L T MORAIS Vs. J A JAMES

JUDGEMENT

(1.) THESE writ appeals have been filed against the common order allowing Writ Petition Nos. 2684 of 1983 and 2733 of 1986 filed by the first respondent in Writ Appeal Nos. 551 and 552 of 1988 respectively, and setting aside the seniority list dated 15. 3. 1983 and restoring the seniority list published on 24. 9. 1981. The appellant herein is the 4th respondent in both the writ petitions referred to above.

(2.) B y the order dated 18. 8. 1959, the appellant was appointed as apprentice in the Tuticorin Port Trust and the period of apprenticeship ended on 19. 8. 1960. Between 27. 1. 1961 and 23. 2. 1963, the appellant was employed in the Madras Electricity Board as construction foreman. Again on 27. 3. 1963, the appellant was appointed as Tracer in the scale of pay of Rs. 110-4-150-EB-4-170-5-180-EB-5-200 in the Tuticorin Port Trust. Thereafter, by the order dated 8. 7. 1963, the appellant was appointed as Section officer (Civil) in the scale of pay of RS. 180-10-290-EB-380 with effect from 1. 7. 1963 against the post sanctioned by the Ministry. On 17. 7. 1963 an advertisement inviting applications for the post of Section Officer in the tuticorin Port Trust was issued. On the basis of the said advertisement, the first respondent in W. A. No. 551 of 1988 applied for appointment as Section officer and on 6. 11. 1963 he was appointed as Section Officer. Similarly, on 11. 11. 1963 Shri A. S. Ganapathi, the first respondent in W. A. No. 552of 1988 was appointed as Section Officer. Subsequently, questions arose regarding the inter se seniority of the diploma holders like the appellant and the first respondent in these writ appeals in the category of Section Officer/junior Engineer, working in the Tuticorin Port Trust. This question eventually came to be agitated before this Court in Writ Petition Nos. 6700, 6701 of 1973 and w. P. Nos. 161 of 1974, 1852 of 1974 filed by the first respondent in Writ Appeal no. 551 of 1988 and in Writ Petition No. 6704 of 1973 filed by one Thiru vetrivelsamy. All the writ petitions referred above were dismissed by a single judge of this Court. Against the dismissal of W. P. No. 6704 of 1973 Thiru vetrivelsamy filed Writ Appeal No. 446 of 1974 and against the dismissal of Writ petition No. 6700 of 1973, Writ Appeal Nos. 591 to 594 of 1974 have been filed. By the judgment dated 15. 11. 1977, a Division Bench of this Court disposed of the above writ appeals. The question of fixation of inter se seniority in the category of Section Officer/junior Engineer was dealt in Writ Appeal No. 594 of 1974 and the Division Bench in Writ Appeal No. 594 of 1974 directed that the inter se seniority of Section Officer/junior Engineers should be re-fixed after publishing the draft seniority list, inviting objections and representations and finalising the seniority list after giving reasons and making a speaking order. Pursuant to the judgment of the Division Bench dated 15. 11. 1977, by his proceedings dated 1. 7. 1981 , the third respondent circulated the draft seniority list as on 31. 3. 1980. In the said draft seniority list, the seniority of the first respondent in W. A. No. 551 of 1988 was shown against si. No. 2. In the said draft seniority list, the period of service of the appellant from 1. 7. 1963 to 27. 3. 1966 in the Tuticorin Harbour Project was shown as ad hoc service and it was further shown that the appellant was deemed to have been regularly appointed as Section Officer with effect from 28. 3. 1966. In fixing the inter se seniority, the 3rd respondent also invited objections and representations. After receiving the same, the 3rd respondent by his proceedings dated 24. 9. 1981 published the final seniority list. In the final seniority list, the first respondent in W. A. No. 551 of 1988 was shown against serial No. 2 and the appellant was shown against Serial No. 11. Subsequently, the third respondent found that the seniority list dated 24. 9. 1981 was inherently defective and erroneous and consequently another draft seniority list was prepared by the'3rd respondent on 31. 7. 1982 and circulated to all the interested parties who were given an opportunity to raise objections if any to the draft seniority list dated 31. 7. 1982. After considering the objections of the interested parties, on 15. 3. 1983, the seniority list of Section officers/junior Engineers was finalised as on 8. 8. 1973. In the seniority list dated 15. 3. 1983, the first respondent in W. A. No. 551 of 1988 was shown as No. 4 and the first respondent in W. A. No. 552of 1988 shown as No. 8 and the appel-lant was shown as No. 2. Aggrieved by the seniority list dated 15. 3. 1983, the first respondent in these writ appeals filed W. P. Nos. 2684 of 1983 and 2733 of 1986 respectively to quash the said seniority list dated 15. 3. 1983 so far as it relates to the appellant and one Chinna Kaliapillai and to implement the seniority list dated 24. 9. 1984.

(3.) THE question was have to examine in this case is whether the appellant's appointment as Section Officer on 1. 7. 1963 can be considered as an ad hoc appointment and whether his services from 1. 7. 1963 to 27. 3. 1966 can be considered only as ad hoc service. It must be remembered that on 1. 7. 1963 when the appellant was appointed as Section Officer there was no rule prescribing three year experience qualification as an essential qualification for appointment as a Section Officer and therefore, it cannot be said that his initial appointment was made according to rules. By the order dated 8. 7. 1963, the appellant was appointed as Section Officer (Civil) with effect from 1. 7. 1963 against the post sanctioned by the ministry. THEre is nothing in the order of appointment to show that the appellant's appointment is an ad hoc appointment. On the other hand, the order of appointment shows that the petitioner was appointed against the post sanctioned by the ministry and that he was put on probation. On 5. 10. 1971, the appellant was promoted temporarily as Assistant Engineer. Further on 14. 2. 1972, quasi promotion status of the appellant was declared in the post of Section Officer with effect from 1. 7. 1966. Again on 30. 4. 1975, the appellant was confirmed as junior Engineer with effect from 18. 12. 1973. THE appellant was also confirmed as Assistant Engineer with effect from 11. 7. 1977 by the order dated 20. 10. 1977. THE above factual materials go to show that the appellant continued in the post of Section Officer-uninterruptedly till he was promoted to the next post. It is seen from the counter affidavit filed in the writ petition by the 3rd respondent herein that the condition that for initial appointment as Section officer, the person should have got three years previous experience was first introduced only by the exployment notice issued by the Tuticorin Harbour project on 17. 7. 1963 and there was no such condition prior to the said notice. As pointed out by the learned single Judge, the following are the four categories of Section Officer/junior Engineer appointed in the Tuticorin Port trust: 1. Persons appointed as Section Officers prior to 17. 7. 1963. 2. Persons appointed between 17. 7. 1963 and 30. 12. 1968. 3. Persons appointed between 30. 12. 1968 and 1. 4. 1979. 4. Persons appointed on or after 1. 4. 1979. However, the observation of the learned single Judge that out of these four categories of persons employed as Section Officers, the appellant who was appointed on 1. 7. 1963, did not possess the required three years experience is not correct because on the date when the appellant was appointed as Section Officer on 1. 7. 1963, no rule prescribing three years experience qualification was in force. THE 3rd respondent has stated in detail the circumstances under which the first seniority list dated 24. 9. 1981 was prepared and the circumstances which necessitated the prepared and the circumstances which necessitated the preparation of the revised seniority list dated 15. 3. 1983 in para 9 of the counter affidavit filed in the writ petitions in the following terms: 'it is true a draft seniority list as on 31. 3. 1980 was circulated by me in proceedings No. A/u2/ 23021/81/d5587, dated 1. 7. 1981 as averred in para (7) of Petitioner's affidavit. It is also true that in the draft seniority list petitioner's seniority was shown against S. No. 2 and the date of his regular appointment was given as 6. 11. 1963. But it is not correct to state that this is as it ought to be. It is true that in that seniority list 3rd respondent was shown against S. No. 9 and 4th respondent was shown against S. No. ll. But it is not correct to state that the 3rd and the 4th respondents must be deemed to have been regularly appointed with effect from 6. 8. 1965 and 28. 3. 1966 and that these dates viz. , 6. 8. 1985 and 28. 3. 1966 are as they ought to be. THE seniority list dated 24. 9. 1981 above referred to having been found to be inherently erroneous was later revised and a correct seniority list was formulated by me on the advice of the 1st respondent on 31. 7. 1982. It is therefore not open to the petitioner to make any contention based on the seniority list dated 24. 9. 1981. THE contention made by the petitioner that the period of service of the 3rd respondent between 6. 8. 1962 to 5. 8. 1965 was to be treated as ,adho c appointment and he must be deemed to have been regularly appointed with effect from 6. 8. 1966 and the period of service of 4th respondent from 1. 7. 1963 to 27. 3. 1966 in the Tuticorin Harbour project was, to be treated as ad hoc appointment, and he must be deemed to have been regularly appointed with effect from 28. 3. 1966 are quite untenable. As there was no pre-condition of three years experience for appointment as Section officer/junior Engineer on the dates of their appointment, the contentions of the pettioner as regards the deemed dates of appointment in the case of 3rd and 4th respondents, are baseless and unwarranted. It is true that 1 have faithfully followed the judgment of this Honourable Court dated 15. 11. 1977, in fixing the inter se seniority. But in implementing the Judgment an error was committed by not applying the correct principles and the seniority list published on 24. 9. 1981 had therefore to be set right by rectifying the error. THE condition of 3 years previous experience for appointment as Section officers/junior Engineer in the Tuticorin Harbour Project was for the first time introduced only by the Employment Notice issued on 17. 7. 1963. This condition cannot therefore be supplied retrospectively to those appointed before 17. 7. 1963. THE seniority list published on 24. 9. 1981 had been formulated by me without taking into consideration the fact that the condition of 3 years previous experience cannot be applied to those appointed prior to 17. 7. 1963. THE list therefore sufferred from an apparent error. This error was pointed out to me by the 1st respondent and I corrected the error and prepared and published a revised list on 31. 7. 1982 vide proceedings no. A2/23 ()21 82/d. 4789, taking into account that the condition of 3 years previous experience will not apply to respondents 3 and 4 who were appointed prior to 17. 7. 1963. It is therefore submitted that the seniority list published on 13. 7. 1982 after rectifying the mistake originally committed is alone in conformity with the judgment of this Hon'ble Court dated 15. 11. 1977.' On a careful examination of the circumstances mentioned in para 9 of the counter affidavit we are fully satisfied that the 3rd respondent is justified in revising the seniority list dated 24. 9. 1981 and issuing a final seniority list dated 15. 3. 1983 be-cause in the seniority list dated 24. 9. 1981, the 3rd respondent proceeded on the wrong basis the three year experience qualification is essential even in respect of appointment of Section officers made prior to 17. 7. 1963, even though no such rule was in force prior to 17. 7. 1963. It is also seen from the counter affidavit of the 3rd respondent that when the draft seniority list dated 1. 7. 1981 was circulated to the appellant he submitted his representation dated 14. 10. 1981 objecting to the seniority list dated 1. 7. 1981. THE admitted factual position is that on 1. 7. 1963 when the appellant was appointed as Section Officer, there was no rule prescribing the condition that for initial appointment as Section Officer, a person should have been three years of previous experience. In the absence of such a rule it cannot be said that the initial appointment of the appellant was not made according to the rules and that the appellant's initial appointment as Section Officer on 1. 7. 1963 was only ad hoc appointment. THEre is nothing on record to indicate that the appellant's initial appointment as Section Officer was only on ad hoc basis particularly when his appointment was made in respect of a post sanctioned by the ministry and that the appellant was immediately put on probation. In as much as we come to the conclusion Section Officer on 1. 7. 1963 was not an ad hoc appointment, it necessarily follows that the appellant's service has to be reckoned from 1. 7. 1963 for the purpose of fixing seniority. If the appellant's service as Section Officer has to be reckoned from 1. 7. 1963, the appellant is admittedly senior to the first respondent in both these writ appeals and therefore, we see no infirmity in the seniority list dated 15. 3. 1983 fixing the inter se seniority of the appellant, the first respondent in these writ appeals and others. THE decisions relied on by the learned counsel for the first respondent are not helpful to the first respondent's case because they are clearly distinguishable on facts. Admittedly, in the present case, on the relevant date, viz. , 1. 7. 1963, there was o rule prescribing the service qualification and that is not the position in the decisions relied on by the learned counsel for the first respondent.