Sudesh Kumari Sareen vs Union Of India & Ors
2011 Latest Caselaw 644 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.4379/2010

%                      Date of Decision: 03.02.2011

Sudesh Kumari Sareen                                .... Petitioner
                   Through Mr.Rajeev Saxena, Advocate.

                                Versus

Union of India & Ors                                .... Respondents
                       Through Dr.Ashwani Bhardwaj, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS.JUSTICE VEENA BIRBAL

1.      Whether reporters of Local papers may            YES
        be allowed to see the judgment?
2.      To be referred to the reporter or not?            NO
3.      Whether the judgment should be                    NO
        reported in the Digest?


ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 12th March, 2010

passed by the Central Administrative Tribunal, Principal Bench in O.A

No.1513/2009 titled Smt.Sudesh Kumari Sareen v. Union of India

through Secretary, Ministry of Railways & Ors. holding that since the

petitioner was working on ad-hoc basis, therefore, during the period she

was working on ad-hoc basis, she is not entitled for counting that

period for grant of the benefits under the ACP Scheme and dismissing

her petition.

2. Brief facts to comprehend the disputes are that petitioner was

appointed as a staff nurse vide order No.225E/289-PE dated 28th June,

1985 in the grade of Rs.425-640 and was posted at Jagadhari workshop

in place of Smt.Mohinder Kaur who had been transferred to Lucknow.

Her appointment notice categorically stipulated that her appointment as

a staff nurse is purely on adhoc basis and her services are liable to be

terminated as and when selected candidate would be available from the

Railway Service Commission or replaced by the regular staff from other

divisions under the orders of transfers. It was also stipulated that she

would not have any claim for regular appointment till such time she

would be selected by Railway Service Commission.

3. Later on pursuant to selection, the services of the petitioner were

regularized in terms of notice No.752K/SM/CH/95 dated 17th June,

1995 with effect from 3rd January, 1992. Her seniority position was also

fixed as staff nurse below Ms.Radhika (Scheduled Caste) placed at serial

number 58 and above Mrs.Sushma Phillips placed at serial number 59

in the seniority list dated 5th May, 1994.

4. By a communication dated 31st March, 2004 regarding financial

upgradation under the ACP Scheme a clarification was given deciding

that 50% of temporary status of the casual labour service on absorption

in regular employment would be taken into account towards minimum

requirement of service of 12/24 years for the grant of benefit under the

ACP Scheme on the analogy that the same is also reckoned as

qualifying service for pension. Another employee of the respondent

Sh.Aturah Rehman Khan‟s ad-hoc service with effect from 4th August,

1982 to 25th February, 1996 were considered and he was given first full

benefit with effect from 1st October, 1999.

5. The petitioner was appointed as a staff nurse in the scale of

Rs.425-640/Rs.5000-8000 on ad-hoc basis on 1st July, 1985 and

regularized on 3rd January, 1992 and was promoted as Nursing Sister

(Rs.5500-9000/-) from 5th March, 2001, therefore, she claimed that she

be given financial upgradation under the ACP Scheme by reckoning her

service from 1st July, 1985 so that she becomes eligible for first

financial upgradation with effect from 1st October, 1999, the date on

which ACP Scheme came into force. The request of the petitioner to

reckon her service from 1st July, 1985 for granting the first upgradation

from 1st October, 1999 was declined by letter dated 26th June, 2008.

The order was passed in consultation with the Department of Personnel

and Training.

6. Aggrieved by the order of the respondent not reckoning her

services from the date of her appointment on ad-hoc basis that is 1st

July, 1985, she sought the copies of notings in her case under Right to

Information Act and relied on a noting dated 18th December, 2007. The

noting relied on by the petitioner is as under:-

" It is correct that the instructions on ACP, interalia, provide that adhoc service shall not qualify under the ACPS. However, it may also be kept in mind that the decision for allowing substitutes and casual labourers the benefit of ACP, was taken in-house, without consulting DOP&T. A possible rationale for giving this benefit was that in a massive organization like the Railways, such cases are very frequent where gap between date of casual appointment and date of regularization is, sometimes, very vast resulting in a big loss to an employee in terms of qualifying service and hence in terms of pension. The same logic applies in the case of adhoc appointments also. As such, extension of ACP benefit in the case of adhoc service appears to be logical, just and prudent and in the interest of equity & fair play. Incidentally, a precedent is worth mentioning here that recently, in a case of adhoc appointment of a clerk in NER, who was regularized after an extensively long period of 14 years, the employee was given the benefit of financial upgradation by reckoning his adhoc service for ACPS."

7. Aggrieved by the order dated 28th May, 2008 declining reckoning

of her service from 1st July, 1985 for the purpose of grant of first

upgradation, the petitioner filed an original application being O.A

No.1513/2009 which has been dismissed by the Tribunal. The Tribunal

relied on the ACP Scheme introduced by Railway Board for the railway

servants which categorically stipulates in para 2 that certain categories

of employees such as casual employees (including those with temporary

status), substitute, ad-hoc and contract employees shall not qualify for

benefits under the scheme. Consequently, it was held that the period

during which the petitioner was working as an ad-hoc employee cannot

be reckoned for the purpose of computing the first financial

upgradation under the ACP Scheme.

8. The petitioner has challenged the order of the Tribunal

contending inter-alia that she is entitled for parity as a substitute as

the respondent at one stage had considered her replacement as a

substitute as she was appointed in place of Mrs.Mohinder Kaur who

was transferred to Lucknow. According to her the confusion regarding

her status being an ad-hoc or a substitute had been put to rest on her

appointment as a regular employee. Once she had been regularized she

became entitled for all benefits including counting of the period of her

initial placement. The petitioner also relied on the definition of

qualifying service under Rule 3 sub Rule 22. It was contended that

under the rules it is clarified that once a person is appointed in any

capacity of a regular nature except being a casual labour or person

outsourced for some purpose he would be falling within the ambit of

regular servant and the services rendered by him/her are to be counted

for the purpose of working out the qualifying service. The petitioner also

relied on the case of Sh.Aturah Rehman Khan, employed in North-

Eastern Railways, whose period of ad-hoc service from 1st August, 1982

to 25th February, 1996 was counted and consequently the petitioner

claimed the benefit of the ACP. The petitioner also relied on the note

which is reproduced above stipulating that the respondent is a massive

organization which may have gaps between date of casual employment

and date of regularization which may result in a big loss to the

employee in terms of qualifying service.

9. The petition is contested by the respondents who filed a counter

affidavit dated 30th November, 2010 of Dr. Gajendra Kumar who

reasserted that respondent was appointed purely on ad-hoc basis and

she worked from 1st July, 1985 to 2nd January, 1992 on ad-hoc basis.

The petitioner was appointed on regular basis with effect from 3rd

January, 1992 and she was promoted as per her seniority in the grade

of Rs.5500-9000/- from 5th March, 2001 that is, next promotion was

given to her within nine years and two months of regular service.

Regarding the case of Sh.Aturah Rehman Khan for counting his ad-hoc

service pursuant to letter dated 25th April, 2007 it is contended that the

letter has been superseded by Railway Board‟s letter No.PV-

V/2005/ACP/5/NR dated 28th May, 2008 as well as GM/P letter No.

220-E/267/XX/EiiBii dated 26th June 2008 whereby the case of the

petitioner was subsequently rejected. The respondents‟ contention is

that on the basis of the case of Sh.Aturah Rehman Khan the petitioner

is not entitled for any benefit. According to them if the note to the ACP

Scheme categorically excludes reckoning of the service of an employee

as an ad-hoc, even if the services of Sh.Aturah Rehman Khan was

counted that will not entitle the petitioner to claim negative

discrimination and seek a direction to commit another violation of the

provisions of the ACP Scheme.

10. We have heard the learned counsel for the parties. This cannot be

disputed by the learned counsel for the petitioner that under the ACP

Scheme especially para 2, employees such as casual employees

(including those with temporary status), substitutes, ad-hoc and

contract employees are categorically excluded for qualifying for benefits

under the aforesaid scheme. This also cannot be disputed that the

appointment of the petitioner on 1st July, 1985 was an adhoc

employment in the grade of 425-640/-. Even if she was appointed in

place of Mrs.Mohinder Kaur who had been transferred to Lucknow on

8th June, 1985, the appointment of the petitioner shall be ad-hoc and

cannot be termed as a substitute appointment. In any case this

appointment was given to the petitioner pursuant to order dated 28th

June, 1985 and if the petitioner was of the opinion that her

appointment is not as an ad-hoc employee but as a substitute employee

according to rules of the respondent, the petitioner ought to have

challenged the same at that time. The petitioner cannot be permitted to

contend that she was not appointed as an ad-hoc employee but she was

a substitute employee almost after 24 years of her appointment.

11. This also cannot be disputed by the petitioner that she has not

challenged para 2 of the ACP Scheme excluding grant of benefit under

the scheme to the ad-hoc employees. Though challenge to the relevant

para of the scheme has not been claimed by the petitioner, yet

excluding the ad-hoc employees will not be applicable to her. The

petitioner cannot claim that despite the scheme which is not challenged

by her, she would be entitled for benefit under the scheme which

categorically excludes the period during which she was employed as an

adhoc employee.

12. Reliance has also been placed on Chandigarh Administration &

Anr. v. Jagjit Singh & Anr., (JT) 1995 (1) 445 holding that merely

because the respondent authority has passed an irregular order in case

of one person, the same will not be a ground to direct the same

authority to issue similar order in case of another person contrary to

rules. The ground of discrimination can be raised by the petitioner only

if the order passed in favour of a person is legal and in accordance with

rules which is not valid in her case. Thus the petitioner is not entitled

for any direction from this Court to issue a Mandamus contrary to rules

and to direct the respondent to violate the tenor of the relevant terms of

the scheme.

13. The note relied on by the petitioner also cannot change the terms

and conditions in the ACP Scheme. In any case the relevant paras of the

ACP Scheme has not been challenged by the petitioner and in the

circumstances the note which is detailed hereinabove cannot come to

her rescue. In the circumstances the petitioner has failed to make out a

case for reckoning her period of service as ad-hoc employee for grant of

benefit under the ACP Scheme.

14. Considering the totality of facts and circumstances the petitioner

has failed to make out any illegality or perversity in the order dated 12th

March, 2010 of the Tribunal declining to reckon her service as an ad-

hoc employee towards grant of ACP Scheme. In the circumstances,

there are no grounds to interfere with the order of Tribunal and the writ

petition is, therefore, dismissed. The parties are, however, left to bear

their own costs.

ANIL KUMAR, J.

FEBRUARY 03, 2011                              VEENA BIRBAL, J.
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