Bombay High Court
Union Of India And Anr vs Ramesh Kumar Mishra on 16 November, 2016
Bench: Anoop V. Mohta
WP No.1098-08-924 1/6
Nalawade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITON NO.1098 OF 2008
1. Union of India
Through Secretary Railway Board,
Railway Board, Ministry of Railway,
Rail Bhavan, New Delhi.
2. General Manger,
Central Railway,
Head Quarter Office,
Mumbai CST,
Mumbai 400 001.
vs.
..Petitioners.
Ramesh Kumar Mishra,
Assistant Engineer (Horticulture),
Mumbai Division,
Central Railway, Mumbai.
..Respondent.
Mr. Suresh Kumar with Ms. Sangeeta Yadav for the Petitioners.
Mr. G.S.Walia for the Respondent.
CORAM :ANOOP V. MOHTA &
A.S. GADKARI, JJ.
DATE : 16th November, 2016
ORAL JUDGMENT: (Per ANOOP V. MOHTA, J.)
The petitioners have challenged order dated
3.8.2007 passed by the Central Administrative Tribunal,
Mumbai (CAT) whereby the respondent's original application
has been allowed thereby quashed and set aside order dated
11.12.2003 and directed the petitioner (respondent) to count
his period of services rendered on an ad-hoc basis towards the
seniority of Divisional Engineer ( Horticulture).
WP No.1098-08-924 2/6
The learned Tribunal has passed the operative
order as under:
"14. In this backdrop, we quash and set
aside the impugned order dated 11.12.2003
and direct the responders to treat the period
of ad hoc service as regular towards eligibility
for promotion to senior scale and accordingly
his date of promotion to Senior Scale will be
antedated and treated as 01.11.1996 instead
of 3.9.2002 with all consequential benefits.
15. The O.A. stands allowed in terms of
prayer clause 8(a) and (c). No order as to
costs."
2. Heard the learned counsel for the parties and read
and refer the Judgment of the Supreme Court in Direct
Recruitment Class II Engineering Officers' Association vs. State
of Maharashtra 1990(2) SCC 715.
3. The learned counsel for the petitioner submitted
that the respondent was appointed as Horticulture Inspector in
Grade Rs.250-380 (AS) on 9.11.1972 through direct
recruitment by the Railway Recruitment board and posted in
Mumbai CST. The respondent was put to officiate in grade
Rs.700-900 as Horticulture Inspector on 21.7.1978.
Notification was issued by the petitioners dated
5.12.1997 calling application from eligible candidates having
educational qualification as stated therein for selection for the
post of AEN (Horticulture). There was no response to the said
advertisement.
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The Railway Board was requested vide this
Railway's letter dated 14.1.1998 to relax the prescribed
qualification conditions.
4. Accordingly a notification with the approval of
CE/CPO was issued and selection was conducted for which only
the respondent was found eligible to appear for written test.
The respondent qualified in both written and viva versa. As a
result of the selection, the constituted selection board on
30.7.2002 recommended the name of the respondent and he
was placed on the panel for promotion to ex-cadre Group "B"
post (ex cadre post of AEN/horticulture) and an order was
issued clearly stating that the incumbent of the ex cadre post
AEN/Hort. would not be eligible for promotion to Group
"A"/Jr. scale of IRSE and he would have to get selected to the
regular Grup "B" post of AEN as per provision of statutory
recruitment for the post of Group "B" post of AEN for further
promoton to Group "A"/IRSE. (letter No. E(GP) 82/2/92 dated
23.8.2001).
5. The respondent has made a representation dated
11.3.2003 and 18.8.2003 to the petitioner which was replied
vide letter dated 11.12.2003. There was no positive order
passed.
The respondent had filed Original Application
NO.518 of 2004 before the Hon'ble Tribunal challenging the
impugned letter dated 11.12.2003.
6. There is no serious issue that the initial
appointment of the respondent was made by following the
procedure laid down by the rules by inviting application after
due advertisement and as no one else qualified and available
WP No.1098-08-924 4/6
ultimately the petitioner though appointed on ad-hoc basis but
continued his service uninterruptedly till the regularization of
the services in accordance with the rules. There is no serious
issue that the respondent has been working on the post being
qualified and eligible though appointed on ad-hoc basis. The
fact that he has been working on the post, continuously till the
date of the decision, not to have been over looked while
considering the future benefits including the promotion, if any.
Merely because he was appointed on the ad-hoc basis the
period of officiating service from the date of appointment till
regularization in our view ought not to have been dis-carded.
There is no dispute that once the appointment is made as per
the rules, all the relevant benefits including the seniority has
to be counted from the date of joining the service and not only
from the date of the confirmation unless it is provided in the
rules or regulations.
7. The submissions so made by the learned counsel
appearing for the petitioners challenging impugned order
referring to office order dated 1.11.1993 and/or rules related
regulations provided in manual and communication dated
5.12.1997 with regard to selection for the post of AEN
Horticulture including the communication dated 23.8.2001
whereby the condition of eligibility was prescribed in no way
are of any basis to interfere with the reasoned order passed by
the learned Tribunal. There is no specific provision read or
pointed out to show that the appointment so made by the
respondent was by not following the due procedure. The
uninterrupted continuity of service further support the case that
he was qualified and working on the post that eventually lead
WP No.1098-08-924 5/6
into regularizing his post. The impugned order of setting aside
the action of the petitioners is well within the frame of law and
record.
8. The relevant extract of the Judgment so cited by
the learned counsel appearing for the parties specifically Para
47 Clause (A) and (B) Direct recruitment Class II (supra) are
reproduced 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.
(B) If initial appointment is not made by following
the procedure laid down by the rules but the
appointee continues in the post uninterruptedly till
the regularization of his service in accordance with
the rules, the period of officiating service will be
counted."
9. This Judgment though on different facts but still
supports the case of the respondent and even in view of the
observations supports the impugned order so passed as we
have already noted that the initial appointment so made was by
following due process of law and the respondent was
appointed and allowed to work till the regularization of his
service. The Supreme Court has also considered the similar
WP No.1098-08-924 6/6
contentions so raised by the counsel for the parties in the
present case by observing Clause (A) & (B) of Para 47 of the
Judgment as reproduced. We are inclined to observe that this
Judgment covers the case of the respondent specifically in view
of the observations as made in Clause 47(B) as reproduced
herein above.
10. Therefore, taking over all view of the matter in the
present facts and in view of the observations so made by the
Hon'ble Supreme Court directly apply the position of law (cited
supra) to the present matter. As far as position of law is
concerned as the respondent's case falls within the ambit of
clause (B) we see no reason to disturb the findings so given by
the learned Tribunal. Even otherwise the respondent has been
working uninterruptedly and as appointed by following due
process of law cannot be denied all the benefits in accordance
with law, by taking into consideration the period of officiating
services.
11. After hearing the learned counsel appearing for the
respective parties and considering the rival contentions we are
inclined to dismiss the present petition as there is no case made
out of perversity or illegality which goes to the root of the
matter which requires High Court's interference in writ
jurisdiction.
12. Petition is therefore, dismissed. No costs.
(A.S.GADKARI, J.) (ANOOP V. MOHTA,J.)
