Delhi High Court
Sh. S.C. Sharma And Ors., Smt. Asha ... vs Union Of India (Uoi) And Ors. on 7 March, 2002
Equivalent citations: 2002(64)DRJ361
Author: A.K. Sikri
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. The facts of all the three petitions are substantially the same. They involve common question of law. They were heard together and it is proposed to dispose of these petitions by this common judgment.
CWP No. 6789/2000 was treated as the leading case and the counsel for the parties made their submissions with reference to the record of this case. It would be therefore appropriate to narrate the facts of this petition for understanding the controversy and appreciate the respective points of view of the parties.
2. The petitioners in this petition feel aggrieved by judgment dated 9th November, 2000 passed by the learned Tribunal in OA No. 1407/2000. These petitioners and private respondent, namely, respondent No. 3 are all working as Scenographer Gr. C on long term basis. The respondent No. 3 is senior to the petitioners. Next promotion is to the post of Stenographer Gr. 'B'&'A'. It may be mentioned that the service of the petitioner and the respondent No. 3 comprises of Grades 'D', 'C', 'B' and 'A' in ascending order of hierarchy. Later 'B'&'A' were merged and termed 'merged A&B' Grades. Next promotion is to the merged 'A&B'. It is governed by Central Secretariat Stenographers Services(CSSS) Rules, 1969. As per these Rules promotion to the grade of merged Gr. A&B in CSSS is made after 8 years of completed services. Rule 2(C) of CSSS Rules defines approved services in the following manner:
"2(c)-"approved service" in relation to any Grade means the period or periods of service in that Grade rendered after selection, according to prescribed procedure for long term appointment to the Grade, and includes any period or periods during which an officer would have held a duty post in that Grade but for his being on leave or otherwise not being available for holding such post."
3. While it is not in dispute that the petitioners were junior to the respondent No. 3, it is also not in dispute that in cadre of Grade C, the petitioners completed 8 years of approved service in the year 1995 as they were promoted as Gr. C on 30th January, 1987 whereas the respondent No. 3 was promoted on 30th June, 2000. Between the years 1995 and 2000 the petitioners were promoted to merged A&B Grade on adhoc basis from time to time. The respondent No. 3 though senior was not given promotion even on adhoc basis as he had not completed 8 years of approved service at that time. Since the appointment was only on adhoc basis and in the year 2000 the respondent No. 3 completed 8 years of approved services, while passing orders of adhoc promotion, keeping in view the seniority of the respondent No. 3 and the fact that he had become eligible for promotion to merged A&B grade on completion of 8 years of approved service, the respondent No. 3 was given promotion on adhoc basis to replace the petitioners. At this juncture, the petitioners filed OA No. 1407/2000 with the following prayers:
1. permit the applicants to file detailed particulars to supplement this Original Application, since the time to make the OA available was less than 24 hours, and
2. Call for relevant record, and
3. Declare and order that applicants' seniority as Steno Grade 'C' in Central Secretariat Stenographers Service shall count since the date of appointment/promotion to that Grade on long-term basis effective 30.1.1987, since when they counted their 'Approved Service' in that Grade for promotion to higher Grades, and
4. Declare and order that the applicants' promotion in the Grade of Stenos(merged A&B) since 1995 shall be treated as regular, instead of as 'adhoc' and
5. Further, declare and order that the applicants shall not be disturbed from their present posts of Stenos(merged A&B) Grade, except by those who would/could have been promoted to those posts on regular/adhoc basis (when those posts/vacancies first arose) in preference to the applicants, after satisfying the eligibility conditions on those dates when the posts/vacancies arose or the applicants were promoted thereto, and
6. Grant any other relief.
4. Before the learned Tribunal, the case of the petitioners was that there was practically no distinction between the long term promotion/appointment and the promotion on regular basis and indeed such a distinction which was made earlier was done away with by Notification dated 21st June, 1995 issued by the official respondents. Therefore in 1995, when the petitioners were promoted to merged A&B Gr. Stenographers it was a regular promotion though labelled as adhoc. They were now sought to be replaced by persons who were in fact juniors to the petitioners which was impermissible in law. It was argued, in the alternative, that an adhoc employee cannot replace another adhoc employee ant they could be replaced only by regular employees.
5. The learned Tribunal dismissed the OA on two counts. First, it held that the petitioners had no cause of action to file the OA as they were neither served with the notice of reversion nor an order of reversion and in the absence of any such order of reversion, no cause of action had arisen for filing the OA. Secondly, the petitioners in any case had no merit in their OA. It proceeded to decide the OA on merits as the matter was argued at length. The learned Tribunal found that the claim of the petitioners that their appointment on long term basis should be counted from 30th January, 1987 was not tenable inasmuch as seniority list were to be published right from 1992 till it was updated in 2000 when their seniority was fixed on the basis of their regular promotion/appointment in Grade 'C'. They were placed in the select list in 1989 and they never made any grievance about their position in the seniority list earlier and they were raising this objection only in the OA. They also could not justify their claim that they were senior to others who may replace them. The learned Tribunal, therefore, came to the conclusion that their claim was not only barred by limitation, having accepted the position in their seniority list published from 1992, it was also hit by the principle of estoppel or acquiencence. The learned Tribunal also rejected the contention of the petitioners to the effect that adhoc appointee cannot be replaced by another adhoc appointee, relying upon its earlier judgment dated 3rd April, 2000 in earlier OA No. 2398/99 in the case of Sh. N.K. Oudeja v. Union of India wherein the learned Tribunal had held :
"It is no doubt, true that normally the Department cannot replace him by another adhoc employee. It must be noted that in the present case the applicants was promoted as Senior Assistants were not found eligible for promotion on account of their not fulfillling the prescribed minimum length of approved service. As it is now stated in the reply that the seniors to the applicant were found eligible in July, 1999 for promotion, the applicant along with others had to be necessarily reverted."
6. The learned Tribunal, therefore, observed that since the respondent No. 3 had now completed 8 years of service and was senior to the petitioners that he had become entitled to be promoted on adhoc basis to the merged A&B Gr. and the applicants were liable to be reverted to give way to their seniors in service.
Challenging the aforesaid decision of the learned Tribunal, Mr. G.K. Aggarwal learned counsel appearing for the petitioners canvassed before us the following propositions:
1. Even if the private respondents were seniors to the petitioners, since the petitioners completed the approved service earlier than those respondents, they became eligible for promotion to merged A&B Gr. of Stenographers earlier in point of time, and therefore, in the eligibility list for promotion they should be ranked senior to the private respondents who acquired the eligibility conditions later in point of time.
2. Unless an employee became eligible for promotion he could not find place in the seniority list inasmuch as as per Regulation 3 of the Central Secretariat Service (Preparation of Common Seniority List) Regulations, 1970 framed by the Central Government under Rule 23 readwith Rule 2(h) of CSS Rules, 1962 the common seniority list was to be prepared on the basis of eligibility. This Regulation, on which heavy reliance was placed, reads as under:
" 3 PREPARATION OF THE COMMON SENIORITY LIST :
(1) A common seniority list of officers of the Assistants' grade of all Cadres, who have rendered not less than eight years approved service in the grade shall be prepared as on the 1st January of every year.
For this purpose the Government shall obtain from the Cadre authority the names of all such officers of the Assistants' grade included in their respective Cadres.
(2) The names of the officers referred to in Sub-regulation (1) shall be arranged in a single list in the following order, namely:-
(a) Officers appointed substantively to the Assistants' grade with effect from any date before the appointed day or on the appointed day shall be arranged in the order of seniority in that grade as on the appointed day; and
(b) Other officers appointed substantively to the Assistants' grade shall be arranged in the following manner, namely:-
Subject to their inter se seniority in their respective Cadres being maintained, the names of those officers appointed to the grade as direct recruits on the basis of competitive examination shall be arranged according to their order of merit in the competitive examination, persons appointed from an earlier examination being placed above those appointed from later examination. In this combined list of direct recruits, the names of persons substantively appointed to the grade from the select lists for the grade shall be arranged by placing each such officer immediately above the seniormost direct recruit who is junior to him in his Cadre.
(c) Select List officers not yet confirmed in the Assistants' grade shall be arranged according to the length of their approved service in that grade."
7. It may be mentioned at this stage that the petitioners in CWP No. 1234/2001 and CWP No. 326/2001 are working as Assistants and the next promotion is to the post of Section Officers for which again, 8 years approved service as Assistants is required for promotion to the post of Section Officer. The petitioners are junior to private respondents as Assistants but completed 8 years approved service as Assistants before the private respondents, and therefore, acquired the eligibility prior in point of time. They were also promoted as Section Officers on adhoc basis and sought to be replaced by the private respondents when the private respondents acquired the eligibility for the post of Section Officer on completing the requisite approved service.
8. It is for this reason, we have mentioned that the question of law which is to be decided is common in all these petitions.
9. Before proceedings to consider the submissions made by Mr. G.K. Aggarwal, it would be appropriate to take stock of the arguments advanced by the learned counsel for the respondents. Mr. A.K. Bhardwaj, appearing for the official respondents defended the impugned judgment by adopting the reasoning given by the learned Tribunal in these judgments. His further submission was that the petitioners were trying to enlarge the scope of the writ petitions inasmuch as prayer in the OAs would clearly suggest that the main grievance of the petitioners was their replacement by the private respondents who were seniors to the petitioners and had become eligible for promotional posts. He submitted that since the promotion was made only on adhoc basis without following the rules and when the senior persons were available they were to be given the preference. His further submission was that for this purpose junior persons like the petitioners who were earlier given adhoc promotions could be reverted to give way to the seniors who had become eligible. He also submitted that even the learned counsel for the petitioners conceded this position. His submission was that the further arguments of the petitioners' counsel about eligibility list, acquiesence of eligibility criteria by the petitioners earlier in point of time etc., were not permissible as this was not the subject matter of the OA or the writ petition and as the promotions were not going to be made on regular basis such a question did not arise in these petitions. He further submitted that regular promotions are made on the basis of combined seniority list by the UPSC. Since this process takes time, in the meantime when post becomes available in a particular department/Ministry adhoc promotion is given to the senior most eligible person in that department/Ministry without taking into consideration the combined seniority list and such an adhoc appointment given to the petitioners would not confer any right upon the petitioners which was not given after following the rules and therefore, it could not be treated as promotion on regular basis but was only a stop-gap arrangement.
10. Mr. B.T. Kaul, learned counsel appearing for the private respondents while adopting the aforesaid submissions of Mr. Bhardwaj, additionally argued that the seniority list was first prepared in the year 1992. In that seniority list, the name of the respondent No. 3 was shown at S.No. 96 whereas the petitioners were at S.No. 107 and below. It is because of this reason that in the seniority list published as on 1st January, 1999 the inter-se seniority of the respondent No. 3 vis-a-vis the petitioners was maintained. The seniority list of 1999 simply reiterated the position which was prevailing for number of years since 1992 and therefore, the petitioners never challenged their seniority vis-a-vis the respondent No. 3 earlier, and therefore, such a settled position of seniority should not be allowed to be unsettled after a long period. He, thus, submitted that the learned Tribunal was right in rejecting the OA of the petitioners on the ground of estoppel and acquiescence as well.
11. After hearing the parties at length, we are inclined to agree with the submissions of the learned counsel for the respondents to the effect that what is argued by the petitioners in this case was not the scope of OA or the present writ petitions. The perusal of the OA would clearly indicated that the petitioners had rushed to the learned Tribunal after they had faced the threat of reversion from the promoted posts to which posts they were promoted on adhoc basis, to the substantive post being held by them inasmuch as their seniors had become eligible for promotion as per the Rules and the official respondents had taken action to give them the promotions on adhoc basis. The main contention of the petitioners before the learned Tribunal, as already noted above, was that their appointment to the promoted post was on regular basis and they could not be reverted and in the alternative, they had submitted that they could be replaced only by regular incumbents and not appointing other person on adhoc basis. These contentions were rightly rejected by the learned Tribunal. From the very nature of the promotion orders, it becomes crystal clear that the promotion was only on adhoc basis as a stop-gap arrangement inasmuch as promotion on regular basis could be by UPSC following the combined seniority list of all the employees in their category in the CSS instead the petitioners were promoted in their department/particular Ministry without following the Rules and keeping in view their seniority and eligibility at the relevant time since other senior persons, namely, the private respondents were not eligible. Therefore, the petitioners were not given the promotion on regular basis. They are now sought to be replaced by those seniors who have in the meantime become eligible. Since the promotion of the private respondents is also on adhoc basis and private respondents being senior and now eligible, have been given preference for adhoc promotion. The learned Tribunal was, therefore, right in rejecting this contention of the petitioners as well. In fact Mr. G.K. Aggarwal learned counsel for the petitioners at the time of arguments, even conceded that the persons senior to the petitioners could replace them who were the juniors for the purpose of adhoc promotion. This position having not been disputed, no further discussion is required on this aspect.
12. However, the main grievance projected by the learned counsel for the petitioners was that as the petitioners, who may be junior to the private respondents in a particular cadre, became eligible for further promotion earlier than the private respondents, they should be treated as senior in the eligibility list for promotion to the higher post of merged 'A&B' Gr. or SOs as the case may be. This issue was not raised in OA. It does not appear to have been argued as well as there is no discussion of this kind in the impugned judgment. Only in OA out of which CWP No. 1234/2001 has arisen, it appears, this contention was raised which was rejected on the ground that the question was of adhoc promotion and not regular promotions against regular vacancies. This is what is observed by the learned Tribunal in para 9 of judgment dated 20th February, 2001 rendered in OA No. 1071/2000 out of which CWP No. 1234/2001 arises:
"The next ground taken is that as per DP & T's OM dated 10.4.89, backlog of vacancies must be filled yearwise and only those who were eligible on dates of occurrence of vacancies could be considered. Therefore, as in 1997, so also as of date, respondents 3 to 13 are not eligible to be promoted in vacancies occupied by respondents. This OM is applicable in regard to regular promotions made against regular vacancies on the recommendations of a regularly constituted DPC under the aegis of the Cadre Controlling Authority. In the case before us, the promotions are not regular promotions, but adhoc promotions made as a stop gap arrangement till regular promotions are made by a regularly constituted DPC under the aegis of the Cadre Controlling Authority. Hence this ground fails."
13. We fully agree with the reasoning of the learned Tribunal. The promotions made as stop-gap arrangement, as already pointed out above. As and when promotions are made on regular basis and backlog of vacancies is not filled year-wise and in conformity with the DP&T's OM dated 10th April, 1989 it would always be open for the petitioners to challenge such an action of the respondents. The question as to whether the eligibility list for the purpose of promotion is to be prepared on the basis of the date of completing the approved service is not required to be gone into in these proceedings as this issue neither ripened nor was the subject matter of OA. Therefore, it is not necessary to express any opinion at this stage on this issue. As and when the promotions are made on regular basis and the petitioner feel aggrieved against the methodology and procedure adopted by the official respondents in ignoring their claims, they would be at liberty to approach the learned Tribunal by filing appropriate OA questioning such an action of the respondents which would be dealt with by the learned Tribunal on its own merit. This liberty is granted. It is stated at the cost of repetition that in the present case, cause of action related to the threatened reversion of the petitioners from the promoted posts to which they were promoted on adhoc basis on their seniors becoming eligible for promotion and when they were given promotion on adhoc basis.
14. The consequence of the aforesaid discussion is that subject to grant of liberty as aforementioned, these writ petitions fail and are hereby dismissed.
15. There shall, however, be no order as to costs.