Bombay High Court
Dinesh Sadanand Sherla And 4 Ors vs The State Of Maharashtra And 4 Ors on 23 October, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-OS:17797-DB
1/40 Wp 3354-22.doc
ASHISH
SAHEBRAO
MHASKE
Digitally signed by
ASHISH SAHEBRAO
MHASKE
Date: 2024.10.25
10:12:12 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3354 OF 2022
Dinesh Sadanand Sherla and Ors .. Petitioners
Versus
The State of Maharashtra and anr .. Respondents
...
Ms.Deepali Bagla i/b Bagla & Associates, for the Petitioners.
Mr.Abhay Patki, Addl.G.P., for the Respondent- State.
Mr.R.S. Datar, for Respondent Nos.2 to 4 and 6.
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
RESERVED ON: 14th OCTOBER, 2024
PRONOUNCED ON: 23rd OCTOBER, 2024
JUDGMENT:
- (PER BHARATI DANGRE J)
1. The present Petition is filed by the Petitioners, five in
number working as Private Secretary/Private Assistants to the
Hon'ble Judges of the Bombay High Court, which seek the following
reliefs:-
"(a) That this Hon'ble Court be pleased to issue a writ of mandamus or
any other appropriate writ, order or direction in the nature of mandamus
calling for records and proceedings pertaining to the impugned actions of
the Respondents and after examining the validity, legality and propriety
thereof, condone the artificial/technical/notional breaks and their services
may be counted from the initial date of appointment i.e. 1 st September,
2004;
(b) That this Hon'ble Court be pleased to issue a writ of mandamus or
any other appropriate writ, order or direction in the nature of mandamus
calling for records and proceedings pertaining to the impugned inactions
of the Respondents and after examining the validity, legality and propriety
thereof, the Respondents be directed to provide consequential benefits i.e.
leave, GPF, Increments, Pension etc. as would be available to the
Petitioners on the date of their initial appointment i.e. 1 st September,
Ashish
2/40 Wp 3354-22.doc
2004;"
Pursuant to the amendment being permitted to be carried
out, the Petition also raise a challenge to an order dated 10/07/2023,
passed by the Principal Secretary, Law and Judiciary Department,
Mantralaya, Mumbai on the ground that it is erroneous and illegal.
2. In the Petition, the State of Maharashtra is impleaded as
Respondent No.1, whereas the Administrative Committee, City Civil
Court, Mumbai, along with the Registrar, Bombay City Civil Court,
are impleaded as Respondent Nos.2 and 3 respectively.
The Registrar (Personnel) Appellate Side, Bombay High
Court is impleaded as respondent no.4, whereas the Registrar General
of Bombay High Court is impleaded as Respondent No.6.
Respondent No.5, to the Petition is the Principal Secretary to the Law
and Judiciary Department, Mantralaya, Mumbai.
We have heard Ms. Deepali Bagla, for the Petitioners.
The Respondent Nos.1 and 5 are represented by Additional
Government Pleader, Mr. Abhay Patki, whereas Respondent Nos. 2 to
4 and the Respondent No.6 is represented by the learned counsel
Mr. R.S. Datar.
On completion of pleadings, in the proceedings before us
at the request of the respective counsel representing the Petitioners
and the Respondents, we issue 'Rule'.
By consent, Rule is made returnable forthwith and the
Petition is taken up for final hearing.
3. Before we deal with the rival contentions advanced on
Ashish
3/40 Wp 3354-22.doc
behalf of the counsel representing the adversary parties, we deem it
appropriate to cull out the necessary facts essential for determination
of the issues placed before us, for consideration.
The facts are collated on the basis of the pleadings in the
Petition and its annexures and also the affidavit-in-reply filed by the
Respondents.
The sequence and chronology of events is reproduced
below in seriatim, so as to maintain the continuity of the events.
a) The Respondent No.3, The Registrar, Bombay City Civil
Court, Mumbai, issued an advertisement on 8/07/2024, inviting
applications from eligible candidates for the post of Stenographers
(Higher Grade-HG) on ad-hoc basis on the establishment of City
Civil Court, Bombay.
The advertisement prescribed the Expected
Qualification, Age Limit and the Pay Scale applicable to the
said post, being Rs. 6500-200-10,500 plus allowance as per the
Rules.
The advertisement also contained Instructions to the
Candidates, and it specified that the posts of Stenographer (HG) are
purely on ad-hoc basis for 2 years, or for such period, as required,
and shall be terminated immediately on expiry of the scheme of Fast
Track Court.
The advertisement contemplated conduct of test and
interview in addition to the formal documentation which
contemplated an application to be preferred in the stipulated form to
be accompanied by the updated 'Resume' to be submitted for
Ashish
4/40 Wp 3354-22.doc
consideration within the prescribed time period.
b) Pursuant to the said Advertisement, Petitioners applied
for the post, since they fulfilled the criteria set out therein, and they
were called for Shorthand test, as the qualification prescribed for the
of the Stenographers (HG), required the candidates to possess the
English Shorthand with speed of 120 words per minute and English
typing with speed of 40 words per minute.
On clearing the Shorthand/Typewriting test in order to be
selected for appearing in the interviews, all the Petitioners qualified
themselves and they were selected to occupy the post of
Stenographers (HG) in terms of the Office Order No.49 of 2004,
dated 1/09/2004.
c) The Office Order No.49 of 2004, issued under the
signature of the Principal Judge, Bombay City Civil Court, Greater
Mumbai, declared that 12 candidates were appointed to the post of
Stenographers (HG) purely on 'Ad-Hoc' basis for Fast Track Court at
Sewree, Bombay, with effect from 1/09/2004 (B.N), until further
orders.
The appointment order stipulated as under:
"All the aforesaid appointments are made Purely on Ad-Hoc basis
initially for the period of 3 months, which may be extended until
continuation of the Fast Track Court Scheme, subject to their work,
conduct, behaviour and attendance being found satisfactory.
All the aforesaid Candidates shall not exercise their lien or claim
on the vacant post or future vacancies on the establishment of Bombay
City Civil and Sessions Court, or Fast Track Court at Sewree, Bombay"
d) The Petitioners resumed their duties from 1/09/2004,
in the Fast Track Court, Sewree, but they were given
Ashish
5/40 Wp 3354-22.doc
notional/artificial/technical breaks and it is their contention that this
was done deliberately to deprive them the benefits of permanency
and the pensionary benefits, and according to the Petitioners, the
notional break of one day after every three months was given from
1/09/2004, till 17/07/2006, and they were given sixteen breaks. A
copy of statement of technical break given to the Petitioners
appointed on 'Ad-hoc' basis is annexed along with the Petition.
It is the pleaded case in the Petition, that the Petitioners
were asked to attend the Office of the Respondent No.2, on the days
shown to be on break, without marking their presence in the muster
roll maintained in the Office, and the break was only on paper to
create record, so as to deprive the Petitioners from the effect of
permanency and the salaries of the Petitioners on the days, when such
artificial/technical break was given were also deducted.
e) The Petitioners repeatedly made representations to the
Principal Judge, City Civil and Sessions Court, Mumbai, through the
In-charge and Administrative Judge, City Sessions (Fast Track)
Court, Sewree, Mumbai, on 15/11/2007, 24/06/2008, 2/04/2009,
4/02/2010, 22/10/2013, 15/11/2013, and 5/03/2014, praying for
condonation of the artificial breaks in their service and regularizing
their services, so that they would avail the benefit of permanency
including the benefits of leave, GPF, increments, pension, etc.
f) The representations made by the Petitioners were taken
up for consideration in the meeting of the Advisory Committee held
on 11/07/2008, for considering the grievance made by 13
Stenographers, for making their appointment regular and for
consideration of the office proposal for filling regular vacancies.
Ashish
6/40 Wp 3354-22.doc
We would be referring to the said Minutes in detail,
however, it is the contention of the Petitioners that a decision was
taken by the committee to inform the High Court about regularization
of services of the 13 employees.
The Minutes of the Meeting are annexed at Exhibit G to
the Petition.
g) In terms of the said Minutes of the Meeting held on
11/07/2008, Officer Order No.55 of 2008 was issued under the
signature of the Principal Judge, Bombay City Civil Court and
Sessions Judge, Greater Mumbai, thereby declaring the
"Stenographer (HG)" working on Fast Track Court at Sewree,
Bombay to be appointed on the establishment of Bombay City Civil
and Sessions Court, Bombay, on purely temporary basis with effect
from 14/07/2008 (B.N) until further orders.
The order clarified that the appointments are given on
purely temporary basis subject to their work, conduct, behaviour and
attendance in future being found satisfactory and if not, their services
were liable to be terminated.
By Office Order No.76 of 2009, the Petitioners were
declared to have completed their probationary period satisfactorily
and their appointments were continued from the date mentioned in
Column No.6 of the said order.
h) Since then, the Petitioners continued to agitate their
grievance by preferring representations, praying for continuity of
their service.
i) In or around 2013, upon occurrence of the vacancies in
Ashish
7/40 Wp 3354-22.doc
the Bombay High Court, the Petitioners applied for the post of
Personal Assistant and after successfully clearing the recruitment
process came to be appointed as Personal Assistant to the Hon'ble
Judges, in Bombay High Court.
j) The representation preferred by the Petitioners was
considered by Respondent No.2 and the Petitioners sought the
Minutes of the Meeting under the Right to Information Act, 2005,
which revealed, that their request was rejected, but, on humanitarian
consideration, the Petitioners were permitted to furnish citations.
Pursuant thereto, the Petitioners submitted the written
submissions on 4/04/2018, through the Respondent No.3, and they
reiterated their request by relying upon Rule 48 of the Maharashtra
Civil Services (Pension) Rules, 1982 for condoning the interruption
in their service, while they were in service of Respondent No.2, since
the break in the service was beyond their control and they claimed
that they have been denied equal treatment and parity with the other
candidates, who were appointed on the same date under the Fast
Track scheme.
k) On 27/09/2018, the Principal Judge, City Civil and
Sessions Court, Mumbai, requested the Law and Judiciary
Department, to consider the aforesaid circumstances and favorably
recommended condoning interruption in services of the Petitioners
and regularize their services, so as to entitle them to avail the
pensionary and other consequential benefits with the consent of the
Finance Department and the General Administration Department,
Mantralaya, Mumbai.
Ashish
8/40 Wp 3354-22.doc
l) On 28/09/2020, the Respondent No.3 shared with the
Petitioners the letter addressed by the Law and Judiciary Department
on 18/09/2020, stating that in terms of the Government Resolution
dated 31/10/2005, issued by the Finance Department, the employees
who were in service as on 1/11/2005, or thereafter were covered by
the Defined Contribution Pension Scheme (also known as National
Pension Scheme) and as the applicants, who were appointed after
1/11/2005, they would fall in its ambit.
m) Being aggrieved by the said communication, the
Petitioners instituted the Writ Petition on 19/04/2022.
4. It is to be noted that during the course of hearing of the
Petition on 21/06/2023, this Court by order dated 21/06/2023,
directed the Respondent No.5, The Law and Judiciary Department, to
consider their recommendation dated 27/09/2018, forwarded by the
Principal Judge, City Civil and Sessions Court, Mumbai, and
adjudicate upon the same within a period of three weeks.
The Petitioners were served with an intimation for
attending the hearing scheduled on 26/06/2023, and it is the specific
case of the Petitioners that they pleaded before the Respondent No.5,
by relying upon various documents and judgments, however on
10/07/2023, the Principal Secretary, Law and Judiciary Department,
adjudicated upon the recommendation in their favour, but did not
accept the grievance of the Petitioners and recorded that the
Petitioners were appointed on regular posts only in the year 2008 and
as per Rule 2(2) of the Pension Rules, 1982, they are not applicable
to the Government Servants, who are recruited on or after 1/11/2005,
and even assuming that the Rules are applicable, Rule 48 of the
Ashish
9/40 Wp 3354-22.doc
Pension Rules, 1982, which provide for condonation of interruption
in service, is not applicable to the case of the Petitioners. Expressing
agreement with the remarks of the Finance Department, that the
question of condoning the breaks in ad-hoc services of the
Petitioners, prior to their regular appointment do not arise, the
Principal Secretary and R.L.A., by order dated 10/07/2023, refused to
indulge the Petitioners.
Challenge is raised to this order (Exhibit S) by inserting
additional pleadings and claiming relief to that effect.
5. We have heard Ms. Bagla, representing Petitioners, who
has pleaded the case of the Petitioners by submitting that the
Petitioners were appointed pursuant to an advertisement issued on
8/07/2004, and though it advertised the post of Stenographers (HG),
purely on adhoc basis, the advertisement strictly stipulated the
essential qualifications for a regular post of Stenographers (HG) and
on satisfying the eligibility criteria, including the educational
qualifications, the Petitioners were shortlisted and were subjected to
process of interview and only thereupon, they were issued with the
orders of appointment. She do not dispute that the appointment was
on 'ad-hoc' basis for Fast Track Court, Sewree, initially for period of
three months, but according to her it also stipulated that it may be
extended until continuation of the Fast Track Court's scheme, subject
to their performance.
According to Ms. Bagla, on being issued with the orders
of appointment, the Fast Track Court, covered by Central
Government Scheme continued to be so governed till it was
transferred to the State Government and therefore, even the
Ashish
10/40 Wp 3354-22.doc
appointment of the Petitioners continued, but in order to deprive them
of the benefit of regularization, every two and half month, one day
break was given. She would submit that this artificial break was only
on paper as the services were taken from the Petitioners on this day,
though the salary was denied to them, and despite their continuation
on 'adhoc' basis, 16 such breaks were suffered by them. It is also
submitted by her that the termination notice was issued to the
Petitioners on completion of two and half month, and a fresh
appointment order was issued, by giving break of one day and the
chart of the Date of Appointment/ Date of break/ Date of
Reappointment is part of the Petition.
6. According to Ms. Bagla, pursuant to the representation
of the Petitioners, to do away with the injustice caused to them, on
11/07/2008, the Advisory Committee of the City Civil Court,
recommended their case for absorption, by recording that the persons,
who are appointed on ad-hoc basis had undergone regular process of
recruitment and when regular vacancies for regular court occur, they
can be absorbed and therefore, the Committee decided to treat the
appointments of the Petitioners as regular appointments though on
ad-hoc basis, and without being given any break in service.
It is pursuant this recommendation to give regular
appointments to the employees at Serial nos.1 to 11 in the
submission, which included the present Petitioners, all of them were
issued an appointment order on the establishment of Bombay City
Civil and Sessions Court, on purely temporary basis with effect from
14/07/2008, and on completion of probationary period, their services
were confirmed.
Ashish
11/40 Wp 3354-22.doc
The counsel would submit that no selection process was
adopted before they could be absorbed in this service. Ultimately, the
Petitioners were recruited in the establishment of the High Court, but
their grievance pertain to the non-applicability of the old pension
scheme to them and the rejection of their request to consider them
eligible thereunder, on the recommendation of the Finance
Department, which has opined that the Old Pension Scheme will not
govern them, as they are appointed after 2005 i.e. on 14/07/2008, is
considered to be fresh appointment, and this is the cause of action for
the Petitioners to approach this Court.
7. The learned counsel has relied upon various authoritative
pronouncements and also placed before us the scheme of the Fast
Track Court, so as to highlight the nature of appointments effected
under this scheme, and she would place reliance upon the decision of
the Apex Court in case of K. Anbazhagan and anr. v. The Registrar
General High Court of Madras and anr.1, and her submission is that
though this decision is in the backdrop of nature of appointment of
the Judicial Officers under the said scheme, but the ratio flowing
therefrom definitely applies to all the employees recruited on the Fast
Track Scheme.
By relying upon the decision in case of Rattan Lal & Ors
vs. State of Maharashtra2 , she has attempted to canvass that it is not
open for the Government to follow the policy of 'ad-hocism' as it
amount to breach of Articles 14 and 16 of the Constitution of India
and the Supreme Court had deprecated the situation, where the
teachers were continued on ad-hoc basis for considerable long period
1 (2018) 9 SCC 293
2 AIR (1985) SCC (4) 43
Ashish
12/40 Wp 3354-22.doc
of time. In addition, she has also drawn our attention to the distinct
terminologies 'ad-hoc appointments', 'fortuitous appointments', and
'stop gap appointment' by relying upon the decision in case of The
State of Gujarat and ors vs. Talsibhai Dhanjibhai Patel 3 and the
decision in case of Ajaib Singh vs. Punjab State and ors.4
In addition, the learned counsel has also taken us
through the relevant provisions of the Maharashtra Civil Services
Conduct Rules as well as Pension Rules (Pension Rules), 1982 and in
specific Rule 30 thereof, which has set out to what would amount to
qualifying service of a Government Servant, as it would even count
the service on probation along with all the leave availed.
By inviting our attention to Rule 48, which permit
condonation of interruption in service, subject to the stipulation
therein, it is the submission of Ms. Bagla that the breaks in the
service of the Petitioners were beyond their control, and it did not
exceed more than a year and subject to the fact that the period of
interruption condoned shall not be counted as qualifying service, the
Petitioners are entitled for computing the past service rendered by
them by condoning the break. She has also placed reliance upon a
Government Resolution dated 19/09/1975, which has considered the
issue of extending the benefits of permanency to temporary
government servant. Apart from this, she would also place reliance
upon the Circular issued by the Finance Department of Government
of Maharashtra on 12/01/2007, offering clarifications, as regards the
applicability of the New Defined Contribution Pension Scheme,
which stipulate that the government servant, who are already in
3 Petition for Special Leave to Appeal (C )No.1109/2022
4 RSA No. 5019 of 2003 ( In the Punjab and Haryana High Court at Chandigarh)
Ashish
13/40 Wp 3354-22.doc
service prior to 1/11/2005, on a pensionable establishment and
applied for the post on pensionable establishment in the same or other
Department and was subsequently appointed on new post on or after
1/11/2005, would also be covered under the Maharashtra Civil
Services (Pension Rules), 1982, and the General Provident Fund
Scheme provided, the condition stipulated therein is satisfied and it
has contemplated the following four conditions:-
"i) The earlier appointment of the Government servant should be a
regular appointment i.e. he should have been appointed after fulfillment
of all the requirements (e.g. age-limit, educational qualification,
appointment through Maharashtra Public Service Commission/Selection
Board etc.,) prescribed under the recruitment rules for the concerned
post.
ii) The Government servant should have completed the probation
period of the earlier post satisfactorily.
iii) The government servant should have applied for the new post
through proper channel/with proper prior permission of the
administrative authority concerned.
iv) The period of break, if any, in service in between the above two
appointments, should not be more than the joining time permissible under
the rules of transfer."
It is therefore, her submission that since the Petitioners
satisfied all the stipulations above, there is no difficulty in including
them in the New Defined Contribution Pension Scheme.
8. Claiming parity with some other employees similarly
situated, she has placed reliance upon the Minutes of the Meeting of
Welfare Committee held on 18/11/2011, in the Chamber of the
Hon'ble the Chief Justice, which had granted approval to the select
list prepared for the post of Senior Private Secretary to the Hon'ble
Judges on establishment of Aurangabad Bench of the Bombay High
Court, which has accepted the request of the applicants to count their
past service rendered on the establishment of City Civil Court,
Ashish
14/40 Wp 3354-22.doc
Bombay, for pension purpose only by condoning the break in service
and by granting them extraordinary leave for the period mentioned as
per the provisions of Rule 47(2) of the Maharashtra Civil Services,
(Pension) Rules, 1982. The learned counsel would thus submit that
there is no justification in denying the benefit to the Petitioners.
9. Contesting the submissions advanced on behalf of the
Petitioners, Mr. Patki, the Additional Government Pleader, has
assertively submitted before us that the Fast Track Courts, were
established with a specific purpose of expeditious disposal of cases in
limited period of time, and in this scheme, the Judges were absorbed
from the existing Courts and since the scheme contemplated
appointment of staff, purely on ad-hoc basis the staff was recruited,
which included the persons like the Petitioners, who were appointed
as Stenographers, but their appointment was merely a stop gap
arrangement, in absence of the Rules framed for recruiting them.
He would submit that it is not in dispute that the
Petitioners were absorbed in 2008, but it is his specific submission,
that their appointment has to be considered from this date, as they
were earlier working on ad-hoc basis, and there were no regular posts
on the establishment of the Fast Track Court and the Petitioners being
aware of this position had accepted the appointment with open eyes
and now they cannot seek continuity of service.
According to Mr. Patki, on expiry of the definite period,
their services were terminated, and after giving one day break, they
were issued the fresh appointment orders and this mechanism was
adopted from 2004 to 2008.
Ashish
15/40 Wp 3354-22.doc
He would justify the impugned order at Exhibit (S)
passed by the Principal Secretary, and R.L.A., on 10/07/2023, by
submitting that the papers on the file reflected that the proposal was
received for condonation of the breaks occurred during the ad-hoc
services, and it was forwarded to the Finance Department for its
approval. The Finance Department asked the Law and Judiciary
Department, to seek opinion/remarks of the General Administration
Department, which opined that the temporary appointment, prior to
regular appointment is fortuitous and the Department shall verify
whether the appointment is fortuitous or regular and thereafter take a
decision.
Thereafter, the proposal came to be resubmitted to the
Finance Department and it clearly opined that as per G.R. dated
31/10/2005, for the appointments made on or after 1/11/2005, DCPS
(New Scheme) is made applicable and as the services of the
employees are regularized after 1/11/2005, the provisions of this G.R.
would govern them.
10. According to Mr. Patki, representing the Respondent
No.5, the appointment of the Petitioners between 2004 to 2008 was
purely on ad-hoc basis and they were given regular appointment only
in the year 2008, and therefore, there is no question of applicability of
Rule 48 of the Pension Rules, 1982 to them, as it is a provision for
condonation of break in regular service and not applicable to ad-hoc
service. In addition, he has submitted that the consultation with the
Finance Department was must, in view of clause no. 5, in the table to
the Circular dated 3/11/2008, issued by the Finance Department to
read with clause 48 of the instructions, regarding the business of the
Ashish
16/40 Wp 3354-22.doc
Government, issued under Rule 15 of the Maharashtra Government
Rules of Business made under Article 166 of Constitution of India.
He would further submit that the Law and Judiciary Department,
while passing the impugned order, has considered the rulings, which
were cited before it, and he would also place reliance upon the
affidavit filed by the Legal Advisor-cum-Joint Secretary in the Law
and Judiciary Department, justifying it's action, which is backed by
the decision of the Finance Department and the GAD. It is thus the
submission of Mr. Patki, that the case of the Petitioners would fall
within the New Defined Contribution Pension Scheme, which is
made applicable to the employees, who are being appointed on or
after 1/11/2005, and since the Petitioners were appointed after this
date, they would be governed by the DCPS.
He has placed reliance upon the following decisions in
support of his submission.
1. Direct Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra5
2. Ch. Narayana Rao v. Union of India6 .
3. Brij Mohan Lal v. Union of India7
4. Rashi Mani Mishra v. State of U.P.8
As regards the Fast Track Court's scheme, he has
invoked the principle laid down by the Apex in case of V. Venkata
Prasad v High Court of A.P.9 and in case of Dinesh Kumar Gupta v.
5 (1990) 2 SCC 715
6 (2010) 10 SCC 247
7 (2012) 6 SCC 502
8 (2021) 17 SCC 399
9 (2016) 11 SCC 656
Ashish
17/40 Wp 3354-22.doc
High Court of Rajasthan10 (2020) 19 SCC 604.
11. It is undisputed fact that the Petitioners came to be
appointed on ad-hoc basis as Stenographers (HG) pursuant to an
advertisement issued, inviting applications from the candidates
eligible for the post of Stenographers on the establishment of City
Civil Court, Bombay.
The eligibility prescribed was graduation from any
University, with preference to law graduates and passing of
Government Commercial Certificate Examination or examination
conducted by the Government Board or ITI for English Shorthand
with speed of 120 words per minute, and for English Typing with
speed of 40 words per minute. In addition, the eligibility criteria also
required certificate course/diploma or degree for any duration in
computer operating conducted by DOEACC, University, C-DAC,
MS-CIT.
The advertisement clearly stipulated that the
appointment to posts of Stenographers is purely on 'Ad-hoc' basis for
two years or such period, as required and to be terminated
immediately on expiry of scheme of Fast Track Court.
It is also not in dispute that since the Petitioners cleared
the threshold test of eligibility, they were called for screening and
were also interviewed and were declared successful.
Pursuant to the selection process, and the
recommendation of the selection committee, the Petitioners were
issued appointment orders with effect from 1/09/2004, appointing
10 (2020) 19 SCC 604
Ashish
18/40 Wp 3354-22.doc
them on ad-hoc basis and it stipulated as under:-
"All the aforesaid appointments are made Purely on Ad-Hoc basis
initially for the period of 3 months, which may be extended until
continuation of the Fast Track Court Scheme, subject to their work,
conduct, behaviour and attendance being found satisfactory.
All the aforesaid Candidates shall not exercise their lien or claim
on the vacant post or future vacancies on the establishment of Bombay
City Civil and Sessions Court, or Fast Track Court at Sewree, Bombay"
The Petitioners continued to hold the said post from
1/09/2004, but with an artificial break in their service, being created
by issuing a termination order at the end of 2 ½ months of the service
tenure to be followed by a fresh order of reappointment and this
exercise was repeated on 16 occasions, the last order of
reappointment being issued on 15/05/2008.
12. The Petitioners being aggrieved by the arbitrary act of
causing breaks in their service and on every occasion, being made to
undergo the rigmarole of Termination and Reappointment, preferred
representations for regularization of their service, before the City
Civil and Sessions Court, Greater Mumbai, on whose establishment
they were appointed and vide the representation dated 24/06/2008,
they made grievance about, they not being held eligible to the
benefits available to the permanent employee, though they discharged
similar work of permanent employees, but were deprived of earned
leave, medical leave, provident fund, increment, etc. The
representation also expressed an apprehension that if they are
continued as ad-hoc Higher Grade Stenographers for number of
years, they may even become age bar for similar appointments and
will be deprived of benefits of permanency, despite they putting their
Ashish
19/40 Wp 3354-22.doc
hard earned efforts, in discharging their duties efficiently and
diligently. It was thus prayed that their grievance be considered
sympathetically by condoning the artificial breaks and conferring the
benefits as admissible to permanent employees.
13. Repeated representations made by the Petitioners
prompted the Advisory Committee to consider the representations
made by 13 Stenographers seeking regular appointment on the
regular vacancies and the Minutes of Meeting at Exhibit-G of the
Petition reflect the grievance and the decision taken upon it.
The Minutes record that the Stenographers had
undergone regular recruitment process, but were appointed on ah-hoc
basis. It further record that ad-hoc posts of Additional District Judges
and 12 posts of ad-hoc Stenographers were created in the year 2004,
for Fast Track Court at Sewree and similar number of Clerks,
Peons/Hamals were created on ad-hoc basis, to implement the Central
Government scheme, which was initially floated for 5 years. While
the State Government was implementing the scheme, it sanctioned
ad-hoc posts and granted extension from year to year basis.
The committee being conscious of the factual scenario,
recorded thus:
"In view of the said representation received from the Stenographers, this
committee has reviewed the matter. This committee is of the opinion that
though the ad-hoc posts of Judicial Officers were created and for making
the courts functional some ad-hoc posts of staff were created,
appointment like daily wages workers could not have been given to the
staff. It is true that the ad-hoc posts of Judges will continue as long as
there is sanction to such post of the State Govt. In view of this fact, only
condition that could have been put at the time of appointment of staff
members was that their services were liable to be terminated after the
expiry of the period fixed by the Govt. for such ad-hoc posting. No other
condition could have been fixed by this office. Further, many regular
employees of this office are required to work even in ad-hoc courts. The
Ashish
20/40 Wp 3354-22.doc
persons who are appointed on ad-hoc basis have undergone regular
process of recruitment and so when regular vacancies for regular court
occurs, these employees can be absorbed as against the vacancies which
would occur for regular post. In view of this fact, the committee has
decided to treat appointments to these posts as regular appointment
though on ad-hoc basis. These employees need not be given break as was
directed by the previous advisory committee. Only condition that can be
put in respect of these employees is that their services can be terminated
when the posts of Judicial Officers (on adhoc basis) are not sanctioned in
future and the practice of ad-hoc Judges is discontinued."
14. In conclusion the committee recommended thus:-
"...So, the committee has unanimously decided to give regular
appointments to employees at Sr. Nos.1 to 11 in the submission prepared
by the office. It was submitted by the Registrar that the employees are
arranged in the order of merit and as prepared by the previous advisory
committee. In view of this fact, appointments are to be given to employees
at Sr. Nos. 1 to 11. It was informed to the committee that one
stenographer is due to retire on 31-7-2008. Appointment to employee at
Sr. No.12 Mrs. Jambhale is to be given after retirement of the said
stenographer and similarly when any other vacancy arises the
appointment is to be given to employee at Sr. No. 13 Ms. Trupti S.
Gudekar.
As regular appointment cannot be given to employees at Sr. No. 12
and 13 for the present, the committee has decided to stop the practice of
giving break of these employees in future. The committee has decided to
inform the Hon'ble High Court about the decision taken by the committee.
The aforesaid circumstances show that service benefits were
wrongly denied to aforesaid employees. They could not get annual
increment, leave etc. in view of the break and practice which was adopted
by the office. It is informed that the break was for one or two days. In the
case of employee like Prajakta Vartak, absence of 135 days also is to be
kept in mind. All these things can be regularized and the period of
absence can be treated as leave period in future. This committee has
decided to inform the Hon'ble High Court about regularization of
services of these employees."
15. It is in furtherance of this decision, orders were issued in
favour of the Petitioners appointing them on the establishment of
Bombay City Civil and Sessions Court, Mumbai with effect from
14/07/2008, and it contained a reference of the Minutes of the
Meeting of the Advisory Committee held on 11/07/2008, as well as
Ashish
21/40 Wp 3354-22.doc
the Government Resolution dated 15/06/2006.
It is evident that though the Office Order No.55 of 2008
has used the word 'Appointed', the recommendation of the Advisory
Committee was for absorption of their services in the wake of the
vacancies, as their appointment was already on the establishment of
Bombay City Civil and Sessions Court, but they were assigned to the
Fast Track Court, Sewree.
It is also not in dispute that upon satisfactory completion
of probation period, a separate order was issued by Order No.76 of
2009, and the services of the Petitioners were continued as
Stenographers (HG).
16. The resentment of the Petitioners, now is about
condonation of the technical break of one day, in their appointment
on ad-hoc basis from the year 2004, till their appointment on the
regular posts on 14/07/2008, and it is this request, which was turned
down by the Law and Judiciary Department, on two occasions; firstly
on 18/09/2022, which was communicated to the Petitioners through
the In-charge Registrar on 20/09/2022, and secondly, when this Court
directed its reconsideration of the decision being taken on
10/07/2023.
17. We have perused the aforesaid decision, which has
basically reasoned the rejection, on the ground that the initial
appointment of the Petitioners was on ad-hoc basis and since the
regular appointment of the Petitioners is after 1/11/2005, they will be
governed by the Defined Contribution Pension scheme as per the
Government Resolution dated 31/10/2005, which is made applicable
Ashish
22/40 Wp 3354-22.doc
to the government employees in service as on 1/11/2005 or appointed
thereafter.
The ground on which there is a refusal to condone the
break in service, as requested under the Rule 48 of the Maharashtra
Civil Services (Pension Rules), is that the break had occurred, while
the Petitioners were not in regular service, holding a regular post, but
they were on ad-hoc basis, and hence the said benefit cannot be
extended to them.
18. It is in the wake of the aforesaid reasoning of the
Respondent No.5, while the Petitioners are kept away from the
benefit of applicability of the regular pension service, we must
examine the nature of their appointment in the year 2004, as though it
is not in dispute that the appointment order clearly spell it out to be
an 'Ad-hoc' appointment.
It is worth to note that the appointment of the Petitioners
was on ad-hoc basis, to cater to the judicial officers appointed to man
the Fast Track Court, which were established under the 11 th Finance
Commission, with a laudable object of ensuring speedy justice, and
fund was allocated for setting up 1734 Courts in various States to
deal with long pending cases in the Sessions Court and pursuant to
this allocation of funds, the State Governments were expected to take
necessary steps for its establishment.
The Finance Commission has suggested that the State
may reconsider reemployment of retired Judges for limited period for
disposal of the pending cases and it is in the case of Brij Mohan Lal v.
Union of India (supra), the issue pertaining to the Fast Track Courts
Ashish
23/40 Wp 3354-22.doc
came to be decided and with regard to the recruitment on the Fast
Track Court, certain directives were issued about the modality to be
followed for appointing the Judges.
It contemplated ad-hoc promotions from amongst the
eligible judicial officers, while the second option made available was
appointment to be given to the retired Judges with good service
record and with judicial acumen.
One important direction contemplated that the persons
appointed under the Scheme will be governed by the service Rules
and Regulations, which are applicable to the members of the Judicial
Service of the State of equivalent status. Accordingly, the Scheme
was implemented in various States.
19. An issue cropped up as regards appointment of the
judicial officers in the Fast Track Court, on the recommendations
received from the High Court Madras, when the Government of
Tamil Nadu granted sanction to various posts, which included the
posts of District Judge (Additional District Judge cadre), the
Translator, Steno-Typist Assistant, Office Assistant etc.
The two appellants, who were practicing Advocates,
fulfilling the eligibility criteria, submitted their applications and their
names were recommended to be appointed as Additional District and
Sessions Judge (Fast Track Court) on ad-hoc basis and the question
arose whether their appointments were in the 'pensionable
establishment' as when the Petitioners made a claim before the High
Court, for conferring the benefit of pension, it was rejected by the
High Court by holding that the appointments of the appellants was
Ashish
24/40 Wp 3354-22.doc
on contract basis.
When the issue came up for consideration before the
Apex Court in case of K. Anbazhagan (supra), it was noted that the
expression 'pensionable establishment' is not defined under the 1978
Rules, but the term non-pensionable establishment find the mention
in the Rules, indicating that service paid for from a local fund does
not qualify for pension and it is 'non-pensionable establishment'.
Recording that the payment of salary to the appellants
were made from the same sources by which other Additional District
Judges and other Judicial Officers of the State were being paid, it was
concluded that there is no indication from any of the material
produced, that the appellants were appointed on any different
establishment than the judicial establishment of the District, and
therefore, it was held that the appointment of the appellants was on
'pensionable establishment'
20. Dealing with the second issue, that the appointments of
the appellants were contractual appointments, since they were on ad-
hoc basis, their lordships of the Apex Court concluded thus:
[
"34. In service jurisprudence, the appointments are made by the
employer with different nomenclature/characteristics. Appointments are
made both on permanent or temporary basis against permanent post or
temporary post. The appointment can also be made on ad hoc basis on
permanent or temporary post. There is one common feature of
appointments of permanent, temporary or ad hoc appointment i.e. those
appointments are made against the post whether permanent or temporary.
On the contrary, for contractual appointment, there is no requirement of
existence of any post. A contractual appointment is not normally made
against a post. Further, contractual appointments are also not normally
on pay scale. On the mere fact that the advertisement as well as the
appointment was made initially for a period of five years, the nature of
appointment of the appellants cannot be termed as contractual
appointment. h When a government servant is contemplated to hold a
certain post for a limited period it is a tenure post.
Ashish
25/40 Wp 3354-22.doc
35. The Fundamental Rules of the Tamil Nadu Government define
"tenure post". Fundamental Rule 9(30-A) defines the "tenure post" in the
following manner:
"9. (30-A) "Tenure post" means a permanent post which an individual
government servant may not hold for more than a limited period."
36. The fact that the advertisement limited the appointment for a
period of five years only because the posts were contemplated for five
years only, the appointment of the appellants at best can be said as
"tenure appointment". Although temporary, ad hoc and contractual
appointments are used in contradiction to a regular and permanent
appointment but between ad hoc appointment and contract appointment,
distinction is there in service jurisprudence and both the expressions
cannot be interchangeably used. When the advertisement against which
the appellants were appointed and the appointment order mentions the
appointment as ad hoc appointment, we cannot approve the view of the
High Court that the nature of the appointment of the appellants was only
a contractual appointment."
In the scheme of the Fast Track Courts, the Apex Court
has clearly concluded that the appointment of the Additional District
Judge (Fast Track Court) on ad-hoc basis for a stipulated period,
though mentioned it to be ad-hoc appointment, it cannot be said to be
merely contractual appointment.
21. The next question that was also determined, in the very
same decision was whether the service rendered by the judicial
officers as Fast Track Court Judges, is liable to be counted for their
pensionary and other benefits, as they subsequently joined the regular
judicial service and reliance was placed upon the earlier decision in
case of Mahesh Chandra Verma vs. State of Jharkhand11 , where it
was specifically held as under:-
"16. We believe that it is a matter of great regret that these appellants
who have performed the functions of a Judge to the satisfaction of the
competent authorities should be deprived of their pension and retiral
benefits for this period of service. The appellants were not pressing before
us any case of seniority over any person who may have been recruited
subsequently, nor for any other benefit. In fact, we had made it clear to
the appellants that we are only examining the issue of giving the benefits
11 (2018) 7 SCC 270
Ashish
26/40 Wp 3354-22.doc
of their service in the capacity of Fast Track Court Judges to be counted
towards their length of service for pensionary and retiral benefits. To
deny the same would be unjust and unfair to the appellants. In any case,
keeping in mind the spirit of the directions made under Article 142 of the
Constitution of India in Brij Mohan Lal and in Mahesh Chandra Verma,
the necessary corollary must also follow, of giving benefit of the period of
service in Fast Track Courts for their pension and retiral benefits. The
methodology of non-creation of adequate regular cadre posts and the
consequent establishment of Fast Track Courts manned by the appellants
cannot be used as a ruse to deny the dues of the appellants.
18. The position in respect of the appellants is really no different on the
principle enunciated, as there was need for a regular cadre strength
keeping in mind the inflow and pendency of cases. The Fast Track Court
Scheme was brought in to deal with the exigency and the appellants were
appointed to the Fast Track Courts and continued to work for almost
were part of the initial select list/merit list for recruitment to the regular a
decade. They cadre strength but were not high enough to be recruited in
the existing strength. Even at the stage of absorption in the regular cadre
strength, they had to go through a defined process in pursuance of the
judgment of this Court and have continued to work thereafter.
19. We are, thus, unhesitatingly and unequivocally of the view that all
the appellants and Judicial Officers identically situated are entitled to the
benefit of the period of service rendered as Fast Track Court Judges to be
counted for their length of service in determination of their pension and
retiral benefits."
Drawing benefit from the aforesaid observation, where
the appellants were picked up from the category of practicing
lawyers, the following inference was drawn:
"58. Although in the above case of Mahesh Chandra, Fast Track
Court Judges were ultimately absorbed in the regular cadre strength but
the fact that period of services as Fast Track Court Judges had been
directed to be added for their pensionary benefits, does support the claim
of the appellants in the present case"
22. The case of the Petitioners definitely falls within the
exposition of the law, in the case of Anbazhagan (supra) as we find
them to be similarly situated as they were recruited for the specially
created 'Fast Track Courts', with an avowed purpose of expeditious
disposal of pending cases, and the Judicial Officers and other staff
was recruited/promoted, to assist them in the discharge of their
duties. The Petitioners were recruited in this Scheme, though their
Ashish
27/40 Wp 3354-22.doc
orders of appointment stipulated it to be 'ad-hoc', but at the same
time, it must be noted that the advertisement gave a clear indication
that the post of Stenographers are purely on ad-hoc basis for two
years or such further period, as required, and shall be terminated
immediately on expiry of scheme of Fast Track Court.
The appointment order issued to the Petitioners indicated
it to be period of two years, which was permitted to be extended until
continuation of the Fast Track Courts Scheme, and it is not in dispute
that the Scheme was continued by the State Government and even as
on date, it remains in force though under a distinct caption of
'National Mission for Safety of Women' by creating 138 special Fast
Track Courts to deal with crime against women and children to which
the Government of Maharashtra, through its Law and Judiciary
Department, has accorded its approval vide resolution dated
4/03/2020.
23. Coming to the objection raised by the State
Government, as to the appointment of the Petitioners being effected
on 'ad-hoc' basis, we repeatedly asked Mr. Patki, as to why the
appointments were made on ad-hoc basis and his response is, since
the recruitment rules for appointing the staff for Fast Track Court was
not yet formulated, and we queried with him as to whether the Rules
are now framed and we are informed by Mr. Datar representing the
High Court, that the Rules were never framed.
24. In any case, we find that the appointment of the
Petitioners is not a back door entry, as they were appointed through a
regular process of selection, as they were found to meet the eligibility
requirement for appointment of the post of Stenographers (HG) and
Ashish
28/40 Wp 3354-22.doc
that is the reason when they were appointed (absorbed) on the regular
post of Stenographers in the City Civil Court, which were vacant, no
fresh selection process was adopted.
The aforesaid circumstance is a clear indication of the
fact that the Petitioners from the initial date of appointments
complied with the eligibility criteria for appointments of Higher
Grade Stenographers and no fault could be found in their
appointment, which were effected after following the due procedure
prescribed of selection and they came to be appointed to fill up the
vacancies in the Court of City Civil Court. The Minutes of the
Advisory Committee held on 11/07/2008, reflect that there were 11
vacancies of Stenographers (HG) on the establishment of City Civil
Court and the same could be filled in, by absorbing the ad-hoc
Stenographers, including the 5 Petitioners since their performance
was found to be satisfactory and there was nothing adverse against
them.
25. The term 'Ad-hoc' convey that it is meant for a
particular purpose and there cannot be ad-hocism for indefinite
period of time, if the appointments were made for a particular period
and for achieving a particular purpose. Once a decision was taken in
respect of the Petitioners by the Appointing Authority, as they were
appointed by following due procedure of selection, they deserve their
appointments on the regular post, which were vacant, and mere use of
the terminology 'appointment' in place of 'absorption', which was
recommended, the appointment of the Petitioners on the
establishment of the City Civil Court with effect from 14/07/2008,
cannot be looked at in disjunction, with their earlier appointment,
Ashish
29/40 Wp 3354-22.doc
with effect from 1/09/2004, on ad-hoc basis for the Fast Track Court,
at Sewree, Mumbai, pursuant to their selection on the establishment
of Bombay City Civil Court and Sessions Judge, Greater Mumbai.
We are not at all satisfied with the stand adopted by the
the Law and Judiciary Department that the services of the Petitioners
were 'ad-hoc', when they were initially appointed on 1/09/2004, and
therefore, that has to be kept at bay, from their service on regular
establishment of the City Civil Court with effect from 14/07/2008.
In order to deprive the Petitioners of the benefits of
permanency, artificial breaks were added to their service by following
a procedure of putting an end to the services, by issuing termination
order and thereafter, issuing re-appointment.
26. Such approach of adhocism was strongly deprecated by
the Apex Court in case of Rattan Lal and Ors vs. State of Haryana
(Supra), in the following words:-
"...It has been appointing teachers for quite some time on
an ad-hoc basis for short periods as stated above without any justifiable
reason. In some cases the appointments are made for a period of six
months only and they are renewed after a break of a few days. The
number of teachers in the State of Haryana who are thus appointed on
such ad-hoc basis is very large indeed. If the teachers had been appointed
regularly they would have been entitled to the benefits of summer
vacation along with the salary and allowance payable in respect of that
period and to all other privileges such as casual leave, medical leave,
maternity leave etc. available to all the Government servants. These
benefits are denied to these ad-hoc teachers unreasonably on account of
this pernicious system of appointment adopted by the State Government.
These ad-hoc teachers are unnecessarily subjected to an arbitrary 'hiring
and firing' policy. These teachers who constitute the bulk of the educated
unemployed are compelled to accept these jobs on an ad-hoc basis with
miserable conditions of service. The government appears to be exploiting
this situation. This is not a sound personnel policy. It is bound to have
serious repercussions on the educational institutions and the children
studying there. The policy of 'ad-hocism' followed by the State
Government for a long period has led to the breach of Article 14 and
Article 16 of the Constitution. Such a situation cannot be permitted to last
any longer. It is needless to say that the State Government is expected to
Ashish
30/40 Wp 3354-22.doc
function as a model employer."
27. In Rudrakumar Sain and ors vs. Union of India and ors 12
, the Apex Court has interpreted the words 'ad-hoc' 'stopgap' and
'fortuitous' in the matter of determination of seniority of direct
recruits and promotees in the Delhi Higher Judicial Service. In
paragraph Nos.19 and 20, the succinct distinction between these
terms is clearly noted in the following words:-
"19. The meaning to be assigned to these terms while interpreting
provisions of a service rule will depend on the provisions of that rule and
the context in and the purpose for which the expressions are used. The
meaning of any of these terms in the context of computation of inter se
seniority of officers holding cadre post will depend on the facts and
circumstances in which the appointment came to be made. For that
purpose it will be necessary to look into the purpose for which the post
was created and the nature of the appointment of the officer as stated in
the appointment order. If the appointment order itself indicates that the
post is created to meet a particular temporary contingency and for a
period specified in the order, then the appointment to such a post can be
aptly described as "ad hoc" or "stopgap If a post is created to meet a
situation which has suddenly arisen on account of happening of some
event of a temporary nature then the appointment of such a post can aptly
be described as "fortuitous" in nature. If an appointment is made to meet
the contingency arising on account of delay in completing the process of
regular recruitment to the post due to any reason and it is not possible to
leave the post vacant till then, and to meet this contingency an
appointment is made then it can appropriately be called as a "stopgap"
arrangement and appointment in the post as "ad hoc" appointment. It is
not possible to lay down any strait-jacket formula nor give a an
exhaustive list of circumstances and situation in which such an
appointment (ad hoc, fortuitous or stopgap) can be made. As such, this
discussion is not intended to enumerate the circumstances or situations in
which appointments of officers can be said to come within the scope of
any of these terms. It is only to indicate how the matter should be
approached while dealing with the questions of inter se seniority of
officers in the cadre.
20. In service jurisprudence, a person who possesses the requisite
qualification for being appointed to a particular post and then he is
appointed with the approval and consultation of the appropriate authority
and continues in the post for a fairly long period, then such an
appointment cannot be held to be "stopgap or fortuitous or purely ad
hoc". In this view of the matter, the reasoning and basis on which the
appointment of the promotees in the Delhi Higher Judicial Service in the
12 (2008) SCC 25
Ashish
31/40 Wp 3354-22.doc
case in hand was held by the High Court to be "fortuitous/ad
hoc/stopgap" are wholly erroneous and, therefore, exclusion of those
appointees to have their continuous length of service for seniority is
erroneous."
28. The grievance of which the Petitioners sought redressal
from the Respondent No.5, through there repeated representations
after their appointment/absorption in the City Civil Court, pertain to
the unfair treatment meted out to them and a request was made for
condoning the breaks in service, from their initial appointment from
1/09/2004 to 14/07/2008, and by considering their service to be
continuous from the date of initial appointment, they claim their
entitlement to the pensionary benefits as per the Maharashtra Civil
Service (Pension Rules), 1982.
As far as the Civil Services Rules are concerned, for the
purposes of pension, the commencement of qualifying service of a
government servant as per Rule 30, is the date when he/she take
charge of the post, to which he is first appointed, either substantively
or in an officiating or temporary capacity, subject to a proviso that at
the time of retirement he shall hold substantively, a permanent post in
government service or holds a suspended lien or certificate of
permanency.
As per the Rules of 1982, all leaves including
extraordinary leave during the period of continuous service, count as
qualifying service for pension, and even the service on probation
against a post if followed by confirmation in the same or another post
also qualify for pension.
The Petitioners would place reliance upon Rule 35 and
36 to the above effect.
Ashish
32/40 Wp 3354-22.doc
29. The reliance placed by Mr. Patki, representing the State
on the decision in case of Direct Recruit Class II Engg. Officers
(supra) is not of any succor to him, as it is a decision determining the
seniority between direct recruits and promotees, and it is in the
context of the quota rule, it is held that where the appointment is
made in accordance with the Rules, seniority is to be counted from
the date of such appointment and not from the date of the
confirmation but whether initial appointment is not made by
following procedure laid down by the Rules but the appointee
continues in post, uninterruptedly, till regularization of his service in
accordance with Rules, the period of officiating service rule will be
counted, but when the initial appointment is only adhoc, made as a
stopgap arrangement and not according to the rules the officiation in
such post cannot be taken on account for considering the seniority.
The principle of law flowing from the said decision,
relate to deciding inter se seniority, and it is held that it must conform
to the principles of equality as enshrined in Article 14 and 16 and the
experience on ad-hoc appointment cannot be equated with experience
of regular appointee, because of the qualitative difference in the
appointment and it is ruled that to equate the two, would be to treat
two unequals as equal, which would violate equality law.
In the case before me, it is evident that the appointing
authority of the Petitioners itself had recommended for their
absorption as they were appointed by following the due procedure
and their performance was found to be satisfactory, with a
distinguishing factor to the effect that when they were
appointed/absorbed in the regular post, no fresh procedure for
Ashish
33/40 Wp 3354-22.doc
selection was carried out. Another decision, in case of V Venkata
Prasad (supra), which relate to determination of seniority of
adhoc/fortuitous appointees under Fast Track Court Scheme, and
such employees were pitched against the direct recruits appointed
against substantive posts in their quota, the Apex Court has held that
the appointments in respect of Fast Track Court are ad-hoc in nature
and no right accrued to the recruits promoted/posted on ad-hoc basis
from lower judiciary for regular promotion on basis of such
appointment as the Fast Track Court Judges, are appointed under a
separate set of rules than the rules governed in regular appointment in
the State Higher Judicial Services.
Even this decision, is distinguishable, as it is delivered in
the facts of the case where the appellants were promoted because of
the introduction of the Fast Track Court's Scheme and while
continuing in the post under the said Scheme, the regular post in the
cadre fell vacant and they were regularized, but prior to that, the
respondents were appointed as direct recruits in respect of substantive
posts in their quota, and hence it was held that they were senior to
them and the benefit of promotion would be conferred on them with
preference to the appellants.
Even this decision do not take the case of Mr. Patki, any
further.
30. In addition, reliance is placed upon Rule 48, which is the
power in the Appointing Authority to condone the interruptions in
service of a government servant, and it specifically set out the
stipulations, which reads thus:-
Ashish
34/40 Wp 3354-22.doc
"48. Condonation of interruption in service
(1) The appointing authority may, by order, condone interruptions in the
service of a Government servant:
Provided that-
(a) the interruptions have been caused by reasons beyond the control of
the Government servant,
(b) the total service pensionary benefit in respect of which will be lost, is
not less than five years duration, excluding one or two interruptions, if
any; and
(c) the interruption including two or more interruptions if any. does not
exceed one year.
(2) The period of interruption condoned under sub-rule (1) shall not
count as qualifying service.
(3) In the absence of a specific indication to the contrary in the service
record, an interruption between two spells of civil service rendered by a
Government servant under Government, shall be treated as automatically
condoned and the pre-interruption service treated as qualifying service.
(4) Nothing in sub rule (3) shall apply to interruption caused by
resignation, dismissal or removal from service or for participation in a
strike.
(5) The period of interruption referred to in sub-rule (3) shall not count
as qualifying service."
31. According to the Petitioners, the interruptions in their
service from their initial appointment from 1/09/2004 to 14/07/2008,
was beyond their control and this interruption do not, any way exceed
one year.
Perusal of Rule 48 of Maharashtra Civil Service
(Pension Rules), 1982, make it evident that it is a power conferred on
the Appointing Authority, by an order, to condone the interruptions in
service and accordingly, the Petitioners have preferred
representations from time to time. Since, the original appointment of
the Petitioners in the post, described as 'Ad-hoc' was made in
conformity with the relevant recruitment rules and the prescribed
Ashish
35/40 Wp 3354-22.doc
mode of recruitment, and on having rendered satisfactory
performance, as per the Government Resolution issued by the
General Administration Department, Government of Maharashtra on
19/09/1975, they are entitled to be treated as 'permanent government
servants' for all purposes including the admissibility of full
pensionary benefits.
The said Government Resolution dated 19/09/1975, read
as under:-
"Temporary Government Servants-
Extension of benefits of permanency to
Government of Maharashtra
General Administration Department,
Resolution No.SRV-1075-X,
Sachivalaya, Bombay-400 032, dated the 19th September, 1975
RESOLUTION
1. The question of extending the benefits of permanency to temporary
Government servants has been engaging the attention of Government for some time.
Various orders were issued from time to time to ensure that the largest possible number
of temporary posts are made permanent, that the maximum possible number of
Government servants are confirmed, and that those who could not actually be confirmed
even after putting in several years of service receive the same benefits as permanent
Government servants in matters of pay and leave salary. Despite these measures,
however, a large number of Government servants have remained temporary and are
likely to be deprived of pensionary benefits.
2. With a view allowing full service benefits to such Government servants,
Government has now decided that the benefit of permanency in service should no longer
be dependent on the availability of permanent posts. Government is accordingly pleased
to direct that, subject to the conditions specified below, every Government servant who
has rendered continuous service for not less than three years in a post or posts
(excluding those on the converted Regular Temporary establishment) included in a cadre
should be deemed to be a permanent Government servant for all purposes, including the
admissibility of full pensionary benefits.
CONDITIONS
(1) The original appointment of the Government servant
concerned to the respective posts or cadre must have been made
in conformity with the relevant recruitment rules, and the
Ashish
36/40 Wp 3354-22.doc
prescribed method of recruitment.
(2) The Government servant concerned must have produced the
requisite physical fitness certificate and must have passed the
prescribed departmental examination or test if any.
(3) The Government servant concerned must possess a good
record of service in government.
3. In the case of every Government servant who satisfies these conditions
and becomes eligible to be treated a permanent Government servant, a declaration to
that effect should be issued by the authority competent to appoint him to the particular
post as soon as possible after completion of continuous service of not less than three
ears in the relevant post or cadre. On such a declaration being recorded, the
Government servant concerned should be held eligible for all benefits of a substantive
status in Government service.
4. These orders are applicable only with reference to the first appointment
of a person to Government service, i.e. he should be given the status of permanency in
terms of these orders only in respect of the post to which he is appointed by direct
recruitment. In respect of subsequent appointments by promotion, he will be deemed to
be permanent in the cadre to which he is promoted only on his confirmation in that
cadre in a substantive vacancy.
5. The question of issuing such amendments as may be necessary to the
relevant provisions of the Bombay Civil Services Rules will be considered separately by
the Finance Department.
By order and in the name of the Governor of Maharashtra.
S.B. Kulkarni,
Secretary to Government."
32. Mr. Datar, the learned counsel for the High Court has
placed before us the Minutes of the Meeting held on 18/08/2004,
when the Petitioners upon being interviewed were found suitable to
be appointed on the post of Stenographers (HG) and what is
noticeable, is the procedure being followed, as there was direction to
prepare a seniority list of candidates selected from the Employment
exchange and from the public, basis along with a direction to
maintain waiting list for 3 years and thereafter, the Registrar was
directed to put up necessary appointment orders of the candidates in
accordance with the available vacancies from time to time, with
insistence upon filling up of clear vacancies in the City Civil Court,
Ashish
37/40 Wp 3354-22.doc
first to be followed by 12 vacancies on the establishment of Fast
Track Court on purely ad-hoc basis, on such terms and conditions to
be determined by the Court.
The situation in which the Petitioners find themselves is
not uncommon, as from the Minutes of the Welfare Committee
placed before us, the High Court had considered the request of the
Secretaries of the Hon'ble Judges, High Court Bombay, to condone
the break in service rendered by them on the establishment of City
Civil Court as non P.S.C (Public Service Commission) candidates for
the post of Stenographers and on recommendation of the Welfare
Committee, the Hon'ble Chief Justice, accepted the recommendations
and decided to approve the office proposal, by accepting the request
of the applicants to count their past service rendered in the City Civil
Court, Bombay for pension purpose by condoning the break in
service and by granting them extraordinary leave for the period
mentioned against their names.
33. The Petitioners, who are denied continuity of service
only on account of technical eventuality, being the technical break in
their service and since the break was merely an artificial one, to deny
the benefit of permanency and the appointing authority of the
Petitioners i.e. the Respondent no.2. specifically expressed its
displeasure over continuing their services along with this artificial
break and recommended for their absorption, we find no justification,
in not condoning the break.
Rule 48 of the Maharashtra Civil Services (Pension
Rules), 1982, permits the Appointing Authority to condone the
interruption in service, and it is only on condonation of the break, the
Ashish
38/40 Wp 3354-22.doc
Petitioners would be clothed with the benefit of computing the
continuous service, for the purposes of pension, by counting it from
the date of their initial appointment. The break in the service of the
Petitioners was beyond their control, and since it was not on account
of resignation, dismissal, or removal from service, in the view of
Rule 48(1)(a) of the Pension Rules, 1982, limited for the purpose of
pension, the break deserve to be condoned and once it is so done, the
service rendered by the Petitioners from the date of their initial
appointment i.e. 1/09/2004, as Stenographers (HG) is entitled to be
counted as continuous service. Upon this situation, being existent, the
Petitioners are deemed to be in service on the date of issuance of the
Government Resolution dated 1/11/2005, when the new pension
scheme i.e. DCPS became applicable.
The Petitioners, being already in service on 1/11/2005,
on pensionary establishment, therefore, are entitled for extension of
the benefit of the Circular of the Finance Department, issued on
12/01/2007, as they satisfy the condition nos.(i) to (iv) specified
therein being that the earlier appointment of the Government Servant
is a regular appointment, the Government Servant should have
completed period of probation, the government servant has applied
for the new post through proper channel/proper permission, and the
period of break, if any, in service should not be more than the joining
time permissible.
Since the Petitioners comply with all the stipulations, it
is declared that they are governed by the MCSR (Pension) Rules,
1982 and not the New Defined Contribution Pension Scheme, which
was introduced by the Finance Department of the State of
Ashish
39/40 Wp 3354-22.doc
Maharashtra by Resolution dated 31/10/2005, for the government
servants, who are recruited on or after 1/11/2005, in State
Government Service.
34. In the wake of the aforesaid confabulation, we do not
find that the decision, to refuse the relief of condoning the break in
the services of the Petitioners only on the ground that the service
rendered by them on the post of Stenographers (HG), for Fast Track
Court, Sewree Mumbai, was on ad-hoc basis, to be justified as we are
of the clear view that despite the appointments being on ad-hoc basis,
it was on following the due procedure of recruitment, after meeting
the eligibility criteria, including that of the educational qualification
and hence they cannot be deprived of the counting of the service
rendered before absorption/appointment, on the post of Stenographers
(HG) on the establishment of Bombay City Civil and Sessions Court,
with effect from 14/07/2008.
Similarly, we find the denial of the relief of condonation
of the break in service, only on the ground that the post was not
regular to be arbitrary and unreasonable.
We also conclude that the impugned decisions declaring
that the Petitioners are to be governed by the DCPS, by considering
their appointment to be after 31/10/2005, in ignorance of the past
service, on account of the break in service to be an arbitrary decision
and by quashing and setting aside the same, we make the Writ
Petition absolute in terms of prayer clause (a), (b) and (b1).
Since the Petitioners have waited too long for the
benefit, we conferred upon them, we direct the Respondent no.5 to
undertake the exercise of condoning the break in service of the
Ashish
40/40 Wp 3354-22.doc
Petitioners and counting their service from the date of their initial
appointment as Stenographers (HG) from 1/09/2004, and by issuing
appropriate order, declare them to be eligible for pension as per the
Maharashtra Civil Services (Pension Rules), 1982, within a period of
8 weeks from the date of receipt of the Judgment.
(MANJUSHA DESHPANDE,J) (BHARATI DANGRE, J.)
Ashish
