Shri Suraj Bhan vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1834 Del

JUDGMENT

Vipin Sanghi, J.

1. This petition under Article 226 of the Constitution of India is directed against the order dated 4th December, 1997 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in O. A. No. 1792/1992 whereby the original application filed by the petitioner has been dismissed.

2. Petitioner was appointed as a Constable in Delhi Police on 2nd December, 1963 on temporary basis. Upon completion of three years of service in December, 1966 his case came up for consideration to treat him as quasi permanent. However, on account of the petitioner having been given a "censure" on 18th September, 1966, his case was deferred for reconsideration to 3rd June, 1967.

3. It appears that in the intervening period, in April 1967, there was a general strike in Delhi Police and the petitioner was amongst a large number of policemen arrested during the strike. While the petitioner was in Central Jail, Tihar, he along with others, was served with a notice of termination of his services under Rule 5 of the Central Civil Services (Temporary Service) Rules 1965 on 13th/21st April, 1967.

4. As over a thousand policemen were involved in the general strike, the Government decided to take a sympathetic view. It decided that 165 temporary persons whose services were terminated would be taken back in employment as fresh entrants. Petitioner was given a fresh appointment with effect from 15th March, 1971. A number of policemen like the petitioner filed writ petitions in this Court few of them being CWP No. 26/1969, Sh. Raj Singh and Ors. v. Union of India and Ors. and CWP No. 106/70, Sh. Bhagwat Prasad v. Union of India and Ors., challenging their termination from service. The writ petition filed by Sh. Raj Singh and others was allowed by this Court vide judgment order dated 1st October, 1975 whereby it was held that the order of termination of services of the writ petitioners was punitive and a camouflage for penalty of dismissal from services and was violative of Article 311(2) of the Constitution of India. Since no departmental enquiry was conducted, the orders of the termination were held to be illegal. The judgment of the learned single Judge was affirmed in appeal with the dismissal of LPA No. 24/1975, on 20th April, 1977. The writ petitioners in those writ petitions were deemed to have continued in service. They were granted full pay and allowances admissible to them under the rules for the period from the date of termination to the date of fresh appointment in Delhi Police, subject to the production of declaration under FR-53(2), that they were not engaged in any employment during this period. The intervening period was directed to be treated as spent on duty for all intents and purposes.

5. The present petitioner also preferred writ petition being CWP No. 47/83 claiming the same relief that had been granted to Sh. Raj Singh and others. CWP No. 47/83 was allowed by this Court on 21st March, 1984. The operative part of the said judgment, in so far as it is relevant, reads as follows:

Considering the facts and circumstances of this case which are identical to the aforesaid writ petitions, I also quash the impugned orders and direct that the petitioners would be deemed to have continued in service and would be treated as such but without prejudice to such action as the parties may be advised to take in accordance with law.

Following the decision in CWP No. 270/78, certain other directions were given in the petitioners case also, which are not relevant for the present case.

6. After the passing of the aforesaid judgment in the petitioner's case, the respondent issued an office order bearing No. 6239-80/Estt. Int Bn. DAP dated 29th June, 1984 wherein the respondent recorded the acceptance by it of the judgment in the case of, inter alia, the petitioner and further stated that the petitioner will be deemed to have continued in service from the date of his initial appointment in Delhi Police. It further stated that the intervening period will be treated as spent on duty for all intents and purposes.

7. The petitioner made various representations to the respondent to treat him in continuous service, without a break and to grant him consequential reliefs of confirmation, seniority, promotion and pensionary benefits. The representations of the petitioner eventually evoked a reply dated 21st June, 1991, whereby the respondents stated that the request of the petitioner for antedating confirmation/promotion has been considered in the headquarters, but the same could not be acceded to.

8. Aggrieved by the aforesaid response of the respondent, the petitioner approached the Tribunal by filing an O.A. No. 1279/92 which was dismissed by the Tribunal on 4th December, 1997.

9. The relief claimed by the petitioner before the Tribunal was for advancement of the date of his confirmation as constable in Delhi Police. The petitioner's grievance was that his case for being treated as quasi permanent was to be taken up by the respondent in June, 1967. However, the same could not be done since the service of the petitioner was terminated, in the meantime, in April, 1967. He was given fresh appointment in 1971 and only after he had put in three years from 1971, that is in 1974, he was treated as quasi permanent. The Tribunal proceeded to dismiss the Original Application on the reasoning that the initial appointment of the petitioner was on probation, and on completion of the probationary period, there is no automatic confirmation. A specific order in this regard is necessary.

10. Before us, the petitioner's case is that since it had been ordered by this Court in the writ petition filed by him, on 21st March, 1984, that his termination was illegal and he was deemed to have continued in service, which decision had been accepted by the respondent vide their order dated 29th June, 1984, there was no justification in denying quasi permanency to the petitioner on the basis of his initial appointment on 2nd December, 1963. The petitioner claims that he ought to have been granted quasi permanency from 2nd June, 1967, since the effect of a censure which was inflicted upon him on 18th September, 1966 ceased to have effect on the expiry of six months from the said date. The petitioner states that his quasi permanency has wrongly been deferred to 1974 by treating him as a fresh appointee in the year 1971 and that this act of the respondent is not in consonance with the judgment passed in his favor in CWP No. 47/83 as also the order dated 29th June, 1984 passed by the respondent itself. The petitioner states that on account of his being given quasi permanency only in 1974, he suffered loss of seniority, deferment of his promotions and consequent loss in computation of his pension. We may note that the petitioner has since superannuated and the issue is relevant for the purpose of computation of his pension only. The Petitioner has relied upon the decisions of the Supreme Court in Direct Recruit Class II Engineering Officers Association and Ors. v. State of Maharashtra and .

11. The respondents have on the other hand supported the reasonsing of the Tribunal and urged that vide its judgment and order dated 21.3.1984 in W.P (C) No. 47/1983 this Court had not directed the respondents to give benefit of ante-dating confirmation and promotion etc., and the directions passed therein were limited to the extent of treating the petitioner to be in service during the said intervening period between his dismissal from service on 21-4-67 and his reinstatement on 15-3-1971.

12. The respondents have also raised a preliminary objection that the petitioner is guilty of delay and laches as this petition had been filed in Sept 1998, whereas the impugned order was passed in December 1997. The respondents have further contended that the petitioner ought to have agitated his grievance qua his non-confirmation in 1966 itself before a court of competent jurisdiction when other constables who were appointed along with him were confirmed.

13. The Tribunal, as it appears from the impugned order, has proceeded on the assumption that the petitioner was also considered for confirmation in the year 1966 along with his peers but was not confirmed, on a presumed basis that his performance was not found satisfactory. However, the Tribunal failed to appreciate that at the relevant time in 1966 when his peers were confirmed, the decision qua the petitioner was postponed to 3rd June, 1967 and before the said date arrived his services were terminated i.e., in April 1967. Thus, in fact the petitioner was never considered for confirmation in 1966 or in 1967. The petitioner had resorted to a legal remedy and even succeeded therein, and one of the necessary consequences of his being deemed to have continued in service would have been to consider him for quasi-permanancy as in June, 1967. Consequently, his being declared quasi-permanent in 1974 would relate back to June, 1967 and his further time bound consideration for confirmation and promotion would also have to be accordingly pushed back in point of time. The petitioner had taken timely action in first instituting a writ petition and thereafter repeatedly represented to the respondent authorities. The rejection of his representations on 21st June, 1991 gave him cause of action to approach the Tribunal. Moreover, the claim essentially pertains to computation of his pensionary benefits, which is a recurring cause of action. We, therefore, reject the contention that there was any unexplained delay or laches on the part of the petitioner in approaching the Tribunal.

14. Learned Counsel for the petitioner has relied upon the Direct Recruit case (supra), which in para 47, inter alia, lays down the following principle:

Once an incumbant 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.

Since the petitioner is deemed to have been in continous service from the time of his initial appointment in 1963, his seniority has to be counted from the date of his initial appointment and not from 1971, when he was reappointed.

15. Accordingly, we allow this writ petition and quash the impugned order dated 4th December, 1997 passed by the Tribunal in OA No. 1792/1992 and direct the respondents:

(i) to treat the petitioner in continous uninterrupted service since the date of his initial appointment on 2nd December, 1963:

(ii) to grant him the status of quasi permanency from 3rd June, 1967 and time bound confirmatgion and promotions by calculating his seniority from the date of his initial appointment i.e. 2nd December, 1963;

(iii) to recompute the pension of the petitioner accordingly, and pay the arrears of pension, if any, within two months from today, and the enhanced pension from 1.1.2007 onwards.

The petitioner would, however, not be entitled to claim any arrears of pay on account of preponement of his date of notional promotions for which he had not rendered service in the promoted post. However, the notionally revised higher pay shall be taken into account for the purpose of recomputing his pensionary benefits. The petitioner shall be entitled to costs of Rs. 5,000/-.