Central Administrative Tribunal - Lucknow
Ripu Daman Verma vs Union Of India (Uoi) And Ors. on 22 February, 2007
Equivalent citations: 2007(3)SLJ346(CAT)
ORDER A.K. Singh, Member (A)
1. The Original Application 469 of 1998 has been filed by the applicant Dipu Daman Verma (address given in the O.A.) against the action of the respondents in not counting his seniority as on the date of initial appointment i.e. 14.2.1969 to the post of Junior Medical Officer, Post and Telegraph on ad hoc basis but w.e.f. 10.3.1972 when he was appointed on selection to the post on a regular basis in accordance with rules, basis on the recommendations of Union Public Service Commission as provided under rules.
2. Brief facts of the case are that the applicant was appointed on the post of Junior Medical Officer by the P&T Board, Govt. of India, vide notification dated 10.7.1969 on purely temporary and ad hoc basis. The applicant was subsequently regularized on the basis of the recommendation of the UPSC vide their letter No. E-1/6089117) 71 RD dated 10.3.72, he was accordingly posted as Medical Officer (General Duty Officer II) of Central Health Services from 10.3,1972 on regular basis. The applicant further submits that he was placed in Junior, Junior Class I Scale from 1.1.73 in the scale of Rs. 700-40-900-EB-40-1100-50-1300 and was posted at Kanpur. He crossed the E.B. in the pay scale of Rs. 700-1300 w.e.f. 1.4.78. He was also appointed as General Duty Officer Grade II (now Junior Class I scale of the Central Health Services) by the respondents w.e.f. 1.3.1982. The applicant was acted promoted as Senior Medical Officer in Central Health Services from Junior Class I Grade to Senior Class I Grade w.e.f. 26.11.1982 vide office order dated 14.2.1983 and was posted at C.G.H.S. Kanpur. He was further promoted as Chief Medical Officer and in pursuance of this order, joined as Chief Medical Officer at C.G.H.S., Lucknow on 16.3.1988. He was also appointed as Chief Medical Officer (Non-Functional Selection Grade) in the pay scale of Rs. 4500-5700 w.e.f. 1.7.1991 by order dated 26.12.91 and has been working on the aforesaid post since then. The applicant submits that he made a representation on 25.6.1987 to Secretary, Ministry of Health and Family Welfare with request to count his ad hoc services also in determination of his seniority as per law settled by Hon'ble Supreme Court of India. He also submitted a few more representations to him through his immediate superior authorities. Ministry of Health ultimately considered his case and finally decided that the services rendered by the applicant, on ad hoc basis, shall qualify for his pensionary benefits. However, the Ministry kept mum on the question of counting of seniority of the applicant from the date of his initial appointment as requested by him. He submits that he made several representations to respondent No. 1, namely, Union of India, who only made certain queries as to whether the services of the applicant on ad hoc basis since initial appointment on the post as Junior Medical Officer on 10.7.1969 was continuous or otherwise. It was informed by the authorities that the period of officiation of the applicant was continuous but the respondent No. 1 did not give any decision in the matter i.e. whether his services rendered on ad hoc basis should be considered to determine his inter-se-seniority which in the opinion of the applicant should have been done as his subsequent appointment was followed by regularization, in accordance with rules. According to the applicant, in the absence of any statutory rules or instructions to the contrary, the inter-se-seniority is to be fixed on the basis of continuous length of service but in his case, the ad hoc period of his officiation on the post of Junior Medical Officer since 14.2.69 has not been considered by the respondents. He submits that as per settled law laid down by the Hon'ble Supreme Court that if the ad hoc and temporary appointment of an employee is followed without break by substantive appointment, his seniority has to be reckoned from the date of his initial appointment in the grade. In view of these submissions, applicant claims the following reliefs:
(i) To issue a direction to the respondents to consider the ad hoc period of the applicant and fix his seniority accordingly;
(ii) To direct the respondents to promote the applicant for the next higher post in the Senior Administrative Grade by counting his seniority from the initial date of appointment with consequential benefits;
(iii) To direct the respondents to decide the representation of the applicant;
(iv) To issue any other order which this Hon'ble Tribunal they deem just and proper in the circumstances of the case.
3. Respondents, on their part, have contested the Original. Application in question. They submit that the case relating to regularization of ad hoc services rendered by the applicant had been considered by the Ministry and the Ministry vide their letter No. 12026/ 12/87-CHS-l (P&T) dated 6.6.1994 rejected the claim of the applicant to give advantage of service rendered by the applicant w.e.f. 10.3.1972 to 1.1.1973 for the purpose of promotion/ seniority. The Ministry, however, decided to treat the period of ad hoc services of the applicant as qualifying service for pensionary benefits. It was also pointed out by the Ministry that the case of the applicant had been considered in the light of judgment of Hon'ble Supreme Court dated 29.10.1991 in the case of Dr. P.P.C. Rawani and Others according to which, the ad hoc services of the incumbents has to be regularized w.e.f. 1.1.73 or from the date of his initial appointment on ad hoc basis which ever is later. "In view of this decision, the services of the applicant could be regularized only w.e.f. 1.1.1973. The applicant has already been appointed in Central Health Service w.e.f. 10.3.1972 i.e. prior to 1.1.1973 hence, it may not be advantageous to regularize him in terms of Hon'ble Supreme Court judgment dated 29.10.1991 in Dr. P.P.C. Rawani's case. However, the services rendered by the applicant w.e.f. 10.3.72 to 1.1.1973 on ad hoc basis against a Central Health Services post could be considered for treating as qualifying service for pensionary benefits and this had already been accepted, in the case of the applicant by the Ministry. In view of the above, respondents submit that there is no merit in the O.A. and the same deserves to be dismissed.
4. The applicant as well as respondents were heard through their respective Counsels on 31.1.2007. Mr. Pratyush Tripathi appeared for the applicant and Mr. S.P. Singh appeared for the respondents. In their oral submissions, Counsels on both sides reiterated their submissions as above.
5. We have given our anxious consideration to the submissions made by learned Counsel on both parties and have also perused the records. We find that the Apex Court has made an in-depth examination of issue involved in this case, while dealing with on identical case of similarly placed Officers of Central Health Services i.e. Dr. P.P.C. Rawani and Ors. v. U.O.I. and Ors. and Dr. Harbans Singh and Ors. v. Union of India and Ors. in Civil Miscellaneous Petition No. 8076 of 1997 in C.A. No. 3519 of 1984 and Writ Petition (Civil) Nos. 2620-59 of 1985 and I.A. Nos. 3, 5,6 and 7 of 1990, decided on October 29, 1991 [Reported in (1992)1 Supreme Court Cases, 331]. The Apex Court on detailed examination of the issues includes decided the broad principles to determine the inter-se-seniority of direct recruits v. Ad hoc appointees in Group 'A' cadre and had issued a direction to regularize the ad hoc appointees in Group 'A' cadre w.e.f. January 1, 1973 or the date of their original substantive in accordance with rules whichever is later. The issue has been debated by the Apex Court in Paras 2, 3 and 4 of the aforesaid judgment, which for convenience is reproduced as under:
2. Briefly the appellants were originally appointed after interview by Selection Committees but only as ad hoc appointees in the above service. They were appointed on various dates between 1968 and 1977. Their grievance is that despite their long service in the Department they were not regularized with reference to their original dates of appointment. The Union of India pointed out certain difficulties in giving effect to the order of this Court of April, 1987 by filing a review petition and then a clarification application but these have been dismissed. The resultant position is that all the appellants have to be regularized in Group A of the Central Health Service w.e.f. January 1, 1973 or the date of their respective original appointments whichever is later. We may mention here that this date January 1, 1973 is mentioned here because the appellants have now expressed their willingness to be considered for regular appointment only from this date and not from any earlier date, this being the date on which the Group B and Group A services were merged together by the Government of India on the recommendations of the Third Pay Commission. The only difficulty experienced by the Union of India in giving effect to the directions of this Court which now subsists is that if regularization is granted to all the appellants, doctors who have been regularly appointed in Group A after an interview by the Union Public Service Commission may get relegated to secondary positions in view of the fact that the appellants were appointed much earlier though on an ad hoc basis. These regularly recruited doctors had not been heard earlier and they have now come up with intervention applications praying that any order of regularization of the appellants should ensure that their interests are not prejudiced. This way also the anxiety of the Union of India as expressed in the counter affidavit filed in this Court.
3. After hearing all the Counsel, we were inclined to think that while the appellants should get their rights which were declared by this Court in its earlier orders, there should at the same time be no prejudice to the doctors appointed through regular recruitment by the Union Public Service Commission. After some discussion, Counsel for the appellants agreed to put forward certain proposal which would safeguard their interests and also at the same time not prejudice the regular appointees through the Union Public Service Commission. The essence of the proposal made by them is that they may be treated to be a separate category with their own seniority list and entitled to promotion in accordance with that seniority list, the problem of conflict with the direct regular recruits being avoided by creation of an appropriate number of supernumerary posts. The Union of India is not agreeable to accept these proposals which were set down by the appellants at our instance, in the form of an affidavit. The proposals of the appellants have been set down in an annexure to an affidavit filed by Dr. P.P.C. Rawani and dated July 16,1991. However, after considering the matter, we are of the opinion that there is no way of rendering justice to all the parties before us except by accepting these proposals in the manner to be set down below particularly because we find that while making the proposals, the appellants have also to some extent expressed the willingness to forego certain rights that might have accrued to them in consequence of the earlier orders passed by this Court. We are of the opinion that the proposals made are reasonable in the circumstances of the cases and that they do not also in any way prejudice the rights of the regularly recruited doctors.
4. In view of this, we direct that the following proposals be implemented by the department by way of giving effect to the order of this Court in C.A. No. 3519 of 1984 dated April 9, 1987 and the subsequent clarification orders passed by this Court. The directions given are as follows:
(1) Each of the appellants will be treated as regularized in Group A of the Central Health Service from January 1,1973 or the date of his first initial appointment in the service (though as ad hoc Group B doctor), whichever is later, (2) In order to ensure that there is no disturbance of the seniority and the promotional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions (about which directions are given below) shall be regulated by such separate seniority list and such promotions will only be in supernumerary posts to be created as mentioned below.
(3)(a) Each of the? appellants will be eligible for promotion to the post of Senior Medical Officer of Chief Medical Officer or further promotional posts therefrom taking into account his seniority in the separate seniority list which is to be drawn up as indicated above.
(b) The promotion of any of the appellants to the post of Senior Medical Officer, Chief Medical Officer and further promotional post therefrom will be on par with the promotion of the regularly recruited, doctor who is immediately junior to the concerned appellant on the basis of their respective dates of appointment. In other words, if a regularly recruited doctor, on the basis of the seniority list maintained by the department gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter, then the appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical Officer or Chief Medical Officer or further promotion therefrom (as the case may be) with effect from the same date.
(4) In order that there may be no conflict or any possibilities of reversion, the post to which an appellant will be promoted (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom) should only be to a supernumerary post. Such number of supernumerary posts should be created by the Government as may be necessary to give effect to the above directions. No promotion will be given to any of the appellants in the existing vacancies which will go only to the regularly appointed doctors.
(5) The appellants hereby agree to give up all monetary claims on account of revision of scales, regularization or promotion to which they would be entitled till October, 31, 1991, (6) Apart from the appellants there are certain doctors who fall in the same category but who had not filed writ petitions before the High Court. They have filed directly writ petitions before this Court bearing Nos. 2620-2659 of 1985 and intervention applications. The intervention applications are allowed and rule nisi is issued in the writ petitions of which the other parties take notice. These interveners and writ petitioner have to be granted the same relief as the appellants. It is made clear that all these appellants and petitioners will be entitled to the same relief as the appellants for all purposes of seniority and promotions. All monetary claims on account of revision of scales regularization or promotion till October, 31, 1991 are given up by these applicants and petitioners as well.
6. In view of these settled principles of law by the Apex Court in case of similarly placed employees of the Central Health Scheme, the judgment in question applies to the case of the applicant, in to-to and hence the request of the applicant to treat him as a separate class and to issue direction to respondents to count the period of his ad hoc service w.e.f. 10.7.1969 will clearly prejudice the case of direct recruits who have also not been impleaded as necessary parties in the Original Application. Moreover, if we entertain the request of the applicant the same will be in clear breech of the principles enunciated by the Apex Court in the case of similarly placed employees of the Central Health Service. Moreover, in the case of T.R. Dhananjaya v. J. Vasudevan , the Apex Court has held that:
When the claim of infer-se-seniority had been adjudicated and had attained finality, it is not open to the respondent to go behind the orders and truncate the effect thereof by hovering over the rules to get around the result, to legitimize legal alibi to circumvent the order passed by a Court.
7. It will also not be prudent to entertain a request for change in the date of seniority after more than 3 decades and that too when the applicant has already retired from service on 28.2.2001 as affirmed by him in Para 5 (G) of his Original Application. It has been held by the Apex Court further in the case of B.S. Bajwa v. State of Punjab and Ors. 1998(3) SLJ 28 (SC) : 1998 SCC (L&S) 611.
It is well settled that in service matters, the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that result in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226.
8. Moreover, in the case of Government of A.P. v. MA. Kareem 1991(2) SLJ 14 (SC) : 1991 Supp.(2) SCC 183, the Apex Court has reiterated the same view:
Besides the above infirmities, there are two other important considerations which weigh heavily against the respondents. The petition before the Tribunal was filed by the respondents after a period of 13 years of their initial appointment in the chief office during which period many orders consistent with the terms of service as indicated in the Memorandum-Annexure 'A' much have been passed in favour of the incumbents of the service. The Courts and Tribunals should be slow in disturbing the settled affairs in a service for such a long period.
9. We also find that the Government has already decided to count the ad hoc services of the applicant for the purpose of pensionary benefits which is just and fair in the circumstances of the case. As the applicant has already retired, the clock cannot be turned backwards as he will not be able to physically hold the posts even on promotion. The only relief that can be given to him is, enhancement of his pensionary benefits which has already been provided to the applicant by the Govt.
10. In view of the above, the O.A. is dismissed as devoid of any merit without any order as to costs.