Union Of India & Ors. vs R.S.Atal
2013 Latest Caselaw 46 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision: January 04, 2013

+                        WP(C) 4339/2012

      UNION OF INDIA & ORS.                         ..... Petitioners
          Represented by: Mr.Rajesh Katyal, Advocate.

                   Versus

      R.S.ATAL                                           ..... Respondent
           Represented by:      Ms.Minal Sehgal, Advocate for
                                Mr.M.K.Bhardwaj, Advocate.
      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J. (Oral)

1. The respondent R.S.Atal had a not too happy career with the Director- General, Department of Culture, National Museum, New Delhi. He joined service on ad-hoc basis with the National Museum as a Gallery Attendant on February 04, 1978 and was regularized on said post on May 26, 1981. On November 30, 1996 he was appointed to a post in a higher pay-scale on ad-hoc basis for a period of 6 months; and the post is that of a Museum Lecturer, since redesignated as Assistant Curator.

2. Being relevant it needs to be highlighted that R.S.Atal's appointment, albeit ad-hoc, as a Museum Lecturer was not fortuitous inasmuch as it was preceded by inviting applications through the Employment Exchange and after circulating the vacancy amongst various departments. A Departmental Selection Committee was constituted to interview the various applicants and draw up a panel.

3. Notwithstanding that the office order dated September 27, 1996, pursuant where to applications were invited, expressly stating that the post of Museum Lecturer was in the pay-scale `1400-2300/-, R.S.Atal was paid a monthly honorarium and it was only when the Central Administrative Tribunal directed vide order dated January 28, 2003 that he should be paid salary in the scale applicable, was he paid salary as a Museum Lecturer in the scale applicable; and suffice would it be for us to highlight that it is plain evident that he continued to work as a Museum Lecturer though his ad-hoc appointment with effect from November 30, 1996 was only for a period of six months.

4. R.S.Atal filed O.A. No. 1438/2002 praying that having worked since November 30, 1996 as a Museum Lecturer his services should be regularized to said post, which relief was declined inasmuch as the existing Recruitment Rules for the post in question did not permit so.

5. He filed O.A. No.516/2006 which was disposed of by the Central Administrative Tribunal vide order dated March 10, 2006 directing the employer to consider amending the Recruitment Rules and till decision was taken status quo was directed to be maintained, against which order the Department filed a writ petition registered as No.1966/2007 in this Court which was ultimately withdrawn on April 16, 2012.

6. On July 12, 2008, the amended Recruitment Rules had been notified and after withdrawing W.P.(C) No.1966/2007 the Department passed an order on April 26, 2012 holding that R.S.Atal was not found eligible to be appointed on permanent basis as a Museum Lecturer; redesignated as Assistant Curator.

7. The reason was not that he did not possess the necessary educational and experience qualifications but the fact that the prescribed mode to fill up

the post was direct recruitment with age limit of 30 years relaxable by 5 years for government servants was the cause of the obstruction i.e. over aged.

8. R.S.Atal's age of superannuation was nearing. He had to superannuate on July 31, 2012. Since the year 1996 he had worked as a Museum Lecturer, a Group C post in the scale applicable and just three months prior to his superannuation he saw a reversion staring him in the face.

9. He filed O.A. No.1576/2012 which has been disposed of by the Tribunal vide impugned order dated July 6, 2012 quashing the order dated April 26, 2012 reverting him to the post of a Gallery Attendant, a Group D post; additionally directing that he would be permitted to work as an Assistant Curator till he superannuated on July 31, 2012.

10. The challenge in the instant writ petition is to the direction that R.S.Atal would be permitted to work as an Assistant Curator till he superannuated on July 31, 2012.

11. When confronted with the fact that the facts hereinabove noted, none of which are in dispute, would reveal that R.S.Atal had worked since November 30, 1996 as a Museum Lecturer (post redesignated as Assistant Curator) till when the order dated April 26, 2012 was issued, and posed with the question what harm has it caused to the writ petitioner when R.S.Atal was permitted to serve till he superannuated i.e. for three more months, learned counsel for the writ petitioner fairly concede that none except the recurring liability to pay pension to R.S.Atal with reference to his last pay drawn.

12. What would this mean?

13. If R.S.Atal would be reverted to the post of Gallery Attendant, a Group D post, his pay with effect from April 26, 2012 would have been reduced in the pay-scale applicable and for the remainder of his life, having served the Department since the year 1978, he would have received a pension which would be nearly half of what he would have received if he had continued to work till he superannuated as an Assistant Curator.

14. Pension is not a bounty. It is settled law. It is earned by a dint of hard work by a government servant, which R.S.Atal did. It is not a case where services of R.S.Atal had been made permanent or he had been regularized in service. Nobody's seniority is involved. It is simply a case where R.S.Atal worked ad-hoc on a higher post since November 30, 1996 till he was sought to be reverted on April 26, 2012 ignoring that no other candidate had been selected for the post in question and R.S.Atal was to superannuate within the next three months; it was obviously an act not in good faith by the Department to revert him and thereby cheat him of the pension which he had earned.

15. Learned counsel for the petitioner cites three judgments before us and beseeches that the ratio contained therein would justify the action taken by the Department. The first decision is reported as AIR 1999 SC 1596 Punjab State Electricity Board & Anr. vs. Baldev Singh. The second decision is reported as AIR 2011 SC 3162 State of Uttarakhand & Anr. vs. Archana Shukla & Ors. The third decision is AIR 2006 SC 1806 Secretary, State of Karnataka vs. Uma Devi & Ors.

16. As regards the first decision, it simply holds that reversion of an ad-hoc employee to the substantive post was not penal and did not warrant any opportunity of being heard. The court noted that working as an Assistant Lineman on substantive basis, Baldev Singh was on ad-hoc basis

ordered to work as Charge I Mate and ever since said posting he remained absent and did not even assume the charge. Said case was not of Baldev Singh having worked on ad-hoc basis to the higher post for 26 years, as is the instant case; and we highlight that R.S.Atal worked ad-hoc as an Assistant Curator since November 30, 1996 till April 26, 2012.

17. The second decision cited pertains to regularizing services of ad-hoc employees with reference to the seniority and clarifies that law recognizes seniority to be assigned only with effect from the date a person is substantively appointed to a post. The issue at hand in the instant case does not pertain to seniority.

18. Uma Devi's case pronounced by the Constitution Bench prohibits courts from directing regularization of daily wage, temporary or contractual employee in the absence of posts available; en-mass regularization automatically results in directing creation of posts. However, as per the observations made in paragraph 44 of the decision, regularization of service is permissible where an ad-hoc employee has worked for years together against a duly sanctioned post.

19. This is what has happened to R.S.Atal. The post of a Museum Lecturer redesignated as Assistant Curator was a sanctioned post lying vacant when he was promoted to said post on ad-hoc basis. His appointment was not a back door appointment. The vacancy was notified to the Employment Exchange and to all the departments of the Government of India. A DPC was constituted and the recommendations thereof pertaining to R.S.Atal were implemented.

20. Thus, on the peculiar facts of the instant case we do not find any infirmity in the view taken by the Central Administrative Tribunal and thus we dismiss the writ petition but without any order as to costs.

CM No.9003/2012 & CM No.9384/2012

Since the writ petition has been disposed of, both the applications, being CM No.9003/2012 seeking ad-interim stay of the impugned order dated July 6, 2012 till the disposal of the writ petition and CM No.9384/2012 seeking vacation of the stay order dated July 24, 2012 passed in CM No.9003/2012 by this Court, are disposed of as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(VEENA BIRBAL) JUDGE JANUARY 04, 2013 srb