Som Nath S/O Shri Ram Saran vs School Of Planning And ...
2007 Latest Caselaw 445 Del

JUDGMENT

Kailash Gambhir, J.

1. The petitioner has filed the present writ petition invoking the writ jurisdiction of this Court seeking following directions:

(a) Direct the respondents by appropriate writ direction or order in the nature of mandamus directing the respondents to regularize the petitioner as an Assistant w.e.f. 10.5.85.

(b) Further issue an appropriate writ, direction or order in the nature of mandamus. Directing the respondent to correct the seniority list dt. 6.2.89 by treating the petitioner as an Assistant from 10.5.1985 and grant him all consequential benefits.

(c) Further issue an appropriate writ, direction or order in the nature of certiorari quashing the letter dt. 16.3.90 issued by the respondent.

(d) To pass any other order or orders necessary in the facts and circumstances of the case.

2. The case of the petitioner as set out in the present petition in nutshell is that he was appointed on regular basis as LDC in 1971 and in the year 1981 he was promoted to the post of UDC on which post he worked till 1985. In the year 1985 vide Office Memorandum dated 2.5.85, the petitioner was called upon to appear for interview before the Departmental Promotion Committee for recruitment by promotion to the temporary work charged post of Assistant (Works) in the pay scale of Rs.425-700/- for a period of six months. The petitioner got selected on the said post of Assistant (Works) and vide Memorandum dated 10.5.85, he was promoted to the temporary work-charged post of Assistant (Works) on ad hoc basis for a period of six months w.e.f 10.5.85. It is his own case of the petitioner that senior to him in the seniority list of UDC did not show any interest to join on the said post either by not responding to the interview call or not turning up at the time of interview and therefore, presumption arises in his favor that he was the only suitable candidate to be appointed on the said post while others in the seniority list of Upper Division Clerk were not suitable. Although the petitioner was appointed against a regular vacancy on the post of Assistant w.e.f. 23.5.89 but he felt aggrieved as to why he was not given seniority w.e.f. 10.5.85 although he was duly selected on the post of Assistant by the DPC. Based on these facts the petitioner has claimed seniority w.e.f. 10.5.85 on the said post of Assistant and his regularisation from the same date. Counsel for the petitioner states that petitioner has suffered on account of this as he was not promoted to the post of Superintendent although he had put in long service on the same post and was made stagnant on the post of Assistant to ultimately retire on 31.3.2006.

3. Mr. Sinha counsel for the petitioner has contended that the case of the petitioner is very hard because he was denied promotion to the post of Superintendent and he would have attained promotion to the post of Superintendent if his previous service on the post of Assistant was counted w.e.f. 10.5.85 till 22.5.89 for the purposes of seniority. Mr. Sinha has also contended that he was duly selected by the DPC for the post of Assistant (Works) and continued on the said post for about four years period and once he has undergone the same selection process as was required for appointment to the post of Assistant, he should not have been denied the benefit of claiming seniority on the said post w.e.f. 10.5.85 till 22.5.89. Per contra, Mr. Singh counsel for the respondent has contended that the seniority could not have been conferred to the petitioner w.e.f. 10.5.85 as the petitioner was appointed purely on ad hoc basis on the temporary work charged post of Assistant(Works). Counsel for the respondent has relied upon the Office Memorandum dated 2.5.85 which clearly states that petitioner was required to appear at the interview before the DPC for recruitment by way of promotion and by selection to the work charged post of Assistant (Work) in the pay scale of Rs.425-700 for a period of six months. The counsel for the respondent has further contended that memorandum dated 10.5.85 also clearly spells out that the petitioner was promoted on ad hoc basis to the temporary work charged post of Assistant (Works) in the School of Planning and Architecture for a period of six months and the petitioner was made well aware that he was liable to be reverted without notice and the said officiating appointment would not entitle him to claim seniority over other Upper Division Clerks who were senior to him in the cadre of Upper Division Clerks. Counsel for the respondent contends that although various extensions were given to the petitioner from time to time but every time it was made clear to the petitioner that the terms and conditions of his appointment as notified vide Memorandum dated 10.5.85 were to remain the same. Counsel for the respondent further submits that there were many seniors to the petitioner in the seniority list of Upper Division Clerks and all of them were well aware of this fact that selection of the petitioner to the post of Assistant on ad hoc basis was not going to confer any special benefit to the petitioner and their seniority would not be affected by counting the said temporary period of ad hoc service of the petitioner. Counsel for the respondent also submits that serious prejudice will be caused to the rights of the senior persons in the cadre of Upper Division Clerks, who are not before the Court if the period of said ad-hoc post is counted to determine seniority.

4. Counsel for the respondent also contends that the petitioner was given all the benefits of higher pay scale and other allowances while he was working on the said temporary post of Assistant and the selection process for appointing a person against a regular vacancy was different from selecting a person against temporary vacancy. It is further submitted by the counsel for the respondent that appointment of the petitioner in the work charged post of Assistant was co-terminus with the completion of project and the said post being ex-cadre post, no benefit of seniority could have been given to the petitioner for working in the project on the work charged post of Assistant (Works).

5. Counsel for the respondent in support of his argument has placed reliance on the judgment of the Supreme Court in Surendra Kumar Sharma v. Vikas Adhikari and Anr. . In the said judgment the Supreme Court has also made reference to another judgment of S.M.Nilajkar v. Telecom, District Manager, Karnataka 2 . Para 4 of the said judgment is reproduced below:

...It is common knowledge that the Government as a welfare State Floats several schemes and projects generating employment opportunities, though they are short-lived. The objective is to meet the need of the moment. The benefit of such schemes and projects is that for the duration they exist, they provide employment and livelihood to such persons as would not have been able to secure the same but for such schemes or projects. If the workmen employed for fulfillling the need of such passing-phase projects or schemes were to become a liability on the employer State by too liberally interpreting the labour laws in favor of the workmen, then the same may well act as a disincentive to the State for floating such schemes and the State may opt to keep away from initiating such schemes and projects even in times of dire need, because it may feel that by opening the gates of welfare it would be letting in onerous obligations entailed upon it by extended application of the labour laws.

6. I have heard the arguments advanced by counsels for the parties. I find force in the arguments of the counsel for the respondent. The petitioner was appointed on the temporary post of Assistant in a project initially for a period of six months and the terms and conditions for appointment to the said post were fully known to the petitioner although with the extension of project the petitioner also kept getting extensions but every time he was duly notified that the terms and conditions as contained in the initial Memorandum dated 10.5.1985 will remain the same. It is also an admitted case that the petitioner was not a senior most person in the cadre of the UDC and the other senior persons in the cadre of UDC at the relevant time might not have felt encouraged to apply for the said post knowing fully well that no special benefit of seniority would be given except benefit of scale and other allowances. It may be relevant to reproduce the following para taken out from the memorandum dated 10.5.1985:

Shri Som Nath is liable to be reverted without notice and any cause assigned during the period of his officiating appointment which will not entitle him to claim seniority over other Upper Division Clerks, who are senior to him in the cadre of Upper Division Clerks.

7. The terms of the aforesaid memorandum explicitly debars the petitioner from claiming any right of seniority over his seniors in the category of Upper Division Clerks and, therefore, under no circumstance the petitioner can be given benefit of reckoning the above period w.e.f. 10.5.1985 to claim seniority over his seniors. It is a well settled law that if the initial appointment for any post is on ad hoc basis and not according to rules then officiation in such post cannot be taken into account for fixation of seniority. In Dr. Anuradha Bodi and Ors. v. Municipal Corporation of Delhi and Ors. the Hon'ble Supreme Court vide determining the seniority of General Duty Medical Officers in Grade II, who had claimed seniority for the services rendered by them on ad hoc posts, held that no benefit of ad hoc officiation, which is not as per the rules can be given for determining the seniority. Yet in another judgment reported in Davinder Bathia and Ors. v. Union of India and Ors. Hon'ble Supreme Court held that the service rendered on the post without selection and on ad hoc basis cannot be counted for determining seniority. Para 6 of the said judgment is reproduced as under:

The post of Enquiry-cum-Reservation Clerk being a selection post, the persons like the appellants who were posted against those posts without going through the process of selection on ad hoc basis do not have a right to be in the cadre until and unless they are duly regularised after going through a process of selection. In the case in hand, this process of selection was made only in the year 1982 and the appellants have been absorbed in the cadre of Enquiry-cum- Reservation Clerks after being duly selected. In this view of the matter, their continuance on ad hoc basis from 1978 to 1982 cannot be counted for the purpose of their seniority in the cadre of Enquiry-cum-Reservation Clerk nor can they be held senior to the women candidates who were directly recruited as Enquiry-cum- reservation Clerks under the changed policy by undergoing a process of selection. In the aforesaid premises, we see no infirmity with the order of the Tribunal so as to be interfered with by this Court. The appeals are accordingly dismissed but in the circumstances there will no order as to costs.

8. In the present case also the petitioner was appointed only on ad hoc basis and vide memorandum dated 10th May, 1985 terms of appointment were made amply clear to the petitioner and the petitioner got finally selected against a regular vacancy for the post of Assistant only w.e.f. 22nd May, 1989, therefore, the petitioner is not entitled to claim benefit of the service he had put in on the said ad hoc post. The petitioner has made a grievance that he could not succeed to the level of Superintendent although having put in more than 17 years of service. This itself may not be a ground to come to the rescue of the petitioner unless he complains that any junior to him was considered for promotion to the rank of Superintendent by ignoring the seniority of the petitioner.

9. There is no merit in the writ petition.

10. Dismissed.