2012 (12) TMI 196 - SC - Indian Laws

Validity of Appointments - crieteria for seniority - appeal barred by limitation - appeal seeking removal of the special batch recruits being in violation of the rules - held that - Fixation of seniority in the backdrop of ad hoc initial appointment - respondents therein were neither appointed by the competent authority on the recommendations made by the Board which was constituted by the Governor of Haryana nor were they placed on probation as required under the rules and, therefore, their ad hoc period could not be counted for the purpose of fixation of seniority. Thus, emphasis was laid that when appointment is made without following the procedure prescribed under the rules, the appointees are not entitled to have the seniority fixed on the basis of the total length of service. In essence, it has been ruled that when the appointment is made de hors the rules, the appointee cannot claim seniority even if his appointment is later on regularized - there is violation of the recruitment rules, the recruitment is unsustainable. State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept. Secretary, State Of Karnataka And vs. Umadevi And Others 2006 (4) TMI 456 - SUPREME COURT , the Constitution Bench, while discussing the role of state in recruitment procedure, stated that if rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer. further, In Mehar Chand Polytechnic & Anr. vs. Anu Lamba & Ors. 2006 (8) TMI 514 - SUPREME COURT , Court observed that public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts. Thus, role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretized - all the appeals are dismissed leaving the parties to bear their respective costs.

Issues Involved:
1. Limitation of appeal before the tribunal.
2. Validity of appointments of special batch recruits.
3. Fixation of inter se seniority between regular batch and special batch recruits.
4. Application of Rule 18 for seniority determination.
5. Concept of relaxation and its applicability to special batch recruits.

Detailed Analysis:

1. Limitation of Appeal Before the Tribunal:
The tribunal addressed the issue of limitation, observing that the appeal was not barred by the provisions of the Assam Administrative Tribunals Act, 1977. It noted that the appeal concerned the fixation of inter se seniority rather than the validity of the appointments themselves. Therefore, the appeal was timely and within the permissible period.

2. Validity of Appointments of Special Batch Recruits:
The tribunal, the learned single Judge, and the Division Bench all found that the appointments of the special batch recruits were made in violation of the Assam Police Service Rules, 1966. The special recruitment process was conducted without proper adherence to the rules, particularly Rule 5(1)(c), which limits such recruitment to 5% of the total posts and only one post per year. The tribunal and the High Court concluded that the selection process was arbitrary, malafide, and discriminatory, and the appointments were not made according to the rules. However, due to the long delay in challenging the appointments and the service already rendered by the special batch recruits, their appointments were not annulled.

3. Fixation of Inter Se Seniority:
The tribunal and the High Court directed the refixation of the seniority list, placing the regular batch recruits above the special batch recruits. The learned single Judge and the Division Bench both held that the appointments of the special batch recruits were de hors the rules, and therefore, their seniority could not be fixed over the regular batch recruits who were appointed according to the rules. The High Court maintained that the seniority should be determined based on the date of appointment to the service, and since the special batch recruits were appointed in violation of the rules, they could not claim seniority over the regular batch recruits.

4. Application of Rule 18 for Seniority Determination:
Rule 18 of the Assam Police Service Rules, 1966, which deals with seniority, was scrutinized. The second proviso to Rule 18(1) allows the Governor to consider previous service and fix a deemed date of appointment for seniority purposes. However, the High Court concluded that since the appointments of the special batch recruits were made in contravention of the rules, the benefit under the second proviso to Rule 18(1) could not be extended to them. The tribunal and the High Court both rejected the application of Rule 18 in favor of the special batch recruits, emphasizing that their appointments were illegal and, thus, could not form the basis for seniority claims.

5. Concept of Relaxation and Its Applicability to Special Batch Recruits:
The argument that the rules were relaxed for the special batch recruits was also addressed. Rule 23 of the Assam Police Service Rules, 1966, allows the Governor to dispense with or relax any rule in cases of undue hardship. However, the High Court found no evidence of any decision to relax the rules for the special batch recruits. The learned single Judge and the Division Bench both held that the concept of deemed relaxation was not applicable, as there was no formal relaxation of the rules by the competent authority. Consequently, the special batch recruits could not claim any benefit from Rule 23.

Conclusion:
The Supreme Court upheld the decisions of the tribunal and the High Court, concluding that the appointments of the special batch recruits were made in violation of the rules and, therefore, their seniority had to be pushed down below the regular batch recruits. The Court emphasized the importance of adhering to recruitment rules and the role of the State as a model employer, ensuring fairness and transparency in public employment. The appeals were dismissed, and the directions for refixation of seniority were affirmed.

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