Delhi High Court
V. Sekhar vs Food Corporation Of India on 17 February, 2000
Equivalent citations: 2000 IIIAD Delhi 710
Author: A Sikri
Bench: A Sikri
ORDER
A.K. Sikri,J.
1. Rule.
With the consent of the parties the matter is taken up and finally disposed of at this stage.
2. Petitioner was appointed as typist on temporary basis w.e.f. 26.6.1970 . The said temporary appointment was extended from time to time and on 15.4.1971 the petitioner was regularised in the said post. The case of the petitioner is that his initial appointment on temporary basis was against a permanent post. The petitioner in this petition is claiming the benefit of service rendered as typist on temporary basis w.e.f. 26.6.1970 to 15.4.1971. The relevant regulation of Food Corporation of India (hereinafter referred to as FCI, for short) for this purpose are Regulation 15(5) which reads as follows:-
15. Probation-
(5) Where an employee has rendered continuous temporary service or continuous service on deputation in any post immediately proceeding his regular appointment to such post, the period of service so rendered temporarily or on deputation may be counted against the period of probation if the appointing authority so directs.
3. As per Regulation 15(5) the period of continuous temporary service may be counted against the period of probation if the appointing authority so directs. If this is done that this period would naturally count for the purpose of seniority also.
4. Petitioner made number of representations requesting that the aforesaid period be counted for fixation of his seniority. Even the superior officials recommended his case for favorable consideration. Petitioner has also cited instances where some persons were given the benefit of temporary continuous service even when they were initially appointed as daily wage basis. In support of her submission petitioner has filed letter dated 26.9.1983 (at page 24 of the paper book) However, since no action has been taken on the petitioner's representation, petitioner has filed the instant petition.
5. In the counter affidavit filed by the respondent the only contention taken is that the Regulation 15(5) is discretionary and it is for the
appointing authority to give or not to give benefit of continuous temporary service to the petitioner. Nodoubt, Regulation 15(5) has vested discretionary powers with the appointing authority to be exercised in particular cases. However, the appointing authority is not supposed to act arbitrarily and he should exercise the discretion after examining the case on the valid considerations and omitting irrelevant considerations. In the instant case, the petitioner had quoted cases of other similarly appointed persons who were given this benefit and even when his case was recommended for favourable consideration/action by his superior officers, the appointing authority failed to take any action and infact did not decide his case one way or the other. Learned counsel for the petitioner relies upon the judgment of Supreme Court in the case of Rameshwar Prasad Vs. Managing Director, U.P. Rajkiya Nirman Nigam Limited and Others, reported in (1999) 8 SCC 382 with emphasis on the following observations:-
"In our view, it is true that whether the deputationists should be absorbed in service or not is a policy matter, but at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. Respondent 1 cannot act arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at the whim or caprice of any individual.
6. In the aforesaid cases, the Supreme Court had infact given positive direction to the respondent to absorb the petitioner in service.
7. Having regards to the facts and circumstances of this case, the respondent are directed to consider the case of the petitioner on merits within a period of six weeks from the date of receipt of copy of this order. In case the competent authority rejects the request of the petitioner, it should pass pass a speaking order giving reasons.
8. Accordingly, the writ petition and application stand disposed of.
No order as to costs.
