Raghu Raj Singh Chauhan vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 734 Del

JUDGMENT

P.K. Bhasin, J.

Page 1379

1. Order dated 10.02.2005 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter to be referred as 'the Tribunal') passed in OA No. 1973/2004 is being assailed by the petitioner since the Tribunal has dismissed his application under Section 19 of the Administrative Tribunals Act, 1985 wherein he had claimed the relief of counting of his seniority as Assistant Director (Exhibition Cell) in the National Museum, New Delhi from the date of his ad-hoc appointment on deputation for the said post.

2. The facts leading to the filing of the OA by the petitioner before the Tribunal and filing of this writ petition under Articles 226 and 227 of the Constitution of India consequent upon the rejection of the OA are as follows:

The petitioner was working as a Keeper (Publications) in the National Museum w.e.f. 12.12.1989. That was a group 'A' Gazetted post in the pre-revised scale of Rs. 3000-4500. The National Museum was at that time under the Department of Culture, Ministry of Human Resource Development, Government of India. The next higher post in the National Museum for the Keepers was that of Assistant Director having the pay scale of Rs. 3700-125-4700-150-5000. As per the relevant rules applicable to the post of Assistant Director the said post could be filled by transfer on deputation basis failing which by direct recruitment. Although the petitioner was eligible for regular appointment to the post of Assistant Director he was appointed on deputation basis but that appointment was termed as 'ad-hoc' for a period of six months till that post was filled on regular basis, whichever was earlier. The petitioner accepted that appointment which was offered to him vide office order dated 01.01.1996 and he assumed the charge w.e.f. 02.01.1996 before the expiry of six months period of ad-hoc appointment of the petitioner the respondent No. 3 who was the Assistant Director (Administration) in the National Museum vide his letter dated 03.06.1996 requested the Department of Culture for extension of the ad-hoc appointment of the petitioner for another six months. Same request was repeated by the respondent No. 3 vide his letter dated 17.07.1996. Since the Department of Culture did not respond to the said two requests the Director General of the National Museum wrote another letter dated 23.08.1996 requesting for extension of ad-hoc promotion of the Page 1380 petitioner. In that letter it was mentioned that the petitioner had been looking after the duties and responsibility of the Assistant Director (Exhibition) in addition to his normal duties of Keeper (Publication). Vide office memorandum dated 26.5.1998 the Department of Culture informed the petitioner that he had not been given extension as an Assistant Director after the expiry of his deputation period on 02.07.1996 but still he was writing his designation as Assistant Director (Exhibition Cell). He would, therefore, remain a Keeper which was his substantive appointment. It appears that before the issuance of the said office memorandum dated 28.05.1998 the petitioner had filed OA No. 459/1998 before the Tribunal on 18.02.1998 alleging that the posts of Assistant Director (Exhibition) and Assistant Director (Administration) in National Museum were lying vacant for over five years and, therefore, the Govt. should be directed to complete the process of selection to the said posts in accordance with law and also to pay him the salary of the posts of Assistant Director (Exhibition) w.e.f. 01.01.1996. It appears that during the pendency of that petition in the Tribunal the Government issued a notification dated 28.10.1998 extending the ad-hoc appointment of the petitioner to the post of Assistant Director (Exhibition Cell) in the revised pay scale of Rs. 12000-16500 w.e.f. 01.07.1996 to 28.05.1998 and that notification also stated that the petitioner would stand reverted to his substantive post of Keeper (Publication) w.e.f. 28.05.1998. It was also stated therein that the extension of deputation of the petitioner would not confer any right on him for appointment as Assistant Director on regular basis. Earlier to the issuance of the said OM dated 28.10.1998 the Tribunal had vide its order dated 28.05.1998 stayed its operation and had ordered that status-quo ante would continue till further orders. Since the petitioner had been called for interview for selection to the post of Assistant Director (Exhibition Cell) and he had been interviewed too and he claimed to have been selected the OA was disposed of on 12.11.1998 without any direction to the Government to complete the selection process within a particular period. The Tribunal, however, observed that the petitioner could not have been treated as reverted to the post of Keeper retrospectively w.e.f. 28.05.1998 vide notification dated 28.10.1998 and consequently he would be considered as continuing in the higher post till 28.10.1998. He was also given the consequential benefits of difference of salary between the posts of Keeper and Assistant Director. In pursuance of that order of the Tribunal the Government issued a notification on 08.01.1999 extending the ad-hoc deputation of the petitioner in the post of Assistant Director (Exhibition Cell) from 29.05.1998 to 28.10.1998. In that notification also it was stated that the said ad-hoc extension would not confer any right on the petitioner for appointment to the said post on a regular basis. Thereafter, UPSC recommended the appointment of the petitioner as Assistant Director (Exhibition Cell) on 16.09.1998 and he joined as Assistant Director on 03.12.1998 after the Government sent him the offer vide letter dated 24.11.1998. Page 1381 That appointment was also on deputation basis for a period of four years.

It appears that after assuming the charge of the post of Assistant Director on 03.12.1998 the petitioner felt that he should not have been offered the appointment on deputation basis and should have been treated as promoted to that post as a departmental candidate and so he made representations to the Government for his absorption as Assistant Director on regular basis. However, the department did not take any decision on his representations for absorption and according to the petitioner the department intentionally slept over the matter because it wanted to promote his junior Keeper Sh. U. Das, the respondent No. 3 herein so as to make him senior to the petitioner as Assistant Director (Administration) and respondent No. 3 was appointed as Assistant Director (Administration) vide letter dated 21.07.2000. The petitioner was thereafter asked vide OM dated 25.07.2000 to give his willingness for his absorption as Assistant Director (Exhibition Cell) and the petitioner gave his willingness for his permanent absorption w.e.f. 02.01.1996 when he was for the first time appointed on ad-hoc basis. The Government, however, vide OM dated 13.12.2000 asked the petitioner to give his unconditional willingness for absorption as Assistant Director. The petitioner claims that thereafter he was left with no other option except to give his unconditional consent which he accordingly gave vide his letter dated 15.12.2000. Thereafter, the Department of Culture issued notification on 14.06.2001 for his absorption on regular basis w.e.f. 29.05.2001. The petitioner made representations for giving him seniority w.e.f. 02.01.1996 but that request was turned down by the Department of Culture vide letter dated 09.08.2001. Thereafter also the petitioner kept on representing to the Department of Culture for giving him seniority as Assistant Director w.e.f. 02.01.1996. The Department rejected the same also vide its letter dated 11.08.2003.

3. Feeling aggrieved, the petitioner approached the Tribunal by filing OA No. 1973/2004 which, as has been noticed already, came to be rejected by the Tribunal vide the impugned order dated 10.02.2005. Challenging the correctness of that decision of the Tribunal the petitioner has now approached this Court invoking Articles 226 and 227 of the Constitution of India and has while praying for the reversal of the said order of the Tribunal prayed for following directions in his writ petition and which he had made before the Tribunal also:

(a) direct and order the Respondents to give the petitioner seniority on the post of Assistant Director(Exhibition Cell) for the period from 2.1.1996 to 2.12.1998 as continuous ad-hoc Deputation".

(b) direct and order the Respondents to declare and treat his services w.e.f. 3.12.1998 as regular on the post of Assistant Director (Exhibition Cell) and accordingly the Respondent No. 1 be directed to give the petitioner seniority w.e.f. 16.9.1998 or 3.12.1998 on regular basis on the post of Assistant Director (Exhibition Cell) and quash the impugned order dated 10.2.2005.

Page 1382

4. On behalf of the petitioner his counsel Sh. Lalit Bhasin more or less reiterated the aforesaid contentions which had been made before the Tribunal. He also filed written submissions also in which similar contentions have been raised. However, during the course of arguments Mr. Bhasin gave up the prayer of the petitioner for counting of his seniority as Assistant Director w.e.f. 02.01.1996 and stated that the petitioner would be satisfied if his seniority is counted from 16.09.1998 when the UPSC recommended his name for regular appointment as Assistant Director. Mr. Bhasin in support of the claim of the petitioner placed reliance on the judgments of the Supreme Court in Sub-Inspector Rooplal and Anr. v. Lt. Governor and Ors. , Rudra Kumar Sain and Ors. v. Union of India and Ors. , L. Chandra Kishore Singh v. State of Manipur and Anr. , N.K. Chauhan and Ors. v. State of Gujarat and Ors. , B.N. Nagarajan and Ors. v. State of Karnataka and Ors. .

5. On 13.12.2005 the counsel for the respondents had stated that their counter affidavits filed before the Tribunal could be looked into for deciding this writ petition. Accordingly, the writ petition was set down for final hearing without any counter affidavits on behalf of the respondents.

6. The stand of the respondents before the Tribunal in their reply to the OA was that the ad-hoc appointment of the petitioner as Assistant Director (Exhibition) did not confer any right upon him for regular appointment and that had been made clear to him right from the time when he was initially offered ad-hoc appointment in January 1996. Regarding the allegation of the petitioner that the selection process for regular appointment to the post of Assistant Director (Exhibition) for which he had been interviewed and selected also was deliberately delayed in order to promote his junior Sh. U. Das before him, the respondents had claimed that Sh. U. Das was appointed as Assistant Director (Administration) for which post there were separate recruitment rules and so there could be no issue of inter se seniority between the petitioner and Sh. U. Das as both of them had been selected for different posts. As far as the petitioner's claim of permanent absorption as Assistant Director (Exhibition Cell) is concerned the respondents' stand was that as per the existing rules/guidelines for deputation/absorption whenever an official is initially given some appointment on deputation, and that official is subsequently absorbed the seniority in the grade in which he is absorbed is normally counted from the date of absorption. This stand was taken by the respondents on the strength of the Government's instructions regarding Page 1383 absorption of the deputationists issued on 22.12.1959. Another objection raised was that the OA itself was barred by the principle of res-judicata since a writ petition filed by the petitioner challenging the appointment of Sh. U. Das and his seniority was already pending.

7. On behalf of the Union of India its counsel Mr. Amit Bansal also reiterated before us the aforesaid stand taken before the Tribunal and he also cited certain judgments of the Supreme Court in support of his submissions. Those judgments are reported as (1998) 9 SCC 298 Union of India and Anr. v. Onkar Chand and Ors. 1992 Supp (1) SCC 272 Keshav Chandra Joshi and Ors. v. Union of India and Ors. Sanjay K. Sinha-II and Ors. v. State of Bihar and Ors. Mr. Bansal also filed brief written submissions. On behalf of respondent No. 3 Sh. U. Das hiss counsel Sh. L.R. Khatana also reiterated the stand taken before the Tribunal by him that the petitioner was not entitled to claim seniority w.e.f. 02.01.1996 and submitted that his claim for the same had been rightly rejected by the Government and then by the Tribunal. It was also submitted that respondent No. 3 had been appointed as Assistant Director (Administration) on 21.07.2000 and, therefore, the petitioner could not claim himself to be senior to respondent No. 3 On behalf of respondent No. 3 also his counsel filed written submissions.

8. We have given our thoughtful consideration to the rival contentions. From the foregoing narration it is apparent that there is no dispute between the parties as far as the factual aspect of the matter is concerned. The petitioner admittedly was given ad-hoc appointment to the post of Assistant Director (Exhibition Cell) in the National Museum where he was already working as a Keeper. His ad-hoc appointment was w.e.f. 02.01.1996 on deputation basis for an initial period of six months. Later on the Government granted him extension retrospectively w.e.f. 02.07.1996 till 28.10.1998. He was given regular appointment as Assistant Director (Exhibition Cell) on 03.12.1998 on the basis of recommendations of the UPSC made on 16.09.1998 but that appointment was also on 'deputation basis' for a period of four years. Later on he was absorbed as Assistant Director (Exhibition Cell) w.e.f. 29.05.2001. The petitioner's claim now, as noticed already, is that he should be given his seniority from 16.09.1998 when the UPSC recommended his name for regular appointment as Assistant Director (Exhibition Cell). In support of this claim the petitioner is placing reliance on an office memorandum dated 01.07.1991 issued by the Ministry of Personnel, Department of Personnel and Training, Govt. of India where under it has been provided by the Government that any Government servant who is holding a post on ad-hoc basis and is selected by the UPSC for regular appointment to that post his appointment is to be treated as regular from the date of the letter of the recommendation of the UPSC. The Tribunal has referred to this office memorandum and its effect in para No. 14 of the impugned judgment and the relevant portion is as under:

Page 1384 ...As stated earlier, applicant had been appointed as Assistant Director (Exhibition Cell) on 1.1.1996 on deputation basis (on ad-hoc basis) for a period of six months or till the post was filled on regular basis, whichever was earlier. He functioned as such till 28.10.1998 on the strength of interim orders dated 28.5.1998 in OA No. 459/1998. Thereafter, there is a break when applicant did not function as such from 29.10.1998 till 2.12.1998. He started functioning again as such when he joined the post again on 3.12.1998 on deputation basis. However, in terms of DOPandT OM dated 1.7.1991 (Annexure P-14) applicant's appointment on transfer on deputation basis as Assistant Director (Exhibition Cell) scale Rs. 12000-16500 has to be considered as effective from the date of recommendations of the UPSC. UPSC is stated to have made these recommendations on 16.9.1998. As such, the period of break from 29.10.1998 to 2.12.1998 is certainly covered in terms of this circular.

9. However, even after observing that the petitioner would be entitled to the benefit of the OM dated 01.07.1991 the Tribunal did not give the necessary relief to the petitioner by directing that his regular appointment as Assistant Director (Exhibition Cell) would take effect from 16.09.1998 when the UPSC had recommended his appointment for the said post. The Tribunal has not given any reason for not granting the said relief to the petitioner on the basis of the OM dated 01.07.1991 nor any argument was advanced before us on behalf of the respondents to show that the denial of the benefit of counting of regular service of the petitioner as Assistant Director (Exhibition Cell) from 16.09.1998 was justified. The respondents to be opposed only to the grant of relief of seniority to the petitioner as Assistant Director (Exhibition Cell) retrospectively w.e.f. 02.01.1996, as he has been claiming, and that is why nothing was argued on their behalf with reference to the office memorandum dated 01.07.1991. The judgments of the Hon'ble Supreme Court relied upon by the learned Counsel for the respondent No. 1 (Union of India) deal with the question of seniority of ad-hoc appointees from the date of their ad-hoc appointment on a particular post. In the present case the petitioner although claiming seniority from the date of his initial ad-hoc appointment on deputation as Assistant Director (Exhibition Cell) in the National Museum but, as noticed already, at the time of hearing of his writ petition in this Court he has given up that relief and so we need not deal with the judgments cited by the counsel for the respondents No. 1 to examine whether the legal position settled in those judgments applies to the facts of the present case or not. This petition is now to be disposed of with reference to the Government's office memorandum dated 01.07.1991. In our opinion, in view of the clear instructions of the Government in its office memorandum dated 01.07.1991 to the effect that whenever a government servant holding any post on ad-hoc basis is at a later stage given regular appointment to that post after he is found suitable by the UPSC then that government servant would be treated to have been regularly appointed to that post from the date when the UPSC makes its recommendations the petitioner certainly deserves to be given the benefit of the OM dated 01.07.1991. We see no justification Page 1385 to deny him that relief which emanates from Government's own office memorandum.

10. We, therefore, allow this writ petition and set aside the judgment dated 10.02.2005 of the Tribunal in OA No. 1973/2004 and direct that the petitioner would be treated to have been regularly appointed to the post of Assistant Director (Exhibition Cell) in the National Museum w.e.f. 16.09.1998 and his seniority as Assistant Director (Exhibition Cell) would also be reckoned from that date. In the facts and circumstances of this case the parties are left to bear their respective costs of these proceedings.