Full Judgment
U.K. Dhaon, J.
1. Heard Sri Sanjeev Shankhdhar, learned counsel for the petitioners and Sri Ajit Kumar. the learned counsel appearing on behalf of the opposite parties 2 and 3.
2. The petitioners in the instant writ petition initially prayed for Issuance of a writ in the nature of mandamus commanding the respondents to fix the pay of thepetitioners in the scale of Rs. 1,600-2.660 w.e.f. 16.11.1993, i.e. the date since when the petitioners are continuously working as Research Assistant and to make payment of arrears regarding difference of pay with all consequential benefits.
3. On 28.5.1999, the opposite parties were directed to consider and decide the representation of the petitioners dated 24.5.1999, a copy of which has been annexed as Annexure-2 to the writ petition keeping in view that the petitioners are continuously working from 16.11.1993 on the post of Research Assistant.
4. In compliance of the order passed by this Court, the opposite parties considered the representation of the petitioners dated 24.5.1999 and by the order dated 6.7.1999 the same was rejected. Thereafter, the petitioners moved application dated 11.8.1999 for amendment of the writ petition which was allowed and now a prayer for quashing of the impugned order dated 6.7.1999 passed by the opposite party No. 2. as contained in Annexure-3 to the writ petition has also been made.
5. The contention of the learned counsel for the petitioners is that they are working continuously as Research Assistant with effect from 16.11.1993 and as such they are entitled for their seniority and fixation of pay from 16.11.1993. He further submits that the services of the petitioners have been regularised with effect from 20.3.1997 as per the order dated 3.12.1997 and the opposite parties are not considering the earlier services of the petitioners for the purposes of seniority although there is no dispute that the petitioners were working from 16.11.1993. In support of his contention, the learned counsel for the petitioners has relied upon the decision of the Apex Court in Ajit Kumar Ratha v. State of Orissa and others. 1999 (9) Supreme 321, and S. L. Chandrakishore Singh v. State of Manipur and others, 1999 (8) Supreme 579.
6. The petitioners earlier also approached this Court and filed writ petition which was registered as Writ Petition No. 9048 (S/S) of 1993 in which an interim order was passed by this Court directing the opposite parties to allow the petitioners to work and pay them salary regularly. The said Interim order granted by this Court was later on confirmed by this Court by the order dated 16.2.1996 and the application for vacation of the stay order was rejected by this Court.
7. The contention of the learned counsel appearing on behalf of opposite parties is that as the services of the petitioners have been regularised with effect from 20.3.1997 consequently as per the provisions of Rule 7 of the U. P. Regularlsation of Ad Hoc Appointments (on Post within the purview of Public Service Commission) Rules. 1979, they shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules.
8. The learned counsel appearing on behalf of the petitioners submits that the Rules of 1979 are applicable to the posts which are within the purview of the Public Service Commission and the posts on which the petitioners are working are not under the purview of the Public Service Commission. He further submits that the contents of paragraph 8 of the writ petition have not been denied in the counter-affidavit in which it has been stated that the contents need no reply.
9. I have considered the arguments advanced by the learned counsel for the parties and gone through the entire record. The Rules relied upon by the learned counsel for the opposite parties are not applicable to the present case as the posts on which the petitioners are working are not under the purview of the Public Service Commission. The contents of paragraph 8 of the writ petition are uncontroverted as in the said paragraph it has been stated by the petitioners that they are workingcontinuously as Research Assistant and performing all the duties of the Research Assistant with effect from 16.11.1993 and are entitled to payment of their salary in the regular scale of pay from the said date. i.e. 16.11.1993.
10. In the cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority, shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiatlon.
11. In view of law declared by the Apex Court in S. L. Chandrakishore Singh (supra), the services rendered by the petitioners w.e.f. 16.11.1993 till their services were regularised with effect from 20.3.1997 cannot be ignored in determining their seniority. The petitioners are entitled for their seniority with effect from 16.11.1993, i.e. the date from which the petitioners are working on the post of the Research Assistant without any break.
12. In the result, the writ petition succeeds and a writ in the nature of certiorart is issued quashing the order dated 6.7.1999 passed by the respondent No. 2. a copy of which has been annexed as Annexure-3 to the writ petition and a writ in the nature of mandamus is issued directing the opposite parties to grant the seniority to the petitioners w.e.f. 16.11.1993 along with consequential benefits. The parties will bear their own costs.