MEJUM KARGA Vs. STATE OF ARUNACHAL PRADESH

JUDGEMENT

(1.) The petitioner, an Upper Division Clerk (UDC) working in the department of Rural Development, Govt. of Arunachal Pradesh, has, by way of this writ proceeding, challenged the legality and validity of the fixation of seniority of the respondent No. 3, an UDC in the same department above her. Although the petition was filed with limited grounds towards such a challenge, in due course with the appearance of the respondent No. 3 in the proceeding by way of filing counter affidavit, the petitioner has brought certain new facts in her reply affidavits filed in respect of the counter affidavit of the respondent No. 3 as well as the counter affidavit filed by the official respondents. An additional affidavit has also been filed by the respondent No. 3 to the reply affidavit of the petitioner. Amidst such pleadings, both the petitioner and the respondent No. 3 have reduced their respective facts of the case by submitting their respective list of dates with brief facts, which are reproduced below: List of dates on behalf of the petitioner 04.01.95 : The petitioner was directly appointed as UDC against vacant post temporarily w.e.f. 02.01.95 Annexure-A 26.04.95 : The respondent No. 3 was temporarily promoted to the post of UDC from LDC on officiating basis under Rule 77 of the GFR against vacant post of Jt. B.D.O.-Annexure-C 20.10.98 : Combined Seniority List of Ministerial Staff on the Head Quarter Establishment of Rural Development showing the name of the petitioner at serial No. 3 and the respondent No. 3 at Serial No. 5 of UDC-Annexiire- D 18.06.02 : As per recommendation of DPC, UDCs were regularized. The petitioner was regularized w.e.f. 02.01.95, i.e. the date of appointment. The Respondent No. 3 was regularized from 30.05.97-Annexure-E 12.09.02 : Representation of the petitioner before the Director to promote her to the post of Assistant as she is the senior most UDC eligible for promotion- Annexure-E 22.11.02 : Provisional Seniority list of UDC showing the petitioner at Serial No. 4 and the Respondent No. 3 at Serial No. 5-Annexure-G 09.05.03 : The regularization of ad hoc/ officiating promotion as UDC of respondent No. 3 vide order dated 18.06.02 was modified and regularized w.e.f. 18.06.02, i.e. w.e.f. a date earlier to her ad hoc promotion as UDC superceding the petitioner who was already serving as UDC w.e.f. 02.01.95 Annexure-H. 19.05.03. : Representation to promote the petitioner as Assistant- Annexure-I 20.05.03 : Final Seniority List of UDC showing the petitioner at Serial No. 5 as UDC w.e.f. 20.01.95 and the respondent No. 3 as UDC w.e.f. 18.06.94, i.e. from a retrospective date of her actual ad hoc promotion to UDC which is 13.04.95-Annexure-J List of dates on behalf of the respondent No.3 28.10.90 : Written and typing test for filling up the vacancies in the post of Lower Division Clerk in Rural Development Department was held. Total 139 candidates were called for written and typing test out of which only 29 candidates appeared in the typing test and 27 candidates appeared in the written test. 04.01.91 : Meeting of the Selection Committee was held and it recommended six candidates in order of merit for appointment to the post of Lower Division Clerk under Rural Development Department. The name of the Respondent No. 3 Amoti Perme figured at SI. No. 5 of the select list. (Minutes of the Selection Committee dated 04.01.91 is Anenxure-R/9, page-5 of the additional affidavit of R/3) 10.01.91: Memorandum issued by the Rural Development Department offering appointment to the post of LDC to the respondent No. 3 (Annexure-R/10, page 6 to the additional affidavit filed by R/ 3) 14.01.91 : R/3 accepted the offer of appointment dated 10.01.91. (Annexure-R/11, page 8 to the additional affidavit filed by R/3) 14.01.91 : R/3 submitted joining report and joined her duties as LDC (Annexure-R/12, page 9 to the additional affidavit filed by R/3). 14.01.91 : Formal order was passed appointing R/3 as LDC under Rural Development Department (Annexure-AIO/1, page 12 of the affidavit-in-opposition of R/ 3) 28.05.93: Writ petitioner was appointed as UDC on ad hoc basis without any process of selection from 22.07.93 to 19.08.93. She was given periodic extension from time to time vide orders dated 27.08.93 , 15.12.93, 04.03.94, 21.06.94, 05.09.94, 04.01.95, 26.04.95. The last order extending her service as UDC is dated 26.04.95 by which her ad hoc period as UDC was allowed to continue with effect from 01.04.95 till further orders. (Annexure-AIO/4 colly, page 23 to 25 to the affidavit-in- opposition of R/3) 14.01.94 : R/3 completed three years of qualifying service as LDC on 14.01.94 and under the provisions of Arunachal Pradesh Secretariat Subordinate Service Rules, 1989, became eligible for promotion to the post of Upper Division Clerk. 13.04.95 : Order appointing R/3 as UDC on officiating basis with effect from 18.06.94. The order was passed in terms of the provisions under Rule 77 of GFR. (Annexure-AIO/3, page 22 of affidavit-in-opposition of R/3) 28.05.02: Office Memorandum circulating provisional seniority list ofUDC/ LDC in the establishment of Rural Development Department. The name of R/3 was shown as SI. No. 7. In this list, the name of the Writ Petitioner did not appear. (Annexure-AIO/1 colly, page 14 to the affidavit-in-opposition filedbyR/3) 18.06.02: Order of Director, Rural Development Department regularizing the ad hoc/officiating promotion of respondent No. 3 to the post of UDC with effect from 30.05.97 and that of writ petitioner with effect from 21.01.95 pursuant to the recommendation of DPC. (Annexure-AIO/5, page 26 to the affidavit-in-opposition of R/3) 25.06.02 : Representation of R/3 for regularizing her promotion to the post of UDC with effect from 18.06.94 (i.e. the date on which the order of appointing R/3 as UDC on officiating basis was issued) and against regularizing her promotion as UDC with effect from 30.05.97. (Annexure-AIO/5, page 26 to the affidavit-in-opposition) 25.06.02: Representation of R/3 for regularizing her promotion to the post of UDC with effect from 18.06.94 (i.e. the date on which the order of appointing R/3 as UDC on officiating basis was issued) and against regularizing her promotion as UDC with effect from 30.05.97. (Annexure-AIO/6 colly, page 27 of affidavit-in-opposition by R/3). 08.07.02 : Another representation of R/3 for the same purpose. (Annexure-AIO/6 colly, page 28 of affidavit-in-opposition by R/3. 07.10.02: Order of Director, Rural Development Department regularizing the promotion of R/ 3 as UDC with effect from 15.02.96. This order was in partial modification of earlier order dated 18.06.02. (Annexure-AIO/7, page 29 of affidavit-in-opposition by R/3) 07.10.02: Order of Director, Rural Development Department regularizing the services of the writ petitioner as UDC with effect from 02.01.95. This order was in partial modification of the earlier order dated 18.06.02. The order was passed in terms of the report submitted by Review Committee held on 16.09.2002. (Annexure-AIO/8, page 30 of affidavit-in-opposition by R/3). 22.11.02 : Office Memorandum publishing seniority list of UDC/LDC/ Assistant of Rural Development Department was issued. In the seniority list, the date of appointment of R/3 as IJDC was shown as 15.02.96 and that of Writ petitioner was shown as 02.01.95. (Annexure-G/1, page 22 (24) to the writ petition) Another representation submitted by R/3 seeking correction of her dare for promotion as UDC 09.05.03 : Order of Director, Rural Development Department showing the date of regularization of promotion of R/3 as UDC with effect from 18.06.94. (Annexure-H to the writ petition, page 26) (impugned) 20.05.03 : Final seniority list of UDC and LDC issued by Director, Rural Development Department. In this seniority list, the date of appointment of R/3 as UDC was shown as 18.06.94 and that of writ petitioner as 02.01.95. The name of R/3 was shown as SI. No. 4 and that of writ petitioner as SI. No. 5. (Annexure-J/1, page 30(32) to the writ petition) (impugned)

(2.) On perusal of the list of dates submitted by the contesting parties, it will be seen that as against the appointment of the petitioner as UDC on purely on ad hoc and temporary basis, the respondent No. 3 was appointed as LDC pursuant to a regular selection conducted as per the recruitment rules, i.e. the Arunachal Pradesh Secretariat Subordinate Service Rules, 1989. In fact, the official respondents in their counter affidavit have annexed the minutes of the meeting of the DPC held on 04.01.91 to select the candidates for the post of LDC. Altogether 139 candidates were called for written test and type test out of which only 29 candidates appeared in the typing test and 27 candidates appeared in the written test held on 28.10.90. Pursuant to such a selection conducted by the official respondents, the respondent No. 3 whose title at that time was "Jerang" and later on changed to "Perme" after marriage was placed at serial No. 5 in the select list. The merit list contained altogether 6 candidates for appointment as LDC.

(3.) Pursuant to such selection of the respondent No. 3, she was appointed as LDC after offering her appointment as such and passing the aforementioned order of appointment on 14.01.91. The respondent No. 3 joined the post on 14.01.91.