision also, it is observed and
held that where initial appointment
was made only ad hoc as a stop gap
arrangement and not according to
the rules, the officiation in such post
cannot be taken into account for
considering the seniority. In the case
before this Court, the appointments
were made to a post according to
rule but as ad hoc and subsequently
they were confirmed and to that this
Court observed and held that where
appointments made in accordance
with the rules, seniority is to be
counted from the date of such
appointment and not from the date of
confirmation. In the present case, it
is not the case of confirmation of the
service of ad hoc appointees in the
year 1989. In the year 1989, their
services are regularized after
following due procedure as required
under the 1979 Rules and after their
names were recommended by the
Selection Committee constituted
under the 1979 Rules. As observed
hereinabove, the appointments in the
year 1989 after their names were
recommended by the Selection
Committee constituted as per the
1979 Rules can be said to be the
"substantive appointments".
Therefore, even on facts also, the
decision in the case of Direct Recruit
Class II Engg. Officers' Assn.
(supra) shall not be applicable to the
facts of the case on hand. At the cost
of repetition, it is observed that the
decision of this Court in the case of
Direct Recruit Class II Engg.
Officers' Assn. (supra) was
considered by this Court in the case
of Santosh Kumar (supra) when this
Court interpreted the very 1979
Rules."
The notification dated 3 May 1977 stated that the
ad hoc appointments were made in
administrative interest in anticipation of regular
appointments and on account of delay that takes
place in making regular appointment through the
concerned agencies. In this regard, the vacancies
were notified to the Employment Exchange or
advertisements were issued, as the case maybe,
by appointing authorities. The appointments
were not made on the recommendation of the
Punjab Subordinate Service Selection Board.
However, subsequently a policy decision was
made to regularize the ad hoc appointees since
their ouster after a considerable period of service
would have entailed hardship. Thus, the initial
appointment was supposed to be a stop gap
arrangement, besides being not in accordance
with the rules, and the ad hoc service cannot be
counted for the purpose of seniority."
8. Thus it is clear that if the initial appointment was not in
accordance with the recruitment rules, then the said period spent by the
petitioner cannot be considered for pensionary services. Once, it is not
the case of the petitioner that his initial appointment was against a
sanctioned post and was not illegal, he cannot claim regularization from
the date of his initial appointment.
9. So far as the contention of counsel for petitioner that the
correction of the date of regularization of the petitioner from 09.07.1984
to 15.08.1985 was incorrect is concerned, the same is misconceived.
When the interviews were being held for regularization of Peons i.e.
sometime in 1982, the petitioner did not participate in the said,
accordingly, he was not regularized. Thereafter, the petitioner
approached the State Administrative Tribunal by filing O.A.
No.318/1995 which was renumbered as W.P. No. 12263/2003 after its
transfer to the High Court. Thus, it is clear that the petitioner had
approached the State Administrative Tribunal after a delay of 13 years.
10. Be that whatever it may be.
11. The said Writ Petition No.12663/2003 was withdrawn by the
petitioner by order dated 02.05.2005. In order to show that the petitioner
was regularized w.e.f. 09.07.1984, the petitioner has relied upon the
letter dated 06.11.2000 which reads as under:-
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12. It is clear that by the said order, the petitioner was given seniority
w.e.f. 09.07.1984 and it was directed that the records be corrected. In
the said order itself it is mentioned that as per the service record, the
petitioner was granted regular pay scale w.e.f. 09.07.1984. The counsel
for the petitioner has not filed any document to show that the services of
the petitioner were regularized w.e.f. 09.07.1984.
13. Furthermore, the Peons who were appointed along with the
petitioner were regularized w.e.f. 15.08.1985. Therefore, the counsel for
petitioner was directed to address this Court as to how he can seek
regularization w.e.f. 09.07.1984. The counsel for petitioner could not
justify as to under what circumstances, he is claiming that he was
regularized either on 09.07.1984 or he is entitled for regularization
w.e.f. 09.07.1984. In the impugned order dated 14.12.2005, it is
specifically mentioned that on 09.07.1984, no order of regularization
was passed and the order of regularization was passed on 31.07.1985 in
respect of other employees and the regularized employee were directed
to submit their joining on 15.08.1985.
14. Since, the petitioner has been given the same treatment which was
given to Peons who were appointed along with the petitioner, therefore,
this Court is of the considered opinion that no case is made out
warranting interference.
15. Accordingly, petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
ashish
ASHISH KUMAR LILHARE
2023.10.10 18:03:27
+05'30'
