D.N. Prasad vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1475 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner seeks quashing of impugned order dated 3.2.2003 passed by the Central Administrative Tribunal in O.A. No. 403/2002 rejecting his claim for counting the service for the period from 28.12.1995 to 27.5.1999 as regular service in the grade of Deputy Adviser for the purpose of eligibility for promotion as Joint Adviser in the Planning Commission. Petitioner also assails Office Memorandum dated 15.10.2001, rejecting the representation of the petitioner for relaxation for counting the service, for the above period, as regular service. Petitioner's further representation for relaxation in the eligibility requirement of five years regular service in the grade of Dy. Adviser was also rejected after reference to the DOPT as communicated vide memo dated 18.12.2001.

2. Before going into the merits of the controversy, the facts giving rise to the present petition may be briefly noted:

(i) Petitioner, who joined Government Service as Senior Research Officer was promoted as Deputy Adviser (Monitoring: Coal/Petroleum) on ad hoc basis w.e.f 28.12.1995, vide order dated 8.1.1996 for a period of one year. His ad hoc appointment was extended from time to time by issuance of Notifications from 28.12.1996 to 27.5.1999. Vide Notification dated 31.5.1999, petitioner's appointment as Dy. Adviser was regularized w.e.f. 27.5.1999.

(ii) Planning Commission invited applications for the post of Joint Adviser (Coal) on promotion/deputation including short-term contract basis. Petitioner was an aspirant to the said post. The eligibility conditions for appointment as Joint Adviser (Coal) in the Planning Commission are reproduced for facility of ready reference:

FOR PROMOTION

Deputy Advisers of the Planning Commission with 5 years regular service in the grade rendered after appointment thereto on a regular basis and possessing the qualifications and experience prescribed for the post.

It is not necessary to record the prescribed conditions in relation to qualification, experience etc. as the same are not in issue in the present case.

3. Petitioner applied for the said appointment on promotion and requested that he be considered for the same treating his service during the period from 28.12.1995 to 27.5.1999 on ad hoc appointment as "regular service" for the purpose of eligibility to the present post. This representation, as noted earlier, was rejected vide Memorandum dated 15.10.2001 on the ground that the eligibility condition required five years' regular service in the grade of Deputy Adviser rendered, after appointment thereto on regular basis. The condition regarding regular service in the grade was not fulfillled and as such, the petitioner was held not eligible for the post. Representation for relaxation in the eligibility condition by reference to the DOPT was also not entertained. The department found the quantum of relaxation involved being substantial since his regular service fell short by two years and nine months approximately.

4. Petitioner, thereupon, filed O.A. No. 403/2002 for seeking quashing of the Memos dated 15.10.2001 and 18.12.2001 and sought directions for treating his service period from 28.12.1995 to 27.5.1999, though in ad hoc capacity, as regular service for the purposes of the eligibility condition for the aforesaid post. The Tribunal dismissed the O.A. holding that the petitioner did not have regular service in the grade and the appointment was ad hoc and not a regular selection under the Rules in consultation with the UPSC. The Tribunal also noted that the appointment of the petitioner on ad hoc basis was on a post on which another officer had a lien.

5. Learned Counsel for the petitioner submits that though the initial appointment as Deputy Adviser was on ad hoc basis, the petitioner had continued uninterruptedly till 31.5.1999 when he was appointed as Deputy Adviser on regular basis. There was no break in service. Petitioner, it is urged has performed the same duties, received same increments and this continuous service in accordance with the principles of natural justice ought to be regarded as "regular service" and benefit of the same be given to the petitioner.

6. Learned Counsel for the petitioner relies on Para 10 of the judgment of the Supreme Court in Santosh Kumar v. State of A.P. and Ors. reported at , which reproduced para 47 of the Constitution Bench judgment in Direct Recruit Class II Engg. Officer's Association's case which are reproduced for facility of reference as under:

47. To sum up, we hold that:

(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.

Relying on the above, he submits that para 47 (B) would support the petitioner's case since his service was uninterrupted and continuous and regularized and hence, the period of officiating service was to be counted.

7. We have heard Mr. Sachin Dutta in opposition to learned Counsel for the petitioner, who submits that the petitioner's appointment was purely ad hoc and as a stopgap arrangement. There was no clear vacancy and the regular appointee was on deputation with lien on the post. It was only when the deputationist got absorbed and was not to return from deputation that the vacancy became available and the petitioner was regularized. He, therefore, submits that there was no selection process for the ad hoc appointment as petitioner was the only candidate and it was done without consultation of UPSC. Reliance was also placed on State of Haryana v. Haryana Veterinary & AHTS Association and Anr. reported at (2000) 8 Supreme Court Cases 4.

8. Having noted the facts and the respective contentions and submissions, we find that the appointment of the petitioner admittedly was on ad hoc basis. There was no regular vacancy and the post became available on account of regular appointee being on deputation. There was no selection in the post in accordance with Rules. Petitioner happened to be the only candidate and there was no consultation with UPSC. The regular appointee being on deputation had a lien on the post and it was only when he got absorbed that this vacancy became available and was filled. Even though there was no break in service, the appointment was ad hoc and the period of service cannot be regarded as regular service in the grade. The eligibility conditions are clear and required five year's regular service to be rendered in the grade, after appointment thereto on regular basis. In petitioner's case, there was no appointment on regular basis prior to 27.5.1999. The Supreme Court in the case of State of Haryana v. Haryana Veterinary & AHTS Association and Anr. (supra) was considering the eligibility to get selection grade which required completion of five years or 12 years of regular service. The Supreme Court noted that the High Court committed a serious error by equating the expression "regular service" with "continuous service". The Supreme Court noted:

The aforesaid two circulars are unambiguous and unequivocally indicate that a government servant would be entitled to the higher scale indicated therein only on completion of 5 years or 12 years of regular service and further the number of persons to be entitled to get the selection grade is limited to 20% of the cadre post. This being the position, we fail to understand how services rendered by Rakesh Kumar from 1980 to 1982, which was purely on ad hoc basis, and was not in accordance with the statutory rules can be taken into account for computation of the period of 12 years indicated in the circular. The majority judgment of the High Court committed serious error by equating expression "regular service" with "continuous service".

The aforesaid observations of the Supreme Court aptly apply in the present case. As regards the reliance on Santosh Kumar v. State of A.P. and Anr. (supra), quoting Direct Recruits Class II Engineering Officers Association v. State of Maharashtra , the present being one of ad hoc appointment, would fall within corollary para 47(A) para of the said judgment.

9. We are, therefore, of the view that the petitioner has failed to make out any ground for assailing or interference with the well reasoned judgment of the Tribunal and the Tribunal has rightly held that the service rendered by the petitioner cannot be regarded as "regular service" for purposes of eligibility for promotion.

The writ petition has no merit and is dismissed.