By means of the present petition, the petitioners have prayed for issuing a writ of mandamus directing respondents to treat the petitioners to have been substantively appointed on the post of State Training Officer, Class-II Post with effect from the year 1988 and to give them all the consequential benefits of service to the petitioners. The petition also seeks issuance of a writ in the nature of mandamus directing respondents to finalize the seniority list and also not to issue any appointment order or not to make any promotion of State Training Officer Class I in pursuance of the D.P.C. held on 17.04.2006.
By way of amendment, the petitioners have also challenged the seniority list dated 13.04.2006, contained at Annexure 12 to the petition as well as the promotion order in pursuance to seniority list and the order dated 16.10.2007 passed by the State Government.
Brief facts of the case are that the petitioners were appointed in the year 1988 on ad-hoc basis having the requisite qualification and they had completed three years of continuous service in the year 1991 and were continuing in the service at the time of commencement of 2001 Rules. The services of the petitioners were regularized by order dated 14.02.2002. On 06.12.2005, a tentative seniority list was issued and the petitioners were placed at the bottom of the list. The petitioners were put on two years probation and thereafter they were confirmed on their respective posts vide order dated 09.11.2005. The Departmental Promotion Committee was held and the petitioners were not considered for promotion.
Learned counsel for the petitioner has submitted that the controversy involved in this petition has already been adjudicated by Hon'ble the Apex Court vide judgement and order dated 07.04.2015 rendered in Civil Appeal No.3348 of 2015 (Arising out of S.L.P. (Civil) No.18683 of 2004) and Civil Appeal No.3349 of 2015 (Arising out of SLP (Civil) No.8330 of 2005) in the case of Secretary, Minor Irrigation Department and R.E.S. vs. Narendra Kumar Tripathi.
Learned counsel for the petitioners has submitted that the sole question for consideration in this case is as to whether the services rendered by the petitioners in ad-hoc capacity from the date of his initial appointment i.e. 1988 till the date of regularization i.e. 14.02.2002 is to be reckoned for the purposes of giving benefit of seniority or not.
The law in respect of counting such services for the purposes of seniority has been summarized by Hon'ble Apex Court in the case of Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra and others, (1990) 2 SCC 715. Hon'ble Apex Court in this case has summed up that once an incumbent is appointed to a post according to rule, his seniority is to be counted from the date of his appointment and not from the date of his confirmation. The Apex Court further stated in the said judgment that 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. Hon'ble Apex Court in the said judgment has further observed as under:-
"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 officiating service will be counted."
The entire controversy, however, appears to have been set at rest by Hon'ble Apex Court in the case of Secretary, Minor Irrigation Department RES Vs. Narendra Kumar Tripathi, (2015)2 UPLBEC 1161 wherein the benefit of the principle propounded by Hon'ble Apex Court in para 47-B in the case of Direct Recruit (supra) has been extended to Narendra Kumar Tripathi who like the respondent No.1 was also initially appointed on ad-hoc basis and subsequently under the regularization rules, his services were also regularized.
The controversy raised before Hon'ble Supreme Court in the case of Secretary, Minor Irrigation Department RES (Supra) was akin to the controversy which is engaging the attention of this Court in this case. In the case of Narendra Kumar Tripathi Hon'ble Supreme Court has allowed all the benefits of ad-hoc services rendered by Sri Tripathi for the purposes of reckoning his seniority and other consequential benefits.
In view of the aforesaid observations, the seniority list dated 13.04.2006, contained at Annexure 12 to the petition as well as order dated 16.10.2007 passed by the State Government is hereby set aside.
The writ petition is allowed.
The respondents are directed to consider the case of the petitioners in terms of the judgment rendered by the Hon'ble Supreme Court in the case of Secretary, Minor Irrigation Department RES (Supra).
Order Date :- 30.9.2019/VNP/-