Gopal Mantri v. State Of Raj. & Anr.(9)

By The Court:

1. By this writ petition, Gopal Mantri (petitioner) has sought an appropriate writ for directing the respondent to fix his seniority in the cadre of Inspector Commercial Taxes in final seniority list published on 22.12.1990 u/r 15(1) of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (for short “the Absorption Rules”). Consequential relief sought for is that after due placement in the seniority list, since persons junior to him were promoted as Assistant Commercial Taxes Officers (ACTOs), his candidature be directed to be considered and if found suitable, he be also promoted with consequential benefits. Undisputed facts are that the petitioner was initially appointed as Junior Technical Assistant in the Directorate District Gazetters, Rajasthan by order dt. 28.8.74 (Ann 1) upto 28.2.75 or till further orders whichever is earlier, purely on temporary basis. As admitted by the petitioner, himself, in para 6 of his writ petition, the post on which he was appointed by order (Ann 1) was temporary one. Further admittedly his services were terminated by order dt. 11.11.75 of the Director District Gazetteers due to his overstay in leave, which was assailed by him in Writ Petition No. 99/77 which was allowed by this Court by its order dt. 30.9.85 which too stood affirmed by the Division Bench and the Apex Court. Be that as it may, the petitioner was reinstated in service as Junior Technical Assistant by order dt. 17.6.87 with effect from 11.11.75 pursuant to the order of this Court-operative part whereof runs as under:—

The effect of quashing of the order dated 11.11.75 (Ex. R5 & Ex. 12) would, therefore, be limited to the following consequences only in the peculiar facts and circumstances of this case:—

1/- that the petitioner would be reinstated. In case the post on which he was working, has been abolished then he would be absorbed on any equivalent posts in any other departments.

2/- that it would be open to the respondent to terminate the services of the petitioner prospectively, if it is permissionable under R. 23A of the Rajasthan Service Rules or by adopting any other lawful procedure.

3/- that, in case the respondent wants to hold either on inquiry or follow the procedure of permitting opportunity of showing cause before taking any action against the petitioner for over-staying from leave. The question which would be determined later on by the competent authorities then the petitioner should be paid subsistence allowance treating him under suspension during the period from the date of removal 11.11.75 till the final order is passed and this subsistence allowance according to the Rajasthan Service Rules for all this period should be paid to him.

4/- that in case the respondent decides not to hold any inquiry against him, nor to proceed with show cause notice for taking action against him then because the petitioner has not worked during all this period he would only be paid fifty percent of the salary till today. From today onward, he would be paid full salary and allowances till any other order under law is passed after following the procedure prescribed under the law and the guidance mentioned above.

In the result, this petition filed by the petitioner is partly allowed with the above observations. But, in the peculiar circumstances of the case, the parties would bear their own costs.”

2. Undisputably, the post of Junior Technical Assistant being temporary one stood abolished in 1985 and since the petitioner stood reinstated in service in deference to this Court's order dt. 30.9.85 but declared surplus, thereby he was sent to the General Administration Department (Gr. 3) for absorption by order dt. 17.6.87 (Ann2), where he joined on 23.6.87 (Ann3). Ultimately, upon having been considered by the Absorption Committee under the Absorption Rules, the petitioner was appointed as Inspector Commercial Taxes by order dt. 14.12.1987 (Ann4) in pursuance whereof he joined as such in the Commercial Taxes Department on 16.12.1987 and since then he has been continuing.

3. A dispute arose when the respondents published a provisional seniority list (Ann6) of Inspector Commercial Taxes on 8.6.90 as on 1.4.90, without showing name of the petitioner. Hence the petitioner made a representation (Ann7) on 9.7.90 for his placement in the seniority list under the Rules of Absorption as he has been in service since 1974. Final seniority list (Ann 8) was published by order dt. 22.12.90 without considering his representation. Hence this writ petition which was admitted by this Court. The stay application was allowed on 6.2.92 only to the extent that the petitioner appeared to have been absorbed under the Absorption Rules vide Annexure 4 on 14.12.87 and his seniority amongst the Commercial Taxes Inspectors should be fixed provisionally in accordance with the Rules as soon as possible but in no case later than three months. This Court by its order dt. 20.11.95 allowed second stay petition directing the respondents to consider the petitioner's case for promotion on the post of ACTO treating his services w.e.f 28.8.74 but the result of the petitioner shall not be declared.

4. It is the case of the petitioner that keeping in view nature of his appointment as Junior Technical Assistant in the District Gazetteers Directorate, he was entitled to his seniority being determined u/r 15(1) of the Absorption Rules because his initial appointment was a substantive in nature against a temporary post, inasmuch as after appointment upon his absorption as Inspector Commercial Taxes in the year 1987, he appeared in departmental examination and declared successful therein at first attempt as communicated by letter dt. 29.12.90 (Ann5).

5. However, Shri Ajay Rastogi learned counsel for the petitioner drew my attention to the seniority R. 15 of the Absorption Rules and contended that the action of the respondents in not placing name of the petitioner in the impugned final seniority is not only arbitrary but also in violation of Articles 14 & 16 of the Constitution of India so also R. 15(1) of the Absorption Rules. Much stress was laid by Shri Rastogi that the petitioner's services in parent department were in substantive capacity because he entered into service after due selection process whereunder one post of Junior Technical Assistant was advertised by the District Gazetteers Directorate in 1974 in news papers, for which 85 candidates were called for interview before the Selection Committee constituted of the members namely: (1) Dy. Secretary (Mrs. Chitra Chopra), (2) Director, District Gazetteers, (3) Dy. Director & (4) Sr. Research Officer of District Gazetteers and (5) one more other member, before whom the petitioner alongwith other candidates appeared and upon being selected he was appointed substantively as Jr. Technical Assistant.

6. On the other hand, learned counsel for the respondents laid much emphasis by reiteration of their case in the reply to the petition that once it is admitted case of the petitioner that he was initially appointed on temporary post, his such appointment cannot be construed as substantive and that being so, R. 15(1) of the Absorption Rules is not at all applicable to the petitioner so as to entitle him for determination of seniority w.e.f 1974 which is the year of his initial appointment in his parent department, and that apart, the selection process adopted before considering his candidature for appointment on the temporary post of Jr. Technical Assistant in his parent department cannot entitle him to be treated as substantively appointed because the post itself was temporary and not substantive one.

7. Pursuant to the orders dt. 25.10.2002 of this Court, an additional affidavit of the Officer Incharge of the case (Shri M.P Kalyan) was filed, as per which, order dt. 14.12.87 (Ann4) was issued by the General Administration Department (Gr. 3) showing therein 60 temporary posts of Commercial Taxes Inspectors as vacant as is evident from letter No. 87/11818.dt. 10.12.87 According to this affidavit, out of these 60 posts, the petitioner was adjusted on one temporary post in the respondent department as he was holding temporary post in his parent department and further that all these posts had become permanent and from these posts nobody was promoted and seniority list of Commercial Taxes Inspector as on 29.5.2002 has been filed as Annexure R1. It has also been stated that from the year 1986 to March 1989, no departmental examinations except in April, 1989 were conducted but the petitioner did not appear in April, 1989 and only in November, 1990 he appeared and was declared successful.

8. Having heard the learned counsel for the parties and perused material on record with reference to their rival contentions upon being considered, I find that the only controversy raised at the bar is as to from which date seniority of the absorbed petitioner is to be reckoned in view of his initial appointment in parent department followed by absorption in new department (respondent).

9. As per the petitioner's case, R. 15(1) of the Absorption Rules is applicable. Hence let me analysis this rule. R. 15 relates to seniority of the surplus employee and reads as under:—

“15. Seniority.—(1) The seniority of a surplus employee appointed substantively to a permanent post in the service or cadre in which he is absorbed shall be determined by the appointing authority concerned by placing him below the junior-most permanent employee of the new service or department who has a longer period of continuous substantive service on the post compared to the continuous substantive service of the surplus employee on equivalent or higher post. The seniority of a surplus employee who is absorbed on a higher posts on officiating basis shall be determined only in respect of his permanent post:

Provided that the seniority of the surplus employee whose length of continuous service in substantive or officiating capacity or in both such capacities is lesser than the length of continuous service in substantive or officiating capacity or in both such capacities of the junior most permanent employee of the service or cadre of the New department in which such surplus employee has been absorbed, shall be determined by placing the surplus employee immediately below the said junior most permanent employee in the service or cadre or the department in which the surplus employee has been absorbed.

Provided further that inter-se seniority of the surplus employees absorbed in a department/service/cadre or unit under an Appointing Authority and the employees of the service/cadre of the new department, for promotion to higher post in the service or cadre in which he has been absorbed shall be determined according to the date of continued officiation in a class or category of post concerned or an equivalent or higher post provided such officiation was not of the fortuitous nature or adhoc or an urgent temporary appointment, notwithstanding their year of substantive appointment or date of confirmation or the length of continuous substantive service in the different cadre post or service.

(2) The seniority of a surplus employee appointed to a new post in a temporary or adhoc capacity shall, pending his appointment on a substantive basis, be determined in the following manners:

(a) In the case of a surplus employee appointed temporarily to a new post his seniority among the temporary employees holding same posts in the service or cadre in which he is absorbed shall be determined by placing him immediately below the temporary employee of the new service or cadre who has rendered a longer period of continuous temporary service compared to the continuous temporary service of the surplus employee on same equivalent or higher post.

(b) In the case of surplus employee appointed on adhoc basis in a new post his seniority among the adnoc employee holding same posts in the service or cadre in which he is absorbed shall be determined by placing him immediately below the adhoc employee of the new service or cadre, who has rendered a longer period of continuous service on an adhoc basis compared to the continuous ad hoc service of the surplus employee on same, equivalent or higher post:

Provided that all substantive employees in a cadre or service including substantive surplus employees absorbed therein, shall rank senior to temporary employees appointed or absorbed under these rules in such cadre or service and all such temporary employees shall rank senior to all adhoc employees appointed or absorbed under these rules or otherwise.

Provided further that the seniority of the employee on a post in a cadre or service including surplus employees absorbed therein and who were substantive on such posts on or before 11th December, 1969, shall be determined according to the provisions of the relevant Service Rules.

(3) The seniority inter se of employees declared surplus from a service or cadre shall on their appointment to new posts in another service or cadre shall be the same as it existed in the former service or cadre.

10. In the service jurisprudence a post could be temporary or it could be permanent or it could be created for a definite period to meet a definite contingency. If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment not being either stop gap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stop gap basis then such an appointment cannot be held to be on substantive basis. The expression “substantive basis” is used in the service jurisprudence in contradistinction with adhoc or purely stop-gap or fortuitous.

11. For the purpose of determining seniority under Rule 15 what is necessary to be examined is the question as to whether the absorbed surplus employees were holding the post from where they are declared to be surplus on substantive basis, and if so, from what date. Such a question can be answered on the basis of relevant factors namely nature of post, the nature of test or selection held for filling up the post, the period of duration with which incumbent availed the post and all other relevant materials.

“Temporary appointment” (as defined in R. 3(m) means a temporary appointment made either against a temporary or permanent post other that an adhoc appointment. Similarly “Substantive appointment” as defined in R. 3(0) means an appointment made under the provisions of these Rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on probation or as a probationer followed by confirmation on the completion of the probationary period.

12. In the case at hand, only an initial appointment order dt. 28.8.74 (Ann 1) has been produced on record. A careful perusal of this order (Ann 1) makes it crystal that such an appointment was purely temporary for six months upto 28.2.75 or till further orders whichever is earlier. Moreover, as per a judgment dt. 30.9.1985 in petitioner's earlier writ petition against his termination from service w.e.f 11.11.75, a notice was issued to the petitioner on 27.1.1975 terminating his service w.e.f 28.1.75 U/r 23A of the Rajasthan Service Rules on the expiry of one month's notice and this notice though was revoked by the Director District Gazetteers Jaipur pursuant to which he joined his duty on 1.10.1975 but again he remained absent from duty and therefore he was relieved from service on termination by order dt. 11.11.75 which was challenged by him in writ petition No. 99/77 (supra).

13. Though under the order of this Court in writ petition, quoted above, the petitioner was reinstated but it is established that the petitioner was never confirmed by his parent department on the post of Jr. Technical Assistant obviously because of the reasons on record as taken note of by this Court. Contrarily from the judgment of this Court it is crystal clear that termination of the petitioner from service was quashed with a liberty to the employer to inter-alia (i) terminate the petitioner's services prospectively if it is permissible u/r 23A, R.S.R or by adopting any other lawful procedure; & (2) hold either an inquiry or follow the procedure of permitting the opportunity of showing cause before taking any action against him for over-staying from leave. One of the reliefs granted by this Court was that the petitioner would be reinstated and in case the post on which he was working, has been abolished then he would be absorbed on any equivalent post in any other department. Moreover admittedly the post on which the petitioner had been working either before his termination or reinstatement by virtue of a judgment of this Court, was subsequently abolished in 1985 obviously because of it being temporary and not substantive post. Though it is the petitioner's case that an advertisement was issued for appointment on the post in question on which he was declared surplus, but neither the appointment authority to that post of Jr. Technical Assistant has been impleaded as party nor a copy of such advertisement has been produced nor any documents alongwith Service Rules under which he was initially appointed in parent department have been produced so as to show the nature of post, the nature of test or selection held for filling up the post, which is necessary for the purpose of Rule 15 of the Absorption Rules.

14. Be that as it may, from the materials on record, as analysed above, I find that the selection process allegedly adopted by the Director District Gazetteers (appointing authority of the petitioner in his parent department for the post of Jr. Technical Assistant) was consisting of only an interview and not a recruitment test as prescribed under the relevant Service Rules for a substantive-post but it was meant for a temporary post. Further admittedly the petitioner was not confirmed on the post of Jr. Technical Assistant either before he was terminated from service or after reinstatement upon quashing of his such termination or before declaring him as surplus or before & after his absorption to the newly equated post. Even while considering his case and adopting procedure for his absorption u/r 7 of the Absorption Rules, by the Committee for allotment of surplus personnel like the petitioner, the appointing authority did not issue orders for such appointment to be either substantive or officiating, temporary or adhoc on such post or posts as indicated in the table prescribed in Rule 7, itself. In my considered view, the nature of interview having been taken by the Selection Committee for appointing the petitioner as Jr. Technical Assistant in the Directorate District Gazetteers under order dt. 28.8.74 (Ann 1) cannot be held as due selection by any of the methods of recruitment prescribed under any of these Rules so as to declare the post, itself, a§ substantive. It could at best be held as process of selection for temporary and not the substantive post.

15. Had there been a substantive appointment on the post of Jr. Technical Assistant in the parent department of the petitioner, it is surprising enough as to what was the necessity for the petitioner to have appeared in the department examination u/r 12 of the Absorption Rules, which he qualified under the order dt. 29.12.90 (Ann5) after his absorption to the new post of Inspector Commercial Taxes in the department (respondent), though as is evident from additional affidavit of the Officer Incharge of the respondent department, such departmental examination was conducted after his absorption firstly in April, 1989 wherein the petitioner did not appear but secondly, in November, 1990 wherein he qualified. R. 12 of the Absorption Rules is applicable to adhoc/temporary surplus employee covered by sub-rule (3) or sub-rule (5) of Rule 11.

16. That apart, the petitioner was firstly declared surplus, then absorbed by the Committee under the Absorption Rules on the equated post i.e Inspector Commercial Taxes by order dt. 14.12.1987 (Ann4) an endorsement made whereon is quoted thus—

17. A bare reading of such an endorsement makes it crystal that the petitioner was absorbed against one of total 60 posts of Inspector Commercial Taxes which were shown as vacant in the letter at. 10.12.87 of the Commissioner Commercial Taxes Department Rajasthan Jaipur and these 60 posts as is evident from the additional affidavit dt. 29.11.02 albeit were initially temporary ones but subsequently they had become permanent. Thus in my considered view, the post on which the petitioner was absorbed as Inspector Commercial Taxes under order dt. 14.12.87 (Ann4) cannot be held to have been created for a limited period to meet a particular contingency, nor such post can be held to be stop gap or fortuitous, rather on the basis of relevant factors discussed above, viz. the petitioner after having been absorbed has already qualified in the departmental examination under order dt. 29.12.90 (Ann5) conducted by the appointing authority to the new post which has become permanent, such a new post of Inspector Commercial Taxes on which he was absorbed, can be held to be on substantive basis. Since the petitioner was absorbed on substantive post by order dt. 14.12.1987, at best the petitioner can be held to have entitled for reckoning his seniority from the date of his entry i.e 14.12.1987 in the respondent department upon his absorption against one of total 60 posts shown in order at. 10.12.87 as referred to in order of his absorption at. 14.12.87 quoted above, and as a legal logical corrolary thereto, the petitioner will rank senior to the Inspectors Commercial Taxes who were appointed against 60 posts shown in the letter dt. 10.12.87 out of which on one post he was adjusted upon his absorption. In this view of the matter, Rule 15(1) of the Absorption Rules is held inapplicable to the petitioner as contended by his learned counsel for determining his seniority from 28.8.1974 In other words, in case of the petitioner, Rule 15(2) will apply. With the above observations, this writ petition is allowed to that extent only and accordingly the respondents are directed to place the petitioner treating him substantively appointed w.e.f 14.12.1987 as Inspector Commercial Taxes in the respondent department, in the impugned seniority list, for which the petitioner will also be entitled to consequential benefits including further promotions, if found selected to the higher post of Inspector Commercial Taxes alongwith arrears of pay & allowances on promotional posts flowing from his seniority from aforesaid date. Two months time is allowed to comply with aforesaid directions from the date of receipt of certified copy of this order/judgment.

18. No order as to costs.