Central Administrative Tribunal - Lucknow
Unknown vs Union Of India Through The Secretary on 27 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH, LUCKNOW
Original Application No.95/2011
Reserved on 24.7.2012
Date of Pronouncement: 27.7.2012
Honble Dr. K.B.S. Rajan, Member (J).
Honble Mr. S.P. Singh, Member (A)
Sanjay Pandey, aged about 46 years, S/o Dr. C.K. Pandey, R/o CM-II-I, Sector B, Aliganj, Lucknow.
Applicant.
By Advocate: Sri R.C. Singh.
Versus.
1. Union of India through the Secretary, Ministry of Water Resources, Government of India, New Delhi.
2. The Central Ground Water Board CGO Complex, NH I District Faridabad. Haryana through is Chairman.
3. The Regional Director, Central Ground Water Board Northern Region, Lucknow and 32 others.
. Respondents.
By Advocate: Sri S.P. Singh for R-1 to R-3.
ORDER
By Dr. K.B.S. Rajan, Member (J).
The challenge in this OA is against action on the part of the respondents by which, the ad hoc services of the private respondents in the post of Asst hydrogeologists have all been with retrospective effect for the period beyond one year of ad hoc service from the date of their joining. The applicant is aggrieved by such regularisation with retrospective effect as he would become junior to the then junior in the aforesaid posts though he had been holding the post since 2008 on regular basis whereas the private respondents had been holding such posts only on ad hoc basis. In other words, the challenge is that the retrospective regularization of the private respondents shall not come in the way of the seniority of the applicant.
2. Briefly stated, the applicant was posted as senior technical assistant (hydrogeology) in the Central Groundwater Board which he joined on 30 July 1991. After 12 years of his service in the said post, he was granted the first financial upgradation under the ACP scheme w.e.f. 30th of July 2003 which has brought him the pay scale of Asst. Hydrogeologist. In addition, the applicant was promoted on a regular basis to the aforesaid post of Assistant Hydrogeologist in the pay scale of Rs 7500 12000 w.e.f. second of September 2008.
3. Insofar as the private respondents are concerned, as per the seniority list of Senior Technical Assistants published in 1994, the applicant happens to be senior to all the private respondents. These private respondents were considered for ad hoc promotion to the post of Assistant Hydrogeologist vide Annexure A1 order dated 31st of March 1997. Paragraph 2 (iii) of the said order contained the condition that the ad hoc promotion will not confer any rights for regularisation of the same or for the benefit such as seniority etc., on a future date. In fact the applicant being senior also could have been given the above said ad hoc promotion in 1997 itself but for the fact that he was given some adverse remarks in his ACR at that relevant point of time. Nevertheless, the applicant was granted regular promotion from September 2008 as said in the preceding paragraph. Thus, when the applicant has been functioning on a regular basis, the private respondents have all been treated only as ad hoc promotees to the post of Assistant Hydrogeologist. However vide order dated 9th February 2011 at Annexure A-10 followed by order dated 17 February 2011 vide Annexure A11, the government have regularised the ad hoc services of private respondents for a period beyond one year of ad hoc service from the date of joining by which they would steal a march over the applicant whose date of regular promotion to the post of Asst. Hydrogeologist is 2008. The applicant has agitated against the same through this O.A and has sought the following main reliefs:-
(i) to quash the orders dated 9.2.2011 and 17.2.2011 as contained in Annexures No. A-10 and A-11 to this Original Applikcation and quash qthe regularisation of adhoc services of the respondent nos. 4 to 35 as Assistant Hydrogeologist and declare the applicant entitled to all the consequential service benefits that fell due in his favour.
4. Official respondents have contested the OA. Though private respondents were served, nobody made any appearance and therefore these private Respondents have been set ex parte.
In their counter, official respondents have stated that due to non-availability of direct quota candidates in the year 1997, 33 posts of Assistant Hydrogeologists pertaining to direct quota were filled up by granting promotion to senior technical assistants on ad hoc basis vide office order No. 321 of 1997. The name of the applicant was also considered for such ad hoc appointment but was found unfit for promotion due to adverse remarks recorded in the assessment reports for the years 1992 93, 1993 94 and 1994 95. 17 out of 33 individuals so promoted as Asst. Hydrogeologists on ad hoc basis happen to be junior to the applicants. Later on, many of these have been regularly promoted under their own promotional quota.
5. As regards regularisation the respondents have contended that the Ministry had in consultation with the Department of Personnel and Training and on their approval only the ad hoc services of the private respondents have been regularised
6. The applicant has filed his rejoinder, denying all the contentions and averments made in the counter and reiterated the contents of the Original Application; he has also annexed a copy of the noting of the Ministry through which the past services of private respondents were got regularised. The respondents have filed supplementary affidavit against the rejoinder.
7. Counsel for the applicant argued that retrospective regularisation would not apply in the case of the respondents in view of the fact that the order of their ad hoc promotion had clearly stipulated that the promotion would not confer any right to regularisation, seniority etc. He has also submitted that the Recruitment Rules provide only for two modes of filling up of the posts, i.e direct recruitment and promotion. There is no provision for filling up of the posts by way of regularisation of ad hoc promotees.
8. Counsel for the respondents submitted that the regularisation of private respondents had taken place after thorough analysis of their entitlements and after getting the concurrence of the Department of Personnel.
9. Arguments were heard and documents perused. The Recruitment Rules provide for certain prescribed percentage of quota for direct recruitment to the post of Assistant Hydrogeologists and by promotion. For the year 1997, there were 33 vacancies to be filled up under the direct recruitment quota. It has been stated that there was non-availability of candidates for appointment under direct recruitment quota and hence it became necessary to promote some of the Senior Technical Assistants on ad hoc basis to the post of Assistant Hydrogeologists. The promotions were only for a short spell though the same extended periodically. During their services on ad hoc basis, some of the respondents who are senior enough to be promoted on regular basis against their promotional quota, were considered and promoted to this post. As a matter of fact, the promotion given to the applicant in 2008 was one among such promotees.
10. From the perusal of the pleadings, it is seen that the Department of personnel has taken into account the Constitution bench judgement in the case of Direct Recruits class II Engineering Officers Association versus government of Maharashtra (1990) 2 SCC 715 in which in paragraph 47 are provided certain guidelines for regularisation. The same are as under:
47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
11. The Department of Legal Affairs which considered the matter for regularization, has also referred to the decision of the Apex Court in the case of Ch. Narayana Rao vs Union of India (2010) 10 SCC 247, and extracted the following portion of the judgment.
18. This judgment of the Constitution Bench in Direct Recruit case1 has been followed by three learned Judges of this Court in State of W.B. v. Aghore Nath Dey2 authored by most illustrious learned Judge of this Court, Hon'ble Mr Justice J.S. Verma (as he then was).
19. After considering the scope and ratio decidendi of Direct Recruit case1, it has been held in SCC paras 24 and 25 in lucid and concise words as under: (Aghore Nath Dey case2, SCC pp. 382-83) 24. The question, therefore, is of the category which would be covered by Conclusion (B) excluding therefrom the cases covered by the corollary in Conclusion (A).
25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, if the initial appointment is not made by following the procedure laid down by the rules and the latter expression till the regularisation of his service in accordance with the rules. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A).
20. According to us, the corollary appended to Clause (A) of Direct Recruit case and the aforesaid judgment in Aghore Nath Dey case squarely decide the issue.
12. After recording the above, the Law Ministry had also referred to the DOPT OM about the prescription of one year as the maximum period of ad hoc promotion and advised the 'referring Ministry' to take suitable administrative Decision.
It was in the wake of the above that the Department has decided to regularise the service of the ad hoc promotees from the period beyond one year of the initial ad hoc promotion.
13. The case in hand involves the main legal issue whether in so regularizing the ad hoc promotions, the Rules were followed and whether there is any break in Quota Rule (between Direct Recruits and Promotees). First, it is to be clarified here that the Maharashtra Direct Recruit Class II judgment while summing up the rule position, clearly distinguishes cases where ad hoc promotion has been granted in deviation/violation of 'Rule' on the one hand and 'Procedure' on the other hand. Thus, Para 47(a) with its corollary deals with the situation of ad hoc promotion granted in deviation/violation of the Rules. The said para reads (at the cost of repetition) as under:-
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
14. The impermissibility of appointment not in accordance with the rules and made as a stop gap arrangement to count for seniority has been specifically mentioned therein.
15. Para 47(b) deals with the case where the rules have been followed but not the procedure. (The procedure may include holding of DPC etc., ) and the said para states as under:-
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
If the case of the private respondents falls within the category of 47(a) above, then there is no question of regularization of the ad hoc period of service. Instead, if it falls within the scope of (b), the same is permissible.
This now calls for whether the ad hoc promotion granted against the D.R. Quota vacancies would be a deviation from the Rules or procedure.
16. Obviously, the prescription of percentage of vacancies is one under the Rules. The Rules provide for specific percentage of D.R. Quota and Promotee quota. This is the admissible position. Since, there were no candidates available in the D.R. Quota, it became necessary to resort to ad hoc promotion. Para 47(c) of the judgment in the Direct Recruit case provides answer to the issue. The said para reads as under:-
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
If the Rules provide for such ratio and if the same could not be followed for one year, whether it could be held as quota rule having been broken is the next question. Answer to the same is available in para 47 (D) to (F) which read as under:-
(D)If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. Break of quota rule takes place only when quota rule is not followed for a number of years. In that event, if recruitment takes place from the other source, there could be a presumption (ordinarily) that power of relaxation, if available under the Rules in respect of provisions relating to the quota, is exercised. If however, the quota is not followed for only a particular year, then the case has to be dealt with as per the decision of the Apex Court in other cases. The following cases deal with the same:-
(a) In A.K. Subraman v. Union of India, (1975) 1 SCC 319, the Apex Court has held as under:-
26. But then the question may arise as to how the quota rule is to be applied. Here again we find that guidance is afforded by the decision of this Court in Bishan Sarup Gupta case. Para 14 of the judgment in that case deals with this very question vis-a-vis recruitment to the cadre of Income Tax Officers, Grade II, Class I:
On the other hand, the contention on behalf of the direct recruits is that the real intention of the rule was to secure that at any given moment the service must consist of direct recruits and promotees in the proportion of 2:1. If, for example, in any year 50 direct recruits were appointed, then not more than 25 promotees could be appointed in that year. If also no direct recruit was appointed in a year there could be no appointment of promotees. This line of argument has been accepted by the High Court and it was substantially on that ground that the seniority list prepared on July 15, 1968, has been set aside and directions given for preparing a fresh one. What was, however, overlooked is that the rule, dated October 18, 1951, was not concerned with the constitution of the cadre but was concerned as to how permanent vacancies were to be filled. Rule 4 of the Income Tax Class I, Grade II Service Recruitment Rules also refers to recruitment of candidates to vacancies in the service. The vacancies for any particular year being ascertained, not more than one-third of the same were to go to the promotees and the rest to the direct recruits. The ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. We are, therefore, unable to accept the construction put on the quota rule by the High Court. In our opinion, the promotees were entitled to one-third of the vacancies in any particular year whether or not there was direct recruitment by competitive examination in that year. It would, therefore, be seen that the Assistant Executive Engineers were entitled initially to three-fourth and subsequently to two-third of the vacancies in the grade of Executive Engineers arising in any particular year, while Assistant Engineers were entitled initially to one-fourth and subsequently to one-third of such vacancies and the ratio was not dependent on whether any persons from one class or the other were promoted or not. If there were three vacancies in a year, two would go to the Assistant Executive Engineers while one would go to the Assistant Engineers and even if there were no eligible Assistant Executive Engineers, who could be promoted to fill in two vacancies belonging to their quota, one vacancy will have to be filled by promotion of an Assistant Engineer. If having regard to the exigencies of the situation, the two vacancies belonging to the quota of Assistant Executive Engineers had to be filled in by Assistant Engineers for want of availability of eligible Assistant Executive Engineers, the appointment of the Assistant Engineers to fill in such two vacancies would be irregular, because that would be outside their quota and in that event they would have to be pushed down to later years when their appointment can be regularised as a result of absorption in their lawful quota for those years. This is what was directed to be done by this Court for the purpose of fixing inter se seniority amongst direct recruits and promotees in the grade of Income Tax Officers Grade II, Class I, in Bishan Sarup Gupta case. This Court pointed out in that case as follows at p. 8: (Emphasis supplied) If there were promotions in any year in excess of the quota those promotions were merely invalid for that year but they were not invalid for all time. They can be regularised by being absorbed in the quota for the later years. That is the reason why this Court advisedly used the expression and onwards just to enable the Government to push down excess promotions to later years so that these promotions can be absorbed in the lawful quota for those years.
(b) G. Muniyappa Naidu v. State of Karnataka, (1976) 4 SCC 543, at page 548 :
5. But the argument of the State Government and the corporation was, and this argument found favour with the Division Bench of the High Court, that until the Cadre and Recruitment Regulations were amended, it was not competent to the corporation to absorb the appellants as permanent Senior Health Inspectors on the establishment of the corporation and the resolution of the corporation dated December 30, 1974, though sanctioned by the Government by its order dated May 6, 1975, was not effective to bring about absorption of the appellants as permanent employees of the corporation with simultaneous termination of their service as government servants. This argument requires consideration of some of the relevant provisions of the Cadre and Recruitment Regulations. The Cadre and Recruitment Regulations were framed under Sections 7, 84, 85, 88 and 94 of the Act and they were sanctioned by the State Government under Section 94 (g) of the Act and they came into force with effect from March 3, 1971 being the date on which they were published in the Government Gazette. Regulation 3 laid down the method of recruitment and minimum qualifications for recruitment to various posts enumerated in the schedule. One of the posts enumerated in the schedule was the post of Senior Health Inspector and it was provided in column 2 of the schedule that the method of recruitment to the post of Senior Health Inspector shall be:
50 per cent by promotion from the Cadre of Junior Health Inspectors of the Corporation.
50 per cent by deputation from the State Directorate of Health Services. The Cadre and Recruitment Regulations thus recognized only two modes of recruitment to the post of Senior Health Inspectors, namely, promotion from the cadre of junior Health Inspectors and deputation from the State Directorate of Health Services and one half of the cadre was to be drawn from each of these two sources. No other mode of recruitment could be resorted to by the corporation under the Cadre and Recruitment Regulations. It is difficult to see how in the face of this provision which has admittedly statutory effect, the posts of Senior Health Inspectors could be filled in by absorption of deputationist Senior Health Inspectors from the Karnataka State Civil Service. Senior Health Inspectors from the State Directorate of Health Services could only be on deputation to the extent of one half of the number of posts of Senior Health Inspectors on the corporation establishment and they could not be absorbed as permanent Senior Health Inspectors under the corporation without violating the aforesaid statutory provision. This statutory provision does not contemplate any Senior Health Inspectors on the establishment of the corporation who are drawn from the State Directorate of Health Services otherwise than on deputation and to absorb Senior Health Inspectors from the State Directorate of Health Services or permanent employees of the corporation (otherwise than on deputation), would be plainly contrary to its express mandate. It was, however, contended on behalf of the appellants that when they were absorbed as permanent Senior Health Inspectors on the establishment of the corporation, they were already in the cadre of Senior Health Inspectors under the corporation, filling 50% of the posts and their absorption as permanent Senior Health Inspectors did not constitute fresh entry into the cadre so as to require compliance with the Cadre and Recruitment Regulations. The position, according to the appellants, was similar to that of an employee who is initially officiating in a post in a cadre and is subsequently confirmed in the post. This contention, we do not think, is well founded. It is only by way of deputation that Senior Health Inspectors from the State Directorate of Health Services can find place in the cadre of Senior Health Inspectors on the establishment of the corporation. Not only their entry but also their continuance in the cadre of Senior Health Inspectors on the corporation establishment depends on their being on deputation. There is no scope under the Cadre and Recruitment Regulations for their absorption as permanent Senior Health Inspectors under the corporation. In fact, it is impermissible to do so.
(c) In M. Subba Reddy v. A.P. SRTC, (2004) 6 SCC 729, the case related to fitment of promotees in the integrated seniority list. The Post of Asst. Traffic Manager and Asst. Mechanical Engineer are Class I Junior Scale Officers' posts. for several years, due to ban on recruitment, promotions were made from lower feeder posts even in excess of the ratio of 1:1 under the A.P. State Road Transport Corporation Employees (Recruitment) Regulations, 1966 (hereinafter referred to as the Recruitment Regulations). Whenever direct recruitment was not possible within a short period and when administrative exigencies warranted the filling of posts, promotions were made either on ad hoc or on temporary basis and in course of time they were regularised. M. Subba Reddy, the appellant in that case was promoted temporarily on 31-1-1983 as ATM and regularised on 27-12-1986 confirmed on 1-4-1987 as ATM. direct recruits, to the post entered the above posts in 1988, 1990, etc. in the impugned integrated seniority list dated 10-11-1994, they have been placed below the direct recruits. The appellants contend that when their promotions were regularised, the direct recruits were not even borne on the cadre of ATMs/AMEs and, therefore, there was no reason for placing them below the direct recruits.
The Apex Court, by a majority of 2: 1, referred to the case of Aghor Nath Dey and held as under:
The appellants were promoted on temporary basis under Regulation 30 with the clear understanding that the period of officiation will not give them any right over direct recruits in future. It is for this reason that Regulation 30(6) states that if a temporary promotee is subsequently promoted in accordance with the regulations, his probation will commence in the higher category only from the date of subsequent promotions. For the same reason, Regulation 34 states that revertees shall be subsequently considered for repromotion against the quota of vacancies reserved for being filled by promotion.
x x x x x The ratio of the judgment of this Court in the case of Aghore Nath Dey is that the benefit of ad hoc or temporary service is not admissible, if appointment was outside the rules. Applying the ratio of the said judgment to the facts of this case, the benefit of temporary promotion to the appellants under Regulation 30 was not admissible to them for computation of seniority.
(d) In Union of India v. Dharam Pal, (2009) 4 SCC 170, the Apex Court has held as under:-
30. This Court in R.K. Mobisana Singh v. Kh. Temba Singh following the principles laid down by this Court in Direct Recruit as also Swapan Kumar Pal held as under: (R.K. Mobisana case):
39. Applying the principles of the aforementioned decisions to the facts of this case, we are of the opinion that although in terms of the office memorandum, no retrospective effect could be given to the order of regularisation passed in favour of the promotees, as in absence of any seniority rules operating in the field, the State was required to evolve a policy. It for its own reason did not do so.
40. The office memorandum of 1959 was applicable in a case of this nature. In some of the cases, promotion might have been given without following the Rules. When promotion is given only in the exigency of situation without following the Rules, the period cannot be counted towards seniority.
41. If they had been given regularisation with retrospective effect, the same by itself may not be a ground to apply the said order ipso facto for determining the inter se seniority. Seniority although is not a fundamental right but a civil right. Such a right of the direct recruits could not have been taken away without affording an opportunity of hearing to them.
42. It was obligatory on the part of the official respondents to take into consideration that the retrospective regularisation could be granted only when there exists such a rule. If the Rules were not followed at the time of grant of promotion, question of grant of regularisation with retrospective effect would not arise. Retrospective regularisation, whether in terms of the directions of the High Court or otherwise, thus, although could confer other service benefits to the officer concerned, but the same cannot be held to be of any assistance for reckoning seniority with retrospective effect. (emphasis supplied) Taking into account the above decisions of the Apex Court, we are of the considered opinion that there is no provision for regularisation with retrospective effect of the private respondents, and even if they are so regularized, the same could be for other purposes and not for the purpose of seniority as held in the case of R.K. Mobisana Singh v. Kh. Temba Singh, referred to in the decision in Dharm Pal (supra).
17. In view of the above, the OA succeeds to the extent that the regularisation of the private respondents, as contained in the impugned order at Annexure A-10 and A-11 are held valid only in so far as it confers other services to such regularised officers, but the same cannot be held to be of any assistance for reckoning seniority with retrospective effect. The applicant shall stand senior to such regualarized officers for the purpose of consideration to higher posts. No costs.
(S.P. Singh) (Dr. K.B.S. Rajan)
Member (A) Member (J)
Girish/-
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