Karnataka High Court
The Union Of India By Its Secretary vs Sri Raghavendra R on 23 April, 2014
Bench: K.L.Manjunath, Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 23rd DAY OF APRIL 2014
BEFORE
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.45466 OF 2013(S-CAT)
BETWEEN:
1. The Union of India
By its Secretary
Ministry of Civil Aviation
Rajeev Gandhi Bhavan
New Delhi - 110 003.
2. The Director General of Civil Aviation
Technical Centre, Opp:Safdarjung Airport
New Delhi - 110 003.
3. The Deputy Director General of Civil Aviation
Civil Aviation Department, Technical Block,
4th Floor, HAL Airport,
Bangalore - 560 017. ...PETITIONERS
(By Sri Y.Hariprasad, CGC)
2
AND:
Sri Raghavendra R
Aged about 53 years
S/o Sri M.Ramaswamy
W/as Group 'C' (Formerly Peon)
Civil Aviation Department
Technical Block, 4th Floor, HAL Airport
Bangalore - 560 017. ...RESPONDENT
(By Sri S.Sugumaran, Advocate)
*****
This Writ Petition is filed under Article 226 and 227
of the Constitution of India praying to quash the order
dated 14.2.2013 in OA.No.325/2012 vide Annexure-A
passed by the Central Administrative Tribunal, Bangalore.
This Writ Petition having been heard and reserved
for judgment on 15.04.2014 coming on this day, Ravi
Malimath J., pronounced the following:-
ORDER
The case of the respondent is that he entered the services of the petitioner through the employment exchange as a peon on 10-1-1980. He was appointed on temporary basis, but subsequently changed to ad-hoc basis on the instructions issued from the Regional Director. However, he continued to work without any break. With 3 effect from 1-7-1985 he was appointed to a substantive post of a peon. The petitioners granted the respondent the first and second financial upgradation under MACP scheme. However, the services rendered on temporary/ ad-hoc basis with effect from 10-1-1980 to 30-6-1985 was not taken into account for the purposes of granting MACP benefit. Therefore he made a representation to the petitioners to grant him the said benefit. The petitioners informed him that in terms of the existing guidelines the ad-hoc services rendered is not counted for grant of benefit under ACP/MACP scheme. Therefore he filed the instant application before the tribunal seeking to quash the said endorsement declining to take into account the period spent by him on ad-hoc basis and further to direct them to reckon the said period for purposes of granting benefit under MACP scheme. The tribunal by the impugned order allowed the application. It declared that the respondent be considered as being regularly appointed and to treat his appointment as ad-hoc appointment with effect from 4 1-1-1980 and count it for the purposes of ACP/MACP. Aggrieved by the same, the respondent Union have filed the present petition.
2. The learned counsel for the petitioners contends that the impugned order is bad in law and liable to be set aside. That the appointment of the respondent is purely on an ad-hoc basis and liable to be terminated at any point of time without assigning any reasons. The memorandum of appointment is dated 7-1-1980 wherein they have culled out various conditions of appointment. Therefore the period spent by him from the date of work rendered by him on an ad-hoc basis cannot be considered for grant of subsequent reliefs. He contends that the tribunal committed an error in declaring that the respondent be deemed to be appointed on a regular basis from the date he was appointed on an ad-hoc basis. The finding of the tribunal is therefore perverse. He further contends that his contentions are well covered by the 5 Judgment of the Hon'ble Supreme court in the case of HARYANA POWER GENERATION CORPORATION LIMITED AND OTHERS v. HARKESH CHAND AND OTHERS reported in 2013 AIR SCW 347.
3. On the other hand, the learned counsel for the respondent defends the impugned order. He contends that there is no error committed by the tribunal that calls for any interference. That the High Court of Madras has held that the employment on ad-hoc basis should be considered for all subsequent reliefs. He further pleads that the Judgment relied upon by the learned counsel for the petitioners has no application to the case on hand. Hence he pleads that the petition be dismissed.
4. On hearing learned counsels, we are of the considered view that appropriate relief requires to be granted. The admitted facts are that the respondent was appointed on ad-hoc basis in terms of the memorandum 6 dated 7-1-1980 on various terms and conditions. The same can be found at Annexure-A2 to the petition. It would state that the respondent is appointed on various terms and conditions. One such Condition No.(a) reads as follows:-
"a) The appointment is made purely on adhoc basis and it is liable for termination at any time without assigning any reason thereof. The appointment is also subject to his work and conduct being satisfactory.
b) xxxxx
c) xxxxx xxxxx"
Therefore the appointment was purely on ad-hoc basis. Thereafter by the memorandum dated 16-1-1986 he was appointed to a substantive capacity with effect from 1st July, 1985 in terms of Annexure-A3. His plea for counting the period between 10-1-1980 to 30-6-1985 was negated by the respondents. The tribunal was of the view that since he has rendered services all these years and he has 7 worked without a break, his appointment is to be considered as an appointment on regular basis from 10-1-1980. Even though the Tribunal took note of the fact that the appointment of the respondent is on temporary/ad-hoc basis, but for all purposes it is a regular appointment. The tribunal held at para-6 as follows:-
"6. ........... Therefore, in the facts and circumstances of the case, we declare that the applicant had been regularly appointed and he is continuously working in service and in consequence issue a mandate to the respondents to consider his appointment as valid appointment from 1.1.1980 and count it for the purpose of ACP and MACP. The OA is allowed to the extent as above. No order as to costs."
We are unable to accept the view of the tribunal. Only because he has rendered services without any interruption cannot be a ground to hold that the said period is to be considered as if he has been appointed regularly. The appointment order clearly shows that it is purely on ad-hoc basis. Once the appointment is made on ad-hoc basis the 8 same cannot constitute as if made on regular basis. The Hon'ble Supreme Court in the case of HARYANA POWER GENERATION CORPORATION LIMITED AND OTHERS v. HARKESH CHAND AND OTHERS reported in 2013 AIR SCW 347 on considering the issue at para-16 held as follows:-
"16. As the facts have been further uncurtained, on 27.1.1998, the Board introduced the Assured Career Progression Scheme (for short "the ACP Scheme") with the objective to provide such Board employees who fall within the scope of the Scheme at least two financial upgradations including the financial upgradation, if any, availed by such Board employees as a consequence of the functional promotion. Clause 2 excludes certain categories of employees, namely, appointed on adhoc basis, work charged basis, part time paid out of contingencies and a daily wager from getting the benefit of the Scheme. Clause 3 deals with the definitions. It defines in Clause 3(b) "direct recruit fresh entrant".
The same, being relevant, is reproduced below:-
9
(b) "Direct Recruited Fresh Entrant: with reference to a post or a Board Employee means the post on which such Board employee was recruited as a regular and direct recruitee in the Board service and is in continuous employment of Board since such recruitment;"
Therefore it is clear that the Hon'ble Supreme Court held that all those who were appointed on ad-hoc basis cannot be considered for granting the benefit of the scheme. Therefore, we are of the view that based on the aforesaid Judgment the same being applicable to the facts and circumstances of the case, the direction issued by the tribunal cannot be sustained.
5. However, the learned counsel for the respondent contends that the Judgment is not applicable. That it is with reference to a different scheme and hence the judgment is not applicable. We are unable to accept the said contention. The Judgment of the Hon'ble Supreme Court on this aspect is 10 very clear and does not require any interpretation. Infact, the latter portion of the Judgment in para-28 the Supreme Court held as follows:-
"28........................It is worthy to note that the respondents were not recruited under the said policy. They were appointed as apprentices ITI trainee on 28.3.1987 and they were not given any kind of post. It is only mentioned that they may be appointed as Plant Attendant Grade-II/Technician Grade-II. Thereafter, they were appointed on different dates as Officiating Technician Grade-II. The regular pay scale was given from the date of appointment. Prior to that, it was a fixed pay. They were not working on a post. They did not belong to any cadre. In fact, they were not recruited and, hence, the term trainee which has been referred to in various clarificatory letters has been misconstrued by the High Court."
Therefore, the Hon'ble Supreme Court held that by virtue of the appointments they were not given any kind of posting. That they were not working on any fixed post. That they did not belong to any cadre. Under these 11 circumstances, whatever period they have spent in that capacity cannot be reckoned as if temporary appointment is a permanent appointment and consequential relief should be granted. We are of the considered view that the Judgment squarely applies on all fours to the case on hand. We are unable to accept the contention of the respondent that the Judgment is not applicable.
6. In terms of the office memorandum with regard to the Assured Carrier Progression Scheme dated 9- 8-1999 produced as Annexure-R1 the same would not come to the benefit of the respondent. Para 3.1 of the said memorandum would narrate that all those appointed as casual employees, ad-hoc employees or contract employees shall not qualify for the benefits under the aforesaid scheme. So also in the memorandum dated 19- 5-2009 with respect to the Modified Assured Career Progression Scheme, vide Annexure-R-2, it is stated in para-3 therein that the casual employees and those 12 appointed on ad-hoc or contract basis shall not qualify for the benefit of the aforesaid scheme. Therefore, the situation is that ad-hoc employees are not entitled for the benefit of the said scheme. Therefore when undisputedly the respondent was on ad-hoc basis from 10-1-1980 to 30-6-1985, for that period he will not be entitled to any benefit under the Scheme. Therefore based on these facts the plea of the respondent would have to fail.
7. So far as the contention of the respondents that the High Court of Madras in its order dated 10-9-2008 passed in writ petition No.5876/2008 is concerned, we are of the considered view that in view of the later Judgment of the Hon'ble Supreme Court referred to above, the said Judgment would be of no avail. When the Rules and the Judgments of the Hon'ble Supreme Court are clear on the issue, the question of interpreting the same with the sole purpose of granting relief to the parties is wholly uncalled for. When the Rules and the Judgments are clear 13 on the issue, the tribunal in our considered view exceeded its jurisdiction in passing the impugned order.
8. Under these circumstances, we are of the considered view that the order of the tribunal is erroneous. The tribunal committed an error in declaring that the respondent has been regularly appointed and that he is continuously working and as a consequence whereof to consider his appointment as valid from 1-1-1980. We are of the view that the appointment of the respondent on ad- hoc basis from 1-1-1980 up-to 30-6-1985 cannot be taken into account for grant of any relief to the respondents. Consequently, the endorsement issued by the petitioners dated 18-7-2011 is just, appropriate and in accordance with law.
For the aforesaid reasons, the petition is allowed. The order dated 14-2-2013 passed by the Central Administrative tribunal, Bangalore Bench, in application 14 No.325/2012 is set aside. The said application of the respondent is dismissed.
Rule made absolute.
Sd/-
JUDGE Sd/-
JUDGE Rsk/-