W.P.(C) No. 3177 of 2013 BEFORE HON BLE MR. JUSTICE MANASH RANJAN PATHAK 31.07.2017 Heard Mr. Bhaskar Dev Konwar, learned senior counsel assisted by Ms. Sheema Bhuyan, learned counsel appearing for the petitioner. Also heard Mr. Narayan Sarma, learned Standing Counsel, Education Department for the Respondent Nos. 1 and 2, Mr. Chandra Baruah, learned Standing Counsel, APSC, for the Respondent No. 3, Mr. B.C. Pathak, learned counsel for the respondent nos. 4 & 5, Mr. N.U.K. Nair, learned senior counsel assisted by Mr. A. S. Sarma, learned counsel for the Respondent Nos. 8 to 13 and 17 and Mr. Sunandan Khound, learned counsel for the Respondent No. 14. 2. It is submitted that since 07.06.1989 the petitioner herein served as Lecturer in Physical Science in the Government Banikanta College of Teacher Education, Guwahati; now known as the Institution of Advance Studies in Education. Initially the State Government in the Education (Personnel) Department vide Notification dated 07.06.1989 appointed the petitioner as a Lecturer of the said College under Regulation 3(1) of the Assam Public Service (Ad-hoc) Appointment Rules, 1986, for a period of 1 (one) year with effect from the date of taking over of charge or till regularization of her service by APSC, whichever is earlier. She accepted her said appointment, joined her service in said college as a Lecturer, which was extended from time to time. 3. By a subsequent Notification dated 21.09.1992, the State Government in the Education (Personnel) Department appointed the petitioner under Regulation 3(f) of the APSC (Limitation of Functions) Regulations, 1951 as a Lecturer in Physical Education in said Banikanta College of Teacher Education, Guwahati for a period of 4 (four) months with effect from 04.11.1991 which was again extended from time to time. Later, the APSC on 14.02.1995 issued a Call Letter directing her to appear for the interview on 28.02.1995 before the APSC, in which she appeared. WP(C) No. 3177 of 2013 Page 1 of 10
4. The APSC, on 03.08.1998, published the result of said selection of candidates for the post of Lecturers in Government B.T. & Provincialised Colleges in the State under the Higher Education Department and in the said Select List the petitioner was recommended at merit position No. 2 for the three posts of lecturers in Physical Science and, on the basis of the same, the State Government in the Education (Elementary) Department vide Notification dated 21.06.1999 regularised the services of the petitioner with effect from 03.08.1998, the date on which the APSC published the select list, observing that the inter-se-seniority will be determined as per the recommendation of the APSC. 5. In the meanwhile, before the aforesaid of publication of result by the APSC, the State Government in the Education (Higher) Department vide Notification dated 07.03.1996, regularized the services of the Respondents No. 4, 5, 6, 7 and 9 others, who were serving as Lecturers of B.T. Colleges in the State under Regulation 3(f) of the APSC. 6. On 07.05.2003, the State Government in the Elementary Education department published a draft gradation list of the Lecturers of Government and Provincialised B.Ed. Colleges of the State as on 01.04.2003, informing all concerned, inviting objections from the incumbents concerned on the said seniority list that observing that the aggrieved may file his/her objection if any to be submitted within 15 days from the date of issuance of the said list. 7. The petitioner submitted objection regarding fixation of her seniority in the said draft gradation list of lecturers in Government and Provincialised B.Ed. Colleges of the State stating that she is senior to the candidates including the present respondent Nos. 8 to 12 who were appointed only on 27.02.1998, whereas as per the Government Notification dated 07.06.1989 she has been continuously serving since 1989 working under Regulations 3(i) and 3(f) of APSC for the period of 1991 till 1998, appeared in the interview before the APSC on 28.02.1995 and was selected by the APSC, result of which was declared by APSC on 03.08.1998. However, without any change, the respondents in the State Government in the Education Department published the Final Gradation List on 10.01.2000 in which, the petitioner was placed at Seniority Position No. 20, maintaining the seniority positions of the private respondent Nos. 4 to 17 above the petitioners, though from WP(C) No. 3177 of 2013 Page 2 of 10
the said gradation list dated 10.01.2000, it clearly reflects that the respondent Nos. 8 to 17 all joined in the service as lecturers in Government & Provincialised B.T. Colleges of the State in February 1998, May 1994, October, 1992, July, 1999 and October 1999 respectively, whereas the petitioner joined her service 19.06.1989. 8. Claiming that her seniority has not been considered, the petitioner preferred a writ petition before this Hon ble Court, being W.P.(C) No. 2079 of 2004 and the Court after hearing the parties, by order dated 05.05.2004 disposed of the same, directing the Commissioner and Secretary to the Government of Assam in the Education Department to dispose of the representation of the petitioner dated 17.05.2003 and 20.05.2003 in accordance of law, within a period of one month, from the date of furnishing the certified copy of the said order before him, along with the copy of the writ petition and its enclosures and further directed the respondents therein that for the limited period of said one month, no action in furtherance of the impugned gradation list shall be taken. 9. In pursuance of the said order dated 05.05.2004 passed in W.P.(C) No. 2079/2004 the State Government in the Elementary Education Department by order dated 20.09.2004 disposed of the said representation of the petitioner dated 17.5.2003 with a speaking order that the petitioner s seniority was fixed from the date of announcement of the APSC s result along with other similarly situated persons as per the provisions of Rule 23 of the Assam Public Service Rules, 1982 which do not permit the regularisation of service covering the period under Regulation 3(f) of APSC and that there is no scope to review the petitioner s prayer for her seniority at that stage. 10. Though the State Government in the Elementary Education Department by an order dated 23.02.2012 subsequently allowed the petitioner to hold the charge of the Principal of Government Banikanta College of Teacher Education at Guwahati w.e.f. 01.02.2012 that was extended from time to time, but the said Department by its notification dated 02.05.2013 promoted the respondent Nos. 4 to 15, Lecturers of Government & Provincialised B.Ed. and B.T. Colleges of the State to the posts of Professors in Government & Provincialised B.Ed. and B.T. Colleges on officiating capacity for a period of one year under Regulation 4(b) of the APSC (Limitation of Functions) Regulation, 1951 w.e.f. the date of taking over their charge and posted WP(C) No. 3177 of 2013 Page 3 of 10
them at respective Government & Provincialised B.Ed. and B.T. Colleges shown against their names. 11. Being aggrieved with such promotions of the said respondent Nos. 4 to 15 to the post of Professors on officiating capacity disregarding her claim, the petitioner has preferred this writ petition for quashing the said notification dated 02.05.2013 promoting the private respondent Nos. 4 to 15 to the post of Professors in Government & Provincialised B.Ed. & B.T. Colleges of the State and also prayed to recast the final gradation list of Lecturers in the Government & Provincialised B.Ed. & B.T. Colleges of the State from Serial No. 1 to 20 by considering their seniority on the basis of their initial date of joining in service and with a further prayer to direct the respondents to promote her to the post of Professor in Government & Provincialised Colleges of Teacher Education including the said institutions of Advanced Studies in Education as per the recast gradation list and accordingly, to make further promotions to the post of Principals in such institutions. 12. The petitioner contended that though she joined her service as lecturer in a Government B.T. College on 19.06.1989, but because of different methods and different dates of regularisation, i.e. 07.03.2006, 27.02.1998, 03.08.1998 and 25.03.2003 (Cabinet Decision), four different groups of lectures of Government & Provincialised Colleges of Teacher Education in the State, who are juniors to her in service, joined later than her, have become seniors to her. 13. She further submitted that though she appeared in the interview before APSC on 28.02.1995 for regularization her service, but the APSC declared the result of said interview only on 03.08.1998, more than after three years and due to no fault of her she cannot lose her seniority. The petitioner further contended that without waiting for the regularization of services of 13 such lecturers of Government & Provincialised B.Ed. Colleges of the State, by the APSC who were appointed under Regulation 3(f) of the APSC (L of F) Rules, the State Government by the notification dated 07.03.1996 regularized such lecturers including the private Respondents No.4 to 7 but without following the same procedure with regard to the petitioner. The petitioner, in addition to that, contended that the State Government w.e.f. 27.02.1998 provincialised the Mangaldai College of Teacher WP(C) No. 3177 of 2013 Page 4 of 10
Education as well as Tezpur College of Teacher Education and, accordingly, provincialized the services of the respondents No.8 to 12 serving in the said two colleges w.e.f. 27.02.1998 and only after exercise of those two process of regularization by the State Government, The state respondents carried out the process of provincialization of such lecturers working in Government/Provincialised Colleges of Teachers Education through APSC and the APSC by its result dated 3.8.1998 also regularized the services of the Respondent Nos.7, 9, 13, 14, 16 and 17 out of which the services of Respondent nos. 9 was already provincialised by provincialization order dated 27.02.1999. But, in the seniority list the seniority of the respondent Nos. 8 to 15 were considered on the date of provincialization of their services and not from the date of regularization of services by the ASPC and all these affected the seniority position of the petitioner though she joined her service as lecturer in the Government College Teacher of Education almost nine years prior to them. The petitioner submitted that if the inter-se-seniority of the lecturer of such Government/Provincialised Colleges of Teachers Education was considered on the basis of length of continuous service, she would have been at second position of the gradation list of seniority of lecturers of such College Teachers of Education. According to the petitioner, she has been deprived not only from her seniority position, but also from the promotion to the post of professors though she is having the qualification of M.Sc. in Physics with a Degree of Master of Education and Ph.D. in education and belongs to reserved community of OBC. 14. The respondent Nos. 4 and 5 submitted that though in pursuance of the notification dated 28.06.1984, of the State Government in the Education Department, they have been serving as Lecturers in Kokrajhar College of Teacher Education under w.e.f. 03.07.1984 and 13.09.1984 respectively under Regulation 3(f) of the APSC (Limitation of Functions) Regulation, 1951, but they along with five others in a Writ petition being Civil Rule No. 2020/1994 approached this Court for a direction to the official respondents therein to regularise their service and on finding that they were appointed under Regulation 3(f) of the ASPC (L&F) Regulation, 1951, whose appointments were extended from time to time and are serving for about 10 years in various B.T. Colleges of the State, the Court by order dated 18.05.1995 passed in said C.R. No. 2020/1994 directed the State WP(C) No. 3177 of 2013 Page 5 of 10
Government to take steps for regularization of the services of the petitioners of the said writ petition, including the Respondent Nos. 4 and 5, without referring their cases to the APSC and to pass necessary orders of regularization. It is seen that pursuant to said order dated 18.05.1995 passed in Civil Rule No. 2020/1994, the State Government by notification dated 07.03.1996 regularized the services of the writ petitioner of said matter including respondent Nos. 4 and 5. 15. The Respondent Nos. 8 to 13 and 17 as well as the Respondent No. 14 contended that it is a fact that the petitioner was initially appointed under Regulation 3(i) and subsequently under Regulation 3(f) of APSC (Ad-hoc) Appointment Rules, 1986 and was finally regularized by the State Government on the basis of selection made by the APSC on 03.08.1998 and, in the meanwhile, two batches of lecturers of Government and Provincialised B.T & B.Ed. Colleges of the State were regularized by the State Government vide notification dated 07.03.1996 as well as provincialised their services w.e.f. 27.02.1998. The said Respondents also contended that the final gradation list of the lecturers of Government and Provincialised B.T. & B.Ed. Colleges of the State on 01.04.2003 was already assailed by the petitioner in her writ petition before this Court in W.P.(C) No. 2079/2004, in which she made prayer for quashing of the said gradation list and that the Court after considering the matter, directed the Commissioner and Secretary to the Government of Assam in the Education Department to dispose of the representation of the petitioner with regard to the said final gradation list as on 01.04.2003, pursuant to which the State Government in the Elementary Education Department by a speaking order dated 20.09.2004 disposed of the petitioner s representation dated 17.05.2003 clarifying that the provisions of Rule 23 of the Assam Public Service Rules, 1982 do not permit regularization of service covering the period under Regulation 3(f) of APSC and that there is no scope to review the petitioner s prayer for her seniority in the said final seniority list and that as the said order has now attained finality, not being challenged by the petitioner, now at such a belated stage, after nine years, she cannot unsettle the seniority position of the respondents by filing this writ petition, since the same cannot be re-opened for judicial scrutiny in the present proceeding as the same is barred by the principles of resjudicata. The said respondents further submitted that they are senior to the WP(C) No. 3177 of 2013 Page 6 of 10
petitioner and the State Respondents have promoted them to the posts of Professors. 16. The petitioner also filed her replies to the affidavits of the respondents as well as an additional affidavit in this wit petition and relied upon the judgment of this Court passed on 6.6.2014 in W.P.(C) No.2913 of 2012, wherein this Hon ble Court considered the judgment of the Hon ble Supreme Court in the case of Direct Recruit Class-II Engineering Officers Association -Vs- State of Maharashtra reported in (1990) 2 SCC 715 as well as State of West Bengal -Vs- Aghori Nath Dey reported in (1993) 3 SCC 371 wherein the Hon ble Supreme Court observed 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 the Rules and that when the initial appointment is only on ad-hoc and not according to rules and made as a stop gap arrangement, the service on such officiating basis in said post cannot be taken into account for considering the seniority. 17. It is seen that the State Government in the Education (Personnel) Department by notification No. EPG.726/87/Pt/9 dated 07.06.1989 subject to discharge without any notice and without assigning any reasons thereof, the petitioner and six others were appointed temporarily and until further orders a Lecturer of B.T. Colleges for one year w.e.f. the date of taking over charge or till regularisation by APSC, whichever is earlier, under Regulation 3(1) of the APSC (Adhoc) Appointment Rules, 1986 in the specified scale of pay and allowances as admissible under the Rules and was posted against the post of Physical Science at the erstwhile Banikanta College of Teacher s Education, Guwahati, which the petitioner accepted and joined her service in the said capacity on 19.06.1989 which was extended from time to time. 18. It is also seen that after the said Assam Public Service Commission (Adhoc) Appointment Rules, 1986 was repealed by the State Government by its notification dated 04.11.1991, by another notification No. B(2)H.259/92/128 dated 21.09.1992 the State Government in the Education (Personnel) Department appointed the petitioner as Lecturer in Physical Science at said Banikanta College of Teacher s Education, Guwahati, under Regulation 3(f) of the APSC (Limitation of Functions) WP(C) No. 3177 of 2013 Page 7 of 10
Regulations, 1951 for a period of 4 (four) months with effect from 04.11.1991 in the specified scale of pay and allowances as admissible under the Rule, under Notification No. and Date of original appointment No. EPG.725/27/Pt/123 dated 24.12.1991, which was extended from time to time till her service in the said post of Lecturer in Physical Science in the said Banikanta College of Teacher s Education, Guwahati was regularised by APSC on 03.08.1998 in terms of an interview held on 28.02.1995, conducted by the APSC. 19. The petitioner accepted her both appointments, (i) dated 07.06.1989 under Regulation 3(1) of the APSC (Adhoc) Appointment Rules, 1986 and the other (ii) dated 21.09.1992 under Regulation 3(f) of the APSC (Limitation of Functions) Regulations, 1951, which was issued after repealing the said 1986 Rules. 20. The Assam Public Service Commission (Adhoc) Appointment Rules, 1986 came into force w.e.f. 07.05.1986, the date when it was published in the State Gazette and it was framed to regulate the ad-hoc appointment in public services under the Government of Assam and Regulation 3(1) of said APSC (Adhoc) Appointment Rules, 1986 provided for Ad-hoc appointment, which read as : 3. Ad-hoc appointment (1) Notwithstanding anything contained in any Service Rules, ad-hoc appointment by direct recruitment to a temporary post created under the Government may be made, if it is necessary in public interest that the appointment should be made immediately and reference to the Commission (APSC) would cause undue delay: Provided that if the post has been sanctioned for or is likely to last for more than four months, the Commission shall, as possible, be consulted for making the appointment on regular basis, as provided for in Clause (c) of subrule (2) of the said Rule (1986 Rules). 21. The Assam Public Service Commission (Limitation of Functions) Regulations, 1951 is a regulation specifying the matters in which it shall not be necessary to consult the Public Service Commission and Clause 3 (f) of said 1951 Regulation provides that 3. It shall not be necessary for the Commission to be consulted in matters relating to methods of recruitment to civil services and post or the suitability of the candidates for such appointments, in the following cases, namely (a).. (b).. (c).. (d).. WP(C) No. 3177 of 2013 Page 8 of 10
(e).. (f) when an appointment is to be made by direct recruitment to a temporary post created in a service if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay; provided that if the post has been sanctioned for, or is likely to last for more than four months, the Commission shall as soon as possible, be consulted in all matters mentioned in sub-clause (3) of Article 320 of the Constitution. 22. In the case of Direct Recruit Class II Engg. Officers Assn. -Vs- State of Maharashtra, reported in (1990) 2 SCC 715 placed by the petitioner in her support, the Hon ble Supreme Court have held 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 regularisation 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. 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. 23. In the present case, it is noticed that the petitioner did not challenge the speaking order dated 20.09.2004 passed by the State Government in the Education (Elementary) Department pursuant to the order dated 05.05.2004 passed by this Court in W.P.(C) No. 2079/2004, wherein the State Government explained its inability to review her seniority position in the final gradation list of lecturers of Government and Provincialised Teachers Training (B.Ed.) Colleges of the State as on 01.04.2003 observing that the period under Regulation 3(f) of the APSC (L of F) WP(C) No. 3177 of 2013 Page 9 of 10
Regulations, 1951 is not covered for the purpose of seniority and by efflux of time said order dated 20.09.2004 has attained finality, as the petitioner did not challenge the same before any Court of law, except filing of this writ petition on 30.05.2013. As such the Court is of the view that it cannot exercise its power under the writ jurisdiction at a distant time after more than 8 (eight) years 8 (eight) months to determine the seniority of the petitioner above the respondents so as to unsettle a settled thing. 24. Further, the seniority position of the Respondent Nos. 4 and 5 were determined as the State Government by notification dated 07.03.1996 regularized their services in terms of an order dated 18.05.1995 passed by the Court in Civil Rule No. 2020/1994, where the Court considering their long tenure of service under Regulation 3(f) of the APSC (L of F) Regulations, 1951, directed the State Government to regularise their service without the consideration to be made by the APSC. 25. Moreover, with regard to other private respondents, when the colleges they were serving, were brought under provincialization by the State Government w.e.f. 27.02.1998, therefore, their services were also brought under provincialisation from the same date i.e. from 27.02.1998 itself. 26. Furthermore, vide notification dated 02.05.2013, the private respondent Nos. 4 to 15 were promoted to the posts of Professors under Regulation 4(d) of the APSC (L of F) Regulations, 1951 on officiating basis against vacant posts only on the basis of their seniority above the petitioner as Lecturers, who are senior to the petitioner. 27. For the reasons above, this writ petition being devoid of merit, stands dismissed. JUDGE ISINGH WP(C) No. 3177 of 2013 Page 10 of 10