Central Administrative Tribunal - Chandigarh
Coram : Hon Ble Mrs. Shyama Dogra vs Union Of India Through Secretary on 25 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH. O.A.NO.729-CH-2009 Decided on : October 25, 2010 CORAM : HONBLE MRS. SHYAMA DOGRA, MEMBER (J) AND HONBLE MRS. PROMILLA ISSAR, MEMBER (A). Sunita Rani Jain, Lecturer in Mathematics, Department of Applied Sciences, Chandigarh College of Engineering & Technology (CCET), Diploma Wing, Sector 26, Chandigarh. Applicant By : Mr. J.R.Syal, Advocate. Versus 1. Union of India through Secretary, Ministry of Human Resource Development, Department of Higher Education, Tech. Section-II, New Delhi. 2. Union Territory, Chandigarh through Home Secretary, Chandigarh Administration. 3. Director Technical Education, Chandigarh Administration, Chandigarh. 4. Head of the Diploma Wing, Chandigarh College of Engineering & Technology, Sector 26, Chandigarh. By : Mr. Aman Chaudhary, Advocate. Respondents ORDER (ORAL)
HONBLE MRS.SHYAMA DOGRA, MEMBER (J) The applicant has filed this Original Application pleading that she was selected and appointed as Lecturer in Mathematics on adhoc basis in the Department of applied Sciences in Central Polytechnic, Chandigarh (now known as Chandigarh College of Engineering & Technology (Diploma Wing), (CCET for short), through Employment Exchange in 1991 against a clear cut vacancy, vide order dated 8.7.1991 (Annexure A-1). At that time there were no rules governing the post of Lecturer.
2. It is the case of the applicant that the rules governing the post of Lecturer were promulgated for the first time by the respondents on 16.3.1995 called Central Polytechnic Chandigarh (Group B Post) Recruitment Rules, 1995 (Annexure A-3), which came into effect on 1.4.1995. The post of Lecturer was designated as Group-B post and was to be filled up in consultation with the UPSC.
3. The applicant further states that Maninder Singh & Another working in respondent Institute filed C.W.P. No. 11155-CAT-002 claiming regularization of their adhoc service w.e.f. the date they were initially appointed. The said case was disposed of on 2.2.2009 (Annexure A-4) holding that appointment of the petitioners, though treated as ad-hoc, was in fact regular appointment and the respondents were directed to treat the petitioners as regular appointees from the date of their initial appointment. Their case was allowed as Respondents could not dispute that they possessed prescribed qualifications at the time of their initial appointment; they had been appointed after advertisement of the post on AllIndia basis; they were appointed on recommendations of Selection Committee and they continuously served the College with an unblemished record and it took 9 years for the Chandigarh Administration, UPSC and Govt. of India to finalize the rules.
4. It is further submitted that the applicant filed a representation dated 24.3.2009 (Annexure A-5), claiming the benefit of the decision in the case of Maninder Singh (supra). It was followed by reminders dated 21.4.2009 (Annexure A-6) and 29.5.2009 ((Annexure A-7). However, no action was taken on her representation. Thus, she has filed this O.A. for issuance of direction to the respondents to treat her as a regular appointee from the date she joined the Institution on adhoc basis on the recommendations of the duly constituted Selection Committee and to give consequential benefits flowing there-from as per the ante-dated regularization of the services of the applicant as was given to the petitioners in the case of Maninder Singh & Others (supra)).
5. Learned counsel for the applicant has further argued that the applicant is entitled to benefit of treating her ad-hoc service as regular service for all purposes, including seniority. He has placed reliance on the decision of the Honble supreme Court in the case of 2000(3) RSJ SC 16 titled M. K. Shanmungam & Ors. Vs. Union of India & Others. In that case it was held that in case promotions are made on an ad-hoc basis and are regularized subsequently, the adhoc service would count for seniority. Reliance is also placed on Sports Authority of India & Another s. Adrash Mehta & Another, 2004 (4) RSJ, 294 (DB).
6. The respondents have filed reply to the Original Application. They submit that in the initial appointment order of the applicant, there was a condition that it shall not bestow on her any claim for regular appointment and her services can be terminated without assigning any reason. Her case is different from the one relied upon by her inasmuch as she has been regularly selected only in the year 1998 through UPSC and benefit of adhoc service has already been granted to her by protecting the pay from the initial date of her adhoc appointment. The financial benefit has been granted to her in terms of the judgments of the Honble Apex Court and High Courts. Learned counsel for the respondents has also placed reliance on the decision of Gauhati High Court in Writ Petition ) No. 1300 of 2005 tilted Shri N. Amumacha Singh & Another Vs. The State of Manipur & Another, decided on 29.9.2008 in which it was held that the adhoc service counts towards qualifying service for the purpose of pension and retirement benefits and not for any other purpose.
7. The applicant has filed a rejoinder to rebut the contentions made by respondents in their reply.
8. The applicant has also filed written submissions. It is submitted that vide order dated 9.2.2001 in O.A.No. 890-CH-1992 titled Mrs. Sanjana Arora Vs. Union of India & Others, this Tribunal has quashed the order of appointment of the present applicant herein by giving benefit to Mrs. Sanjana Arora against which applicant filed R.A.No. 54 of 2001 in O.A.No.,890-Ch-92 which was disposed of on 22.5.2001. It was mentioned by the Bench that in case some adverse order is passed against the applicant by the respondents, even by way of re-fixation of pay, she will have a fresh cause of action to seek remedy from an appropriate forum. She has not received any order till date. However, it is claimed that now respondents may pass some order and record relating to the case may be summoned.
9. We have heard the learned counsel for the parties and perused the material on the file.
10. It is not in dispute that the applicant was appointed on adhoc basis in 1991 vide order date 8.7.1991 (Annexure A-1) with the clear stipulation that her adhoc appointment shall not bestow on her a claim for regular appointment. Admittedly, it was localized selection through the employment exchange only and there were no recruitment rules at that time. When the rules were framed, obviously the post had to be filled up as per rules through the UPSC. Regular selection was carried out on All India basis in which the applicant also participated and was selected in 1998. Her initial selection and appointment on adhoc basis cannot be termed as having attributes or characteristics of a regular selection, as recognized in the case of Maninder Singh & Another (supra) benefit of which is sought by the applicant. The facts are clearly distinguishable and the applicant cannot be extended any benefit of the decision aforesaid. The applicants ad-hoc appointment was merely a stop-gap arrangement and due selection process was not followed and therefore the ad-hoc period cannot be counted as regular service.
11. The law on counting of adhoc service for seniority after one is appointed on regular basis or regularized is well settled by now and some of these cases have been cited by the learned counsel for the respondents. In Chambel Singh Vs. State of Haryana & Another, 1995 (1) RSJ, 383, it was held that adhoc service per se cannot be counted to determine an appointees seniority in the cadre. In V.K. Chhibbe vs. State of Punjab & Another, 1995 (1) RSJ, Page 395, it was held that a person appointed on adhoc basis without following the due procedure prescribed under the rules cannot claim the benefit of such service for the purpose of determination of seniority and the mere fact that the department has wrongly granted the benefit to some employee, would not entitle him to claim this benefit in violation of the rules and law. Honble Supreme Court of India in V. Sreenivasa Reddy & Others Vs. Govt. of A.P. & Others, 1995(1) RSJ, Page 179, has held that temporary or adhoc or fortuitous appointment etc. is not an appointment in accordance with the Rules and temporary service cannot be counted towards seniority. To the same effect are decision of the Apex Court in Excise Commissioner, Karnataka and Another v. Sreekanta, AIR 1993 SC 1564; decision of the Honble Punjab and Haryana High Court in Rajinder Singh V. State of Haryana & Others, 1996 (4) RSJ, 715; decision of the Apex Court in Santosh Kumar & Others Vs. G.R. Chawla & Others, (2003) 10 SCC 513; State of Punjab and Others Vs. Gurdeep Kumar Uppal and Others, (2003) 11 SCC 732 C.A.No.3620 of 2009 (arising out of SLP ) No. 2848 of 2006) titled State of Rajasthan & Others Vs. Jagdish Narain Chaturvedi, decided on 8.5.2009 in which it was held that adhoc employee has no right to the post and adhoc appointment cannot be counted for the purpose of seniority. The issue raised in this case is altogether different than the one raised by the applicant in the written submissions. That issue cannot be raised in this Original Application.
12. Mr. Aman Chaudhary, Learned counsel for the respondents stressed that since the initial appointment of the applicant on ad-hoc basis for which she is claiming seniority has been declared as illegal in O.A. No. 890-CH-1992 Sanjana Arora Vs. Union of India & Others, decided on 8.2.2001, she is not entitled to any relief. We have perused the judgment. In that case applicant Sanjana Arora had challenged appointment of the present applicant namely Sunita Rani Jain. This Bench held that action of the respondents in non-consideration of the case of the applicant (Sanjana Arora) for up-gradation on the basis of seniority and appointing Respondent No. 6 even when she was much junior to the applicant to the post of Lecturer, has to be declared as illegal. The applicant herein filed R.A.No. 54 of 2001 which was also dismissed on 22.5.2001. Thus, she is seeking benefit of a service towards seniority which was declared as illegal. Thus, even otherwise, she cannot be granted benefit of seniority for the service rendered on ad-hoc basis which was declared as illegal.
13. Having regard to the law laid down by the courts of law on the question of counting of adhoc service towards seniority as discussed above and facts of the present case, we are of the view that considering the nature of appointment of applicant on adhoc basis on localized basis, till she was appointed through UPSC by way of selection on All India basis, cannot be counted towards seniority. The Original Application is, therefore found to be devoid of any merit and is dismissed. No costs.
(PROMILLA ISSAR) (SHYAMA DOGRA) MEMBER (A) MEMBER (J) Place: Chandigarh. Dated: October 25, 2010 HC* - 7 - O.A.No. 729-CH-2009