Shri Kailash Chand vs Union Of India & Others
2001 Latest Caselaw 1013 Del

ORDER

Khan, J.

1. The petitioner was working as a Floor Assistant in the pay scale of Rs.330-480/- when he responded to an advertisement notice dated 2.4.84 issued by respondents for filling up the post of Production Assistant in the higher scale of Rs. 425-750/- (pre-revised). He was selected and respondents issued memorandum dated 20.12.84 offering him the post of Production Assistant subject to some conditions which provided that his appointment in the first instance would be on a long term monthly renewable casual contract of six months pending completion of some formalities where after he would be considered for appointment as a Staff Artist on contract up to three years in the aforesaid pay scale and further contract renewal would be decided by mutual agreement. It was also stipulated that he would be on probation for two years and would have to resign from his existing job if he was in Government service.

2. Petitioner claims that since he was working in the same department next door, he joined his duties on 21.12.84 and was deployed as a Production Assistant by Office Order dated 7/6/85 passed by Deputy Director (Programmes). He asserts that he continued to discharge the duties of Production Assistant thereafter but was not paid the salary attached to this post. He made representations for this which went unheeded and then filed LCA No. 1437/87, 1/91, 20/93 under Section 33(c)(2) of IDA claiming arrears of salary. He was advised to withdraw these and to file OA No.2290/93 before CAT which was withdrawn by him because of the pendency of LCAs. He later withdrew these LCAs also and filed OA No.109/94 for regularisation of his services on the post of Production Assistant and for arrears of his salary which was dismissed by impugned order.

3. Petitioner's case is that since he was working under the same roof in Doordarshan and after he was assigned the duties of Production Assistant on the very next day, he took it easy and did not care to complete formalities of submitting a joining report or his resignation from the post of Floor Assistant nor did respondents insist upon these at any stage. In any case, he was not required to resign as it would have terminated his lien on the post of Floor Assistant. He was also not supposed to satisfy other conditions/formalities contained in memo of offer being a Doordarshan employee.

4. Respondents say once he had failed to satisfy the Memorandum conditions, his offer of appointment stood cancelled on 5.1.85. It is also made out that his deployment as Production Assistant just by the way to utilise his experience as Floor Assistant in the interest of service for which he was not entitled to any additional wages in terms of DOPT OM No.4/2/89-ASST dated 11.8.89. It was also pointed out by them that the select panel in which petitioner was figuring was scrapped later for administrative reasons which was upheld by the CAT in OA No.1441/88 filed by some aggrieved candidates.

5. Tribunal grappled with all this and found that there was an offer of appointment by respondents and its acceptance by petitioner and service contract was complete. It, however, held that since petitioner had failed to fulfill all the conditions contained in memorandum of offer dated 20.12.84 which also contained a term that such offer would be deemed cancelled on breach of any of its conditions, therefore, offer made to petitioner became invalid after 5.1.85 and that his deployment and working against post of Production Assistant was immaterial. It also held that petitioner had failed to establish that he was working as Production Assistant and consequently dismissed his petition.

6. Petitioner has now filed this petition asking for regularisation of his service on the post of Production Assistant from 21.12.84 and for the release of arrears of his salary attached to this post with 18% interest. A peculiar case indeed which has undergone twists and turns more because of "taking things for granted attitude" perhaps due to existing relationship of parties. Neither side has consequently taken care to go by the terms of Memo of offer. Petitioner has not formally joined and resigned and respondents have also not passed any order to recall their offer but have on the contrary passed series of orders from 10.8.85 to 26.6.93 to describe petitioner a Production Assistant and to assign him the duties of this post and to top it to show him figuring in the list of regular Production Assistants (Annexure VI to petition).

7. It appears to us that both sides had evolved their own working arrangement giving a go-by to all that was contained in the Memo of offer.

8. What emerges from this hazy scenario is that petitioner was put to work of a Production Assistant from 6.7.85 to 4.10.93 when he was identified as Floor Assistant first time and asked to report to Scenic Designer. Before that he was enlisted as Production Assistant in a series of office orders dated 10.1.85, 6.6.85, 24.5.86, 2.7.87, 2.4.88, 30.7.88, 23.8.88, 15.3.89, 11.4.89, 29.8.89, 6.10.90, 19.8.91, 1.4.92 and 26.6.93. At no stage was he reverted to work of Floor Assistant during this period nor was his offer of appointment recalled or cancelled. Should he be deprived of his due on a mere formality of not having submitted a joining report or his resignation int he peculiar circumstances of the case is the question.

9. Shorn of technicalities, it is a matter of record that respondents had treated petitioner as Production Assistant from day one till 4.10.93 and had extracted the work of Production Assistant from him for this period which could not obviously be gratis. It is not open to them now to turn their back to reality and to deprive petitioner of his due.

10. We accordingly hold that petitioner shall be deemed to have been treated as Production Assistant pursuant to Memo of offer due to conduct of respondents and to have worked against the post till 4.10.93 where after it is not known whether he was reverted to post of Floor Assistant. Tribunal's finding in this regard being contrary to record is overturned.

11. But even so, it remained to be seen what relief could be granted to petitioner. His services can't be ordered to be regularised against post of Production Assistant because his whole claim is regulated by Memo of offer dated 20.12.84 which fixes terms of contract and makes its renewal from time to time. What makes it more dicey is that time limits prescribed in this memorandum stand already by-passed. Petitioner has crossed first six months along with stipulated probation of two years and even next three year contract. The only relief, therefore, that can be granted to him in the circumstances is to direct respondents to consider his renewal of contract from 4.10.93 for the post of Production Assistant and payment of arrears of salary from 7.6.85 to 4.10.93 and to pass appropriate orders thereon within four months from receipt of this order. Petitioner's present status shall be maintained till then.

12. Petition is disposed of accordingly.