IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT ( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH ) WRIT PETITION (C) NO. 2973/2006 Sri Ajit Kumar Kakoti Lecturer, Son of Late Padmadhar Kakoti, Assam Textile Institute, Guwahati Versus-. PETITIONER 1. State of Assam represented by the Commissioner & Secretary to the Government of Assam, Education (CTM) Department, Dispur, Guwahati The Chief Secretary, to the Government of Assam, Dispur, Guwahati The Deputy Secretary, to the Government of Assam, Education (Higher) Department, Dispur, Guwahati The Director, Technical Education, Assam, Kahilipara, Guwahati Shri Ashok Kumar Das Lecturer (Senior Scale) Assam Textile Institute, Guwahati.. RESPONDENT BEFORE THE HON BLE MR. JUSTICE A.K. GOSWAMI For the petitioner : Mr. K. K. Mahanta, Sr. Advocate. For the respondents : Mr. K. Goswami, Advocate for respondent No. 5. Ms. P. Bhattacharjee, Standing Counsel, Education. Dates of hearing : and Date of judgement : W.P.(C) No. 2973/2006 1

2 JUDGMENT AND ORDER ( ORAL ) Heard Mr. K. K. Mahanta, learned Sr. Counsel for the petitioner. Also heard Mr. K. Goswami, learned counsel appearing for the respondent No. 5 and Ms. P. Bhattacharjee, learned Standing Counsel, Education. 2. The sole point for consideration in this case is as to whether the past service of the petitioner in Assam Syntex Ltd, a Government of Assam Undertaking can be taken into consideration for the purpose of counting his seniority in Assam Textile Institute, a Government institute, from the date of his appointment there as a Lecturer on The petitioner was appointed on as Sr. Technical Supervisor in Assam Syntex Ltd., which is a sister concern of Assam Industrial Development Corporation, in short, AIDC, also a Government of Assam Undertaking. The petitioner is a graduate in Textile Engineering and had initially joined as Management Trainee (Textile) in AIDC Ltd During his tenure in the Assam Syntex Ltd., the petitioner earned certain promotions, a detailed discussion of which is not relevant for this case. Subsequently, the petitioner, pursuant to an advertisement, submitted his candidature for his appointment as a Lecturer in Assam Textile Institute. He having been selected and recommended by the Assam Public Service Commission, in short, APSC, the petitioner joined as a Lecturer in Assam Textile Institute on after letter of appointment was issued on The date of joining in the Assam Textile Institute and his date of release from Assam Syntex Ltd is the same i.e By letter dated , the petitioner was also given pay protection under the provisions of FR 22-A providing that the personal pay that was granted would be merged with the next pay increment. 5. The respondent No. 5 was initially appointed as a Lecturer on ad hoc basis in March, 1990 and subsequently, APSC having selected and recommended him for being appointed as Lecturer in the Assam Textile Institute, he joined there on A seniority list dated was W.P.(C) No. 2973/2006 2

3 prepared in which, the name of the petitioner was at Sl. No. 4 and the name of the respondent No. 5 at Sl. No. 1. The respondent No. 5 was also given the senior scale w.e.f The petitioner had represented to carry forward his past service to Assam Textile Institute for the purpose of seniority. The representation of the petitioner was rejected by Order dated (Annexure 21) by the Government on the ground that services rendered in any establishment other then Government establishment cannot be counted and therefore, the seniority has to be counted from the date of his joining as Lecturer in Assam Textile Institute. 6. Mr. K.K. Mahanta, learned Sr. Counsel for the petitioner submits that while submitting his candidature for the post of Lecturer in Assam Textile Institute in response to the advertisement issued by the APSC, the petitioner had, as required by the said advertisement, submitted a No Objection Certificate, a copy of which is also produced before the Court. As the petitioner was selected in the interview held by APSC and as the petitioner was already in public employment being in the services of a Government of Assam Undertaking, it was ensured by both the authorities of the public sector undertaking and the Government that there is no break in service. Therefore, date of his joining in the Assam Textile Institute and date of his release from Assam Syntex Ltd. was same. It is contended by the learned Sr. Counsel that when pay protection was granted to him by the Government, there cannot be any justifiable reason for not carrying forward the past service rendered by the petitioner in the Assam Syntex Ltd. for the purpose of counting his seniority. It is also urged by him that there being no dispute that the Assam Syntex Ltd. is a public sector undertaking of Government of Assam, the reason cited for rejecting the representation of the petitioner cannot be sustained. 7. The learned Sr. Counsel also places reliance on a notification issued by the All India Counsel for Technical Education (AICTE) (Annexure 5) to contend that counting of service outside the education institution subject to the institution being one as enumerated in the notification, will be permissible to accord the benefit of past service and to that extent, there is total non application of mind on the part of the authorities while rejecting the prayer of the petitioner. It is contended by him that by an office memorandum dated W.P.(C) No. 2973/2006 3

4 (Annexure 18), the Government of Assam had adopted the AICTE notification dated He places reliance in support of his submission in a judgment of the Apex Court rendered in the case of Tej Narain Tewari Vs. State of Bihar and Ors., reported in (1993) Supp (2) SCC The contentions of Mr. Mahanta is opposed by Mr. K. Goswami, learned counsel for the respondent No. 5. At the outset, he raises the question of maintainability of the writ petition on the ground that two of the Lecturers senior to the petitioner have not been made party respondents. He submits that even the respondent No. 5 was not arrayed as a party respondent and as there was a potential of serious prejudice being caused to him in the matter of seniority, he had filed application for impleadment as party respondent in this proceeding and that is how, he is before this Court. His contention is that there cannot be any manner of doubt that if any order is passed in favour of the petitioner, surely and certainly, the two senior Lecturers as reflected in the seniority list will be affected and therefore, they are necessary parties in this proceeding and they being not arrayed as party respondents, the writ petition is liable to be dismissed for non-joinder of necessary parties. 9. Coming to the merits of the case, the learned counsel submits that grant of pay protection is one thing and claim of seniority another. In a case where pay protection is granted, the same does not affect, per-se, the rights of any other individual, but in a case where claim for seniority is prayed, the grant thereof may have adverse impact in the service career of an individual. 10. Therefore, his contention is that grant of pay protection would not lead to the inevitable conclusion that the petitioner is entitled to be accorded the benefit of past service. It is also submitted by him that the Assam Technical Education Service Rules, 1981, for short, the Rules, provide mechanism for determination of seniority. According to him, Rule 22 holds the key for resolving the dispute. There being no manner of doubt that the respondent No. 5 was a member in the cadre prior to the writ petitioner, there is no scope of amalgamating past service rendered in Assam Syntex Ltd. and seniority of the writ petitioner has to be counted from the date of his appointment in the Assam Textile Institute. Mr. Goswami further submits that the petitioner had W.P.(C) No. 2973/2006 4

5 applied for the post of Lecturer in the Assam Textile Institute and he having been selected, was appointed as Lecturer. It is a fresh appointment and has no connection whatsoever with his previous employment and therefore, even if there is no break between the date of his release from his earlier employment and date of joining in the fresh assignment, the same will have no bearing and is of no consequence. It is further urged by him that reliance placed on the AICTE notification dated is misplaced, as the same, in any view of the matter, cannot relate back to the year 1994 in absence of any stipulation that the same would have retrospective effect. If it was so, the petitioner would not have been even eligible to be appointed as Lecturer in Assam Textile Institute because in view of the AICTE recommendation dated , eligibility criteria for appointment in a teaching post is a 1 st class Bachelor degree in appropriate branch of engineering technology or 1 st class degree in appropriate branch for teaching post in humanities and science, and admittedly the petitioner is possessed of only 2 nd division in his degree of Bachelor of Textile. Mr. Goswami also submits that notification of AICTE on which reliance was placed by Mr. Mahanta only provides for placement of Lecturer in senior scale/selection grade subject to fulfilment of certain conditions if a Lecturer was having previous continuous service. It is also submitted by him that by a letter dated (Annexure 11), the petitioner had prayed only for his pay protection, which was granted and had not prayed for counting his service in Assam Syntex Ltd. for fixation of his seniority and it is at a much belated stage, in the year 2003, vide a letter dated , such claim was raised. In order to buttress his submission, the learned counsel has placed reliance on the decisions of the Apex Court in Gurmal Singh and Ors Vs. State of Punjab and Ors, reported in (1991) 1 SCC 189 and Surendra Singh Gaur Vs. State of MP & Ors, reported in (2006) 10 SCC Ms. P. Bhattacharjee, learned Standing Counsel, Education, by relying upon the affidavit filed, has contended that having regard to the Rules in force and also having regard to the fact that the petitioner was not employed in Government service, order dated cannot be faulted with. 12. I have heard the learned counsel for the parties and have perused the materials on record. W.P.(C) No. 2973/2006 5

6 13. This Court does not consider it necessary to determine whether the writ petition is liable to be dismissed for non-joinder of necessary parties in view of the fact that the incumbent at Sl. No. 1 in the select list in the form of respondent No. 5 is a party to the proceeding and is heard. 14. Rule 22 of the Rules reads as follows: Seniority - (1) The seniority of a member 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 the appointment within 15 days from the date of receipt of the order or within the extended period as mentioned in Rule 19. (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 19 but joins later, his seniority shall be determined in accordance with the date of joining. (3) A member appointed by promotion in a year shall be senior to a member appointed by direct recruitment in that year. (4) The seniority of officers recruited for special post and are continuing as such shall be determined by special orders of the Government. (5) The seniority of members of a cadre mentioned in Rule 3(1) but belonging to different branches of the cadre shall be determined in accordance with the date of joining. But in case two or more members join on the same date, their inter-se seniority shall be determined in accordance with date of birth. 15. Member is defined in Rule 2(f) of the Rules, to mean a member of the Assam Technical Education Service. Necessarily, one can be a member of the Assam Technical Education Service only after his appointment to the service. The petitioner was directly recruited to the post of Lecturer in terms of Rule 6 of the Rules. The respondent No. 5 was also similarly directly recruited, however, prior in point of time. W.P.(C) No. 2973/2006 6

7 16. The petitioner had, for better prospects, decided to participate in the selection process initiated by APSC for direct recruitment to the post of Lecturer. No doubt, the Government had accorded pay protection to the petitioner. This Court is inclined to accept the submission of Mr. Goswami that grant of pay protection and fixation of seniority are in two different planes and grant of pay protection, ipso facto, will not enable the petitioner to carry the benefit of past service for counting of seniority in the new post. When it is a case of direct recruitment, it will be difficult to visualise that past service could be carried forward for the purpose of fixation of seniority as such interpretation would result in causing violence to the provision of Rule 22. The AICTE notification of does not also in any way help the cause of the petitioner. At the relevant point of time, when the petitioner joined as Lecturer in Assam Textile Institute, the said notification had not seen the light of the day. That apart, Clause 9.0 of the AICTE notification, which was on the subject of revision of pay scales and associated terms and conditions of service of Teachers, Librarians and Physical Education Personnel for diploma level technical institutions speaks of counting of qualifying service for career advancement. Clause 9.2 thereof provides for counting of service outside the institutions only for the purpose of placement of Lecturers in senior scale/selection grade provided that the concerned Lecturer, amongst others, is possessed of the minimum qualifications prescribed by AICTE for appointment as Lecturers. Admittedly, the petitioner does not have such qualification as prescribed. 17. In Gurmal Singh (Supra), albeit in a different context, the Apex Court had stated that to permit a claim of seniority of an employee who had been inducted from Irrigation branch of the Public Works Department of Punjab to the Punjab State Tubewell Corporation would result in injustice to those employees whose seniority was based on their terms and conditions of service with the Corporation which have been entered into a long time before the transfer proposal came to be implemented. In Surendra Singh Gaur (Supra), it was held that past service rendered by an employee in the earlier department cannot be counted for the purpose of determining his seniority in the department in which he was transferred and absorbed on his personal request. W.P.(C) No. 2973/2006 7

8 18. The decision cited by Mr. Mahanta in Tej Narain Tewari (Supra) relates to a situation where service of an incumbent of a post was compulsorily transferred to a new post consequent upon which the previous post held by him was abolished and it was in that context, the Apex Court had stated that past service had to be reckoned for the purpose of computing seniority. The ratio is not applicable to the facts of this case. As has been noticed earlier, it was a voluntary decision of the petitioner to apply for the post of Lecturer in Assam Textile Institute. There was no office memorandum or notification at the relevant point of time enabling a person employed in a public sector undertaking to carry forward his past service should he be appointed in a Government post. The relevant Rules also do not provide any scope for accommodating the claim of the petitioner. 19. In view of the above discussion, I find no merit in this application and accordingly, the same is dismissed. No cost. JUDGE P.K. Sinha W.P.(C) No. 2973/2006 8