Ch. Narayana Rao vs Union Of India & Ors

Ch. Narayana Rao ....Appellant

Versus

Union of India & Ors. ....Respondents

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. The continual riven for seniority with regard to ad-hoc

service rendered by the Appellant from the year 1981 till

his regularisation in the year 1992 is required to be

adjudicated in this Appeal by this Court. Further, we are

called upon to consider whether the Appellant can be

treated as Regular Stenographer (OG - Ordinary Grade) from

the year 1981 itself.

3. This appeal arises from the judgment and order dated

19.02.2007 passed by Division Bench of the High Court of

Judicature, Chhattisgarh at Bilaspur, in Appellant's Writ

Petition No. 388 of 2002, wherein and whereunder he had C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

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challenged the order of the Central Administrative Tribunal,

Principal Bench, Delhi, (hereinafter shall be referred to as

'Tribunal') passed in O.A. No. 413 of 1999 dated 02.07.2001.

By the order of the Tribunal, the Appellant's Original

Application filed by him claiming seniority for the period he

had worked on ad-hoc basis till his regularisation was

rejected. The order of the Tribunal has been affirmed by the

Division Bench of the High Court by dismissing the

Appellant's Writ Petition vide the impugned judgment. Hence,

this appeal.

4. Factual matrix of the case lies in narrow compass:-

Appellant was appointed on 26.11.1981 on the post of

Stenographer (OG). His appointment was against a temporary

vacancy of stenographer, with the following rider:

"His appointment is purely on an ad-hoc and temporary basis and his services may be terminated any time without assigning any reasons."

5. Thus, his letter of appointment clearly

stipulated that it was not only ad-hoc but temporary too,

terminable at any time without assigning any reasons.

However, he continued in service, but after few years, an

apprehension arose in the mind of the Appellant and other

similarly situated stenographers that their services may be terminated. Thus,

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the Appellant and others were constrained to approach the

Jabalpur Bench of the Tribunal by filing Original

Application, claiming that the Respondent be restrained from

terminating their services and they be regularised. Tribunal

vide its order dated 23.10.1989 directed that the services of

the Appellant and other similarly situated stenographers, be

not terminated, instead they be regularised subject to

qualifying requisite test. The operative part of the order of

the Tribunal is reproduced hereinbelow:-

"The Government may examine and review the position as whether it is possible to regularize the services of these petitioners by relaxing the rule requiring their recruitment through the Staff Selection Commission. If it is not considered feasible by the Government, then we direct that the petitioners should be continued in service and the respondents are restrained from terminating their services but two opportunities be given to the petitioners to attain proficiency in Stenography and clear the test with the requisite standard of speed in shorthand etc. before their regularisation.

In other words their appointments as stenographers will be treated as officiating appointment although not confirmed but also not ad-hoc pending such a regularisation."

6. It is clear from a reading of the aforesaid direction

that the Respondents were restrained from terminating the

services of the Appellant and two opportunities were directed to be given to the Appellant to clear proficiency

test so

C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

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that he becomes entitled for regularisation. On the strength

of the said order of Tribunal, his services were not

terminated and he continued in employment with the

Respondents.

7. He, thereafter, qualified the proficiency test in

Stenography conducted by the Staff Selection Commission in

1992. Thus, he was regularised with effect from 12.04.1992,

the date on which he was declared successful in the test. 50%

of his past service was also ordered to be counted for the

purpose of computation of pensionary benefits.

8. Aggrieved, Appellant submitted his representation with

the Chief Commissioner of Income Tax, Bhopal on 06.08.1993

praying for regularisation of service from the date of his

initial appointment and treating his full ad-hoc service as

qualifying service for the purpose of pensionary benefits.

Since, no fruitful results came forth on the Appellant's

representation, he along with another employee, similarly

situated, was constrained to file another O.A. No. 413 of

1999 before the Principal Bench of the Tribunal at Delhi

which came to be allowed on 11.10.1999. It appears that while

the said O.A. was heard, the counsel for Respondents had remained absent. Thus, the order came to be passed ex-parte.

9. The Department, therefore, filed M.A. No. 593 of

2000

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in the aforesaid O.A. before the same bench of the Tribunal

praying for the grant of opportunity to them to contest the

proceedings and for recall of the order dated 11.10.1999. The

said M.A. was allowed by the Tribunal on 04.01.2001 and the

parties were directed to appear before the Tribunal on

07.03.2001 for re-hearing of the Appellant's Original

Application. That is how the matter was heard again by the

Tribunal. The Tribunal passed its order on 02.07.2001,

dismissing the Appellant's Original Application. It was this

order of the Tribunal which was challenged by the Appellant

before the Division Bench of the High Court by filing a Writ

Petition, but that too met with the fate of dismissal.

10. The contention of the respondents from the very

beginning had been that the Appellant was one among several

persons who were appointed as stenographers (OG) on purely

temporary and ad-hoc basis. However, they were given their

regular appointment as stenographers (OG) in the department

only from the date of passing the qualifying test with

approval by the Staff Selection Commission. All those who had

been appointed alongwith Appellant were treated alike and were given their regular appointment only from the date of

their passing the requisite test. Thus, no case of

discrimination was made out by the Appellant as likes were

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treated alike.

11. They have also contended that the observations made by

Jabalpur Bench of the Tribunal in the Appellant's first O.A.,

could at best be treated as obiter as the question before the

Bench was only with regard to grant of injunction in favour

of the Appellant so that the services could not be

terminated. Thus, any observations made by the said Bench

would not have a binding effect. Even otherwise, it has been

contended that the first order of the Tribunal clearly

stipulated that at the first instance the Respondents were

restrained from terminating the services of the Appellant and

the Appellant was given opportunity to appear in the test

twice to qualify for the appointment on regular basis. It has

also been contended that passing of the requisite examination

was condition precedent for appointment on regular basis as

per the Income Tax Department (Group C Recruitment Rules,

1990), to be approved by the Staff Selection Commission and

there could not have been any deviation therefrom. Unless the

Appellant had successfully cleared the said test he could not

have been granted the benefits sought by him. As soon as he cleared the said test, he was regularised from the date of

his passing the examination, that is on 12.04.1992. In other

words, the Respondents have contended that the Appellant

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alone cannot be extended the benefit of regularisation of

counting his service from the date of his initial

appointment, which was not only temporary but was ad-hoc

also, as the same may amount to hostile discrimination with

other Stenographers who are similarly situated. They have,

therefore, contended that the Tribunal and the High Court

have taken a correct legal view of the matter, which calls

for no interference and appeal deserves to be dismissed.

12. We have, accordingly, heard Mr. Sushil Kumar Jain and

Mr. Puneet Jain, advocates for the appellant and Mr. B.S.

Chahar, Senior Advocate with Mrs. B. Sunita Rao and Mr. Mohd.

Mannan for respondents at length and perused the records.

13. The said question, as has been projected above, should

not detain us long as the same has been considered in the

matter of Direct Recruit Class II Engineering Officers'

Association Vs. State of Maharashtra and Others reported in

(1990) 2 SCC 715 by a Constitution Bench of this Court. After

eloquent discussion with regard to inter se seniority of

direct recruits and promotees, the same has been summed up in

para 47. The relevant portion of the said para applicable to the facts of this Appeal is reproduced hereinbelow:-

"47. To sum up, we hold that:-

(A)Once an incumbent is appointed to a C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

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post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that 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.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted."

14. On the strength of the aforesaid Constitution Bench

Judgment, Mr. Sushil Kumar Jain strenuously submitted before

us that clause (B) thereof should be invoked for the purpose

of grant of seniority to the Appellant.

15. We have minutely examined the same but are unable to

accept the said contention as according to us corollary of

clause (A) of para 47 of the aforesaid judgment would be

applicable to the Appellant's case. It cannot be disputed

that the initial appointment of the Appellant was only ad-hoc

and for a temporary period and was also not in accordance with the Rules of 1990 as he did not appear in the requisite

test, which is conducted by Staff Selection Commission,

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before his appointment. The same was only a stop-gap

arrangement. Therefore, his officiation on such a post cannot

be taken into account for considering the seniority. Thus,

in our considered opinion neither clause (A) nor clause (B),

as reproduced hereinabove, would be applicable to the

Appellant's case and he cannot draw any advantages therefrom.

On the other hand, he would be squarely covered by the

corollary appended to clause (A).

16. This judgment of Constitution Bench in Direct

Recruit's case (supra) has been followed by three learned

Judges of this Court in the case of State of West Bengal and

others Vs. Aghore Nath Dey and Others reported in (1993) 3

SCC 371, authored by most illustrious learned Judge of this

Court - Hon'ble Mr. Justice J.S. Verma (as he then was). After considering the scope and ratio decidendi of Direct

Recruit's case (supra), it has been held in paras 24 and 25

in lucid and concise words as under:-

"24. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A).

In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, `if the initial appointment is not C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

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made by following the procedure laid down by the `rules' and the latter expression `till the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap C.A. @ S.L.P.(C)No.16355/07 ... (contd.)

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arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A)."

17. According to us, corollary appended to clause (A) of

Direct Recruit's case (supra) and the aforesaid judgment in

Aghore Nath Dey's case squarely decide the issue.

18. Reliance has also been placed by Mr. Sushil Kumar Jain

on yet another Constitution Bench Judgment of this Court

reported in (2000) 8 SCC 25 titled Rudra Kumar Sain and

Others Vs. Union of India and Ors. to distinguish the

terminology used in the case of O.P. Singla and another etc.

Vs. Union of India and Others reported in (1984) 4 SCC 450

namely, "Ad-hoc", "fortuitous" and "stop-gap". However, we

are not required to consider the same as it has already been

dealt with in Aghore Nath's case (supra) elaborately.

19. In Singla's case (supra), the question was with regard

to seniority and promotion amongst direct recruits and

promotees. The said question is not directly in issue in this

case. To the same effect is yet another earlier judgment of

this Court is reported in (1986) 2 SCC 157 titled Narender Chadha and Others Vs. Union of India and Others, which also

dealt only with the aforesaid requirement.

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20. In Narender Chadha's Case, benefit was directed to be

granted to those Appellants as they were working on the said

posts for more than 15 to 20 years, which is not the case in

the present appeal. Apart from the above, admittedly the

Appellant had not cleared the requisite

examination/proficiency test as required under the Rules of

1990, as soon as he cleared the examination/proficiency test,

he was regularised on the post. His regularisation from the

date of initial appointment was impermissible and was rightly

denied to him.

21. The view which has been taken by us hereinabove finds

favour from a recent judgment of this Court reported in

(2009) 4 SCC 170 titled, Union of India Vs. Dharam Pal & Ors.

Perusal of the said judgment shows that the cases on which we

have placed reliance have also been fully relied upon by

learned two Judges of this Court while dealing with the said

case. Succinctly, it has been held in paragraph 25 and 27 as

under :

"25. It is, however, also well settled that where the initial appointment is only ad-hoc, not according to rules and made as a stop-gap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority.

26. .... .... .... ....

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27. When an ad-hoc appointment is made, the same must be done in terms of the rules for all purposes. If the mandatory provisions of the rules had not been complied with, in terms of Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra & Ors. (1990) 2 SCC 715, the period shall not be taken into consideration for the purpose of reckoning seniority. Furthermore, it is one thing to say that an appointment is made on an ad-hoc basis but it is another thing to say that inter se seniority would be determined on the basis laid down in another rule."

22. We are, therefore, fortified in our reasoning as adopted

in the aforesaid Appeal.

23. Thus, looking to the matter from all angles, we are of the

considered view that no relief can be granted to the Appellant.

His seniority has been correctly worked out only from the date he

had passed the Stenography Test as contemplated under the Rules

approved by Staff Selection Commission.

24. Thus, the appeal being devoid of any merit and substance

is hereby dismissed but with no order to costs.

.....................

.J. [DALVEER BHANDARI] .............

.........J. [DEEPAK VERMA] New Delhi September 10, 2010