Madhya Pradesh High Court
Union Of India vs Mrs. Lakshmi Haridas on 10 December, 2011
Author: T. K. Kaushal
Bench: T. K. Kaushal
HIGH COURT OF MADHYA PRADESH, JABALPUR
Writ Petition No.17651/2011
Union of India and others............................................................Petitioners
Versus
Mrs. Lakshmi Haridas................................................................Respondent
For the petitioners : Shri S. K. Mishra, Advocate.
For the respondent : Shri Anoop Nair, Advocate.
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Present : HONOURABLE SHRI JUSTICE AJIT SINGH
HONOURABLE SHRI JUSTICE T. K. KAUSHAL
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ORDER
(10.12.2011) The following order of the Court was delivered by :
Ajit Singh, J. This petition, under Article 227 of the Constitution, is directed against the order dated 24.3.2011, Annexure P1, passed in Original Application No.156/2010 by the Central Administrative Tribunal, Jabalpur Bench (in short, "the Tribunal") whereby it has directed the petitioners to grant the benefit of first financial upgradation under Assured Career Progression Scheme (ACPS) to the respondent with effect from 22.7.1999 and also to pay the arrears due to her as per rules on account of grant of first financial upgradation.
2. On 12.11.1986 the respondent was initially appointed in the Tribunal as typist on contingency basis. Thereafter, a test was conducted on 6.7.1987 in which the respondent appeared alongwith candidates sponsored by the employment exchange. In the test, the respondent was declared selected. Thereupon she was appointed on the post of Stenographer Grade `D' on ad-hoc temporary basis in the pay scale of Rs.1200-2040 with effect from 22.7.1987 for a period not exceeding one 2 year. By another order dated 2/5.8.1988 the term of appointment of respondent as Stenographer Grade `D' on ad-hoc temporary basis was extended till further orders or until regularized under the recruitment rules.
3. But a Departmental Promotion Committee in its meeting held on 30.7.1993 did not find the respondent qualified for the post of Stenographer Grade `D'. The competent authority therefore, on the recommendation made by the Departmental Promotion Committee, by order dated 12.8.1993 regularized the respondent on the post of Lower Division Clerk with effect from 10.8.1993. One of the conditions stipulated in the order was as under:
"(iii) She will be entitled to notional seniority on the post of Lower Division Clerk w.e.f. 22.7.87 (the date of her initial appointment). However, she will rank junior most amongst other Lower Division Clerks on the date of her regularization, although she will be entitled to weightage for her past ad-hoc services as Stenographer Grade `D' as and when she falls within the zone of consideration for next promotion."
(emphasis supplied)
4. Thereafter, by order dated 8.9.1993 the respondent was confirmed on the post of Lower Division Clerk with immediate effect. The competent authority by order dated 13.8.2007 granted first financial upgradation under ACPS to the respondent in the pay scale of Rs.4000- 100-6000 with effect from 9.8.2005 on her completion of 12 years regular service. Since the period of 12 years of respondent's service was counted from 8.9.1993, she felt aggrieved and made a detailed representation dated 20.11.2008 to the authority requesting for grant of first financial upgradation with effect from 22.7.1999 on completion of 12 years of service counting from 22.7.1987. The competent authority did not agree with the respondent and rejected her representation on the ground that in terms of para 3.2 of the Government of India OM dated 9.8.1999 (ACPS) read with clarification to Point of Doubt No.11 indicated in DOP&T OM No.35034/1/97-Estt. (D) (Vol.IV) dated 10.2.2000 only regular service which counts for the purpose of regular 3 promotion in terms of relevant recruitment/service rules shall count for the purpose of upgradation under ACPS.
5. The respondent, aggrieved with the rejection of her representation, filed Original Application No.156/2010 before the Tribunal. The Tribunal, relying upon the decision dated 10.9.2008 of the Madres High Court in Union of India v. Skariah Thomas (Writ Petition No.6876/2008) held that the ad hoc services rendered by the respondent from 22.7.1987 on the post of Stenographer Grade `D' must also be counted for the benefit of first financial upgradation under ACPS, more particularly when the order dated 12.8.1993 itself speaks that she will be entitled to notional seniority on the post of Lower Division Clerk with effect from 22.7.1987. On this finding, the Tribunal allowed the Original Application of respondent and directed the petitioners to grant her the benefit of first financial upgradation under ACPS with effect from 22.7.1999 i.e. on completion of 12 years of service counting it from 22.7.1987 and not from 8.9.1993.
6. It is argued on behalf of the petitioners that the Tribunal committed an illegality in not correctly understanding the circular dated 9.8.1999 of the Government of India. The learned counsel for respondent, on the other hand, defended the order under challenge passed by the Tribunal.
7. The relevant para 3.2 of the ACPS reads as under:
"Regular Service for the purpose of the ACP Scheme shall be interpreted to mean the eligibility service counted for regular promotion in terms of relevant Recruitment/Service Rules."
8. The clarification dated 10.2.2000 of the Government of India in respect to the above quoted para 3.2 is as under:
"In case of an employee appointed on ad-hoc basis and who is subsequently regularized, the ad-hoc service is counted towards increment. Whether the ad-hoc service may be counted for the ACPS also?4
No. In terms of para 3.2 of the Office Memorandum dated August 9, 1999 (ACPS), only regular service which counts for the purpose of regular promotion in terms of relevant Recruitment/Service Rules shall count for the purpose of upgradation under ACPS."
9. The respondent was appointed on 22.7.1987 on the post of Stenographer Grade `D', though on ad-hoc temporary basis, but after her due selection in the test conducted on 6.7.1987 in which other candidates sponsored by the employment exchange had also participated. She continued on the said post up to 8.9.1993, pursuant to the extension order passed by the competent authority. On 8.9.1993 she was confirmed on the post of Lower Division Clerk on the basis of recommendation made by the Departmental Promotion Committee. The order dated 10.8.2003 regularizing the respondent on the post of Lower Division Clerk clearly stipulates that she will be entitled to notional seniority on the post of Lower Division Clerk with effect from 22.7.1987. When the seniority of respondent has been protected from 22.7.1981 we find no justification in petitioners' action denying her the benefit of the period of service rendered by her from that date for the purpose of grant of first financial upgradation under ACPS. In an identical fact situation the Madras High Court in Union of India v. Skariah Thomas (Supra), after examining the above quoted para 3.2 and its clarification and relying upon the decision of the Supreme Court Union of India v. M. Mathiavanan (2006) 6 SCC 57, directed the Union of India to count even the period of ad-hoc service rendered by an employee for the purpose of grant of benefit of first financial upgradation under ACPS. It is stated at the Bar that the Supreme Court has dismissed the SLP vide order dated 8.7.2009 against the decision of the Madras High Court.
10. For these reasons, we find no merit in the petition. It is accordingly dismissed.
(AJIT SINGH) (T. K. KAUSHAL) JUDGE JUDGE ps