Delhi High Court
Ms. Nirmal Kanta vs Union Of India & Ors. on 27 November, 2013
Author: V. Kameswar Rao
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on November 11, 2013
Judgment Delivered on November 27, 2013
+ W.P.(C) No.3049/2002
Ms. Nirmal Kanta ..... Petitioner
Represented by: Ms.Avnish Ahlawat, Advocate
versus
Union of India & Ors. ..... Respondents
Represented by: Mr.Mukesh Kr. Gupta,Adv. for R-4
AND
W.P.(C) No.3050/2002
Ms. Nirmal Kanta ..... Petitioner
Represented by: Ms.Avnish Ahlawat, Advocate
versus
Union of India & Ors. ..... Respondents
Represented by: Ms. Raman Oberoi, Advocate for UOI
Mr.Roshan Lal Goel, Advocate for R-1
to R-3
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. The above captioned writ petitions, arise from order dated March 15,
2001 in Original Application No.2520/2000 (writ petition No.3049/2002)
filed by Ms.M.Sitalakshmi (referred as respondent No.4) and order dated
November 20, 2001 in Original Application No.1351/2001 (writ petition
No.3050/2002) filed by petitioner involving issue of inter-se seniority,
W.P.(C) No.3049-50/2002 Page 1 of 16
accordingly the two petitions are being disposed of by a common order.
2. The petitioner has filed W.P.(C) No.3049/2002 impugning the order
dated March 15, 2001 passed by the Central Administrative Tribunal in
Original Application No.2520/2000 wherein respondent No. 4 got the
benefit of ad-hoc promotion being treated as a regular one with effect from
September 10, 1997 as Junior Stenographer. In W.P.(C) No.3050/2002 the
petitioner impugns the order dated November 20, 2001 passed by the
Tribunal in Original Application No.1351/2001 wherein she was denied a
similar benefit as was given to respondent No.4 by the Tribunal which
resulted in respondent No.4 gaining seniority over and above respondent
No.4. The main relief prayed for by the petitioner in both the writ petitions
is to grant her the benefit of regularization from June 25, 1996 id est from
the date on which she was promoted to the post of Upper Division Clerk
(UDC) on ad-hoc basis.
3. The petitioner who is a SC candidate had joined the respondent
Nos.1 to 3 as LDC/Telephone Operator in Government of India Tourist
Office, New Delhi on July 07, 1987 on ad-hoc basis and was regularized to
the said post w.e.f. June 13, 1988. Respondent No.4 had joined the office of
Regional Director (North), Government of India Tourist Office, New Delhi
as a direct recruit LDC on June 09, 1992. The next promotional posts
available to both the petitioner and respondent No.4 were the post of UDC
as well as the post of Junior Stenographer.
4. According to the relevant Recruitment Rules in vogue, a LDC in the
said department is eligible for promotion to the post of Junior Stenographer
as well as to the post of UDC. The recruitment rules further provides that
the post of UDC is a non-selection post which is to be filled by way of
promotion from amongst the LDCs in the region with the minimum period
W.P.(C) No.3049-50/2002 Page 2 of 16
of eight years service in the said grade after their regular appointment
thereto and possessing the qualifications mentioned in Column 8 of the said
relevant Rules. The post of Junior Stenographer is a selection post, to be
filled by promotion failing which by direct recruitment. The promotion to
the said post of Junior Stenographer is available only to those LDCs who
have rendered their service for a minimum period of three years and who
successfully qualifies in the Departmental Examination in short hand and
typing.
5. On May 28, 1996, a circular was issued by the respondents wherein
all eligible LDCs in the Northern Region were invited to participate in the
Departmental Examination to be held on November 06, 1996 for filling up
a clear vacancy in the post of Junior Stenographer. It is evident from the
pleadings of the petitioner placed on record that since she was placed at
serial No.5 in the seniority list as well as being a SC candidate believed that
she would be automatically promoted to the post of Junior Stenographer
and hence, did not appear in the said Departmental Examination.
Respondent No.4 who was the only candidate in the said Examination was
selected and vide order dated September 10, 1997, she was promoted to the
aforesaid post purely on ad-hoc basis.
6. Meanwhile, on June 25, 1996 the petitioner was promoted to the post
of UDC on ad-hoc basis. It may be stated here that in terms of the seniority
position in the grade of LDC/Telephone Operator, the petitioner was at
serial No.5 and respondent No.4 was at serial No.10.
7. The appointment of respondent No.4 to the post of Junior
Stenographer was challenged in an Original Application being
No.2269/1997 by the petitioner along with Government of India Tourist
Office Staff Welfare Association seeking a direction to the respondents to
W.P.(C) No.3049-50/2002 Page 3 of 16
fill up the post of Junior Stenographer after taking into consideration the
Reservation Roster (SC candidates) and seniority and to give the petitioner
all consequential benefits. The said application was opposed the
respondents wherein it was pointed out that there are 10 ad-hoc promotes
including the petitioner and respondent No.4 herein. It was further pointed
out by the respondents that the petitioner who was working as Telephone
Operator has been since promoted as UDC and the Grades of UDC and
Junior Stenographer are the same. It was also pointed out that both
petitioner and other members of the Staff are not affected by the promotion
of respondent No.4 as Junior Stenographer on ad-hoc basis since no other
official had submitted their option to appear in the Departmental
Examination conducted for the purpose of promotion to the said post of
Junior Stenographer. However, the said Original Application was found to
be devoid of merits and dismissed by the Tribunal vide order dated May
26, 1998. The said order was challenged by way of writ and the same was
dismissed as well.
8. It has been stated by the petitioner in the instant writ petition at
paragraph 10 that a number of representations were made by the
Government of India Tourist Office Staff Welfare Association to the
Scheduled Caste and Scheduled Tribes Commission bringing to their notice
that post of Junior Stenographer should be filled up from amongst the
candidates belonging to the Scheduled Caste but till date the said post has
been filled by up candidates belonging to the unreserved category. The
effect of such representations, as implied by the petitioner, was that Under
Secretary to the Government of India in a correspondence dated September
11, 2000, addressed to the Assistant Director wherein it was, inter alia,
stated that the post of Junior Stenographer would be filled up on a regular
W.P.(C) No.3049-50/2002 Page 4 of 16
basis by a SC candidate through Sub-ordinate Staff Commission.
Thereafter, the respondents sent a requisition to DOP&T stating that a
regular post of Junior Stenographer is vacant and thus requested to
nominate a SC candidate possessing the requisite qualifications as per the
Recruitment Rules in vogue for the aforesaid post.
9. Vide order dated March 14, 2001, both the petitioner and respondent
No.4 were promoted to the posts of UDC and Junior Stenographer
respectively on regular basis w.e.f. March 13, 2001 till further orders. It
shall be pertinent to mention that in order to accommodate respondent No.4
on the said post of Junior Stenographer along with the SC candidate to be
appointed in the said post, one post of Senior Stenographer was
downgraded to the post of Junior Stenographer in which the respondent
No.4 was appointed on a regular basis from the aforementioned date.
10. However, the respondent No.4 being aggrieved by the endeavor of
the respondents Nos.1 to 3 to fill up the vacant post of Junior Stenographer
from SC category and further in order to seek regularization of her
appointment as Junior Stenographer with effect from the date of her ad-hoc
appointment to the same id est September 10, 1997, filed an Original
Application being No.2520/2000 before the Tribunal.
11. The Tribunal vide its order dated March 15, 2001 allowed the said
Original Application filed by the respondent No.4. The Tribunal at
paragraph 6 of the said order held as under:
"...It is clearly a matter of record that the applicant was
selected against a clear vacancy, through a proper selection
process, in accordance with the relevant Recruitment Rules
and therefore, she is correctly entitled for getting the benefit
of regularization from the date of her ad-hoc appointment as
laid down by the Hon'ble Supreme Court in the decisions
cited by the applicant. Respondents' action by their
proceedings dated 14.3.2001, giving her the benefit of
W.P.(C) No.3049-50/2002 Page 5 of 16
regularization w.e.f. 13.3.2001, does not meet with legal
requirement and calls for modification."
12. As an immediate effect of the aforesaid order of the Tribunal, the
petitioner also claimed regularization of her appointment as UDC with
effect from June 25, 1996 along with all consequential benefits and thus,
filed an Original Application being No.1351/2001. The case of the
petitioner before the Tribunal in a nutshell was that she was promoted from
the post of LDC to the post of UDC against a clear vacancy and therefore,
she should have been regularized with all consequential benefit from the
date of her ad-hoc appointment id est June 25, 1996 and not from the later
date of January 11, 2001. Per contra, it was argued by the respondents that
the petitioner was promoted against an ad-hoc vacancy created by the
promotion of the previous occupant's ad-hoc promotion. When the said
person was regularly promoted on January 10, 2001 a regular vacancy of
UDC was released wherein the petitioner was appointed on a regular basis.
Thus, it was for the aforementioned reasons, the petitioner's appointment
was not regularized with effect from the date of the ad-hoc appointment.
13. The Tribunal found substance in the contention of the respondents
when it noted the fact that the petitioner's promotion as UDC was not
against a clear cut regular vacancy but only against an ad-hoc vacancy
following the promotion of one Smt. Shashi Khera, who was given ad-hoc
promotion to the higher grade of Information Assistant and such
appointment was regularized only in 2001 thereby releasing the vacancy of
UDC on a regular basis. Therefore, while holding that the petitioner could
not have been promoted on a regular basis against an ad-hoc vacancy and
she has no claim for such promotion and such claim cannot be entertained,
the Tribunal in its concluding paragraph of the impugned order dated
W.P.(C) No.3049-50/2002 Page 6 of 16
November 20, 2001 held as under:
"...The benefit of ad hoc service would be considered for the
purpose of seniority and regularization only if such
promotion was against a regular and clear cut vacancy and
the promotion was in accordance with law. Vacancy of UDC,
to which the applicant was promoted in 1996 was only ad
hoc vacancy and, therefore, the applicant could not have
been promoted on a regular basis to that post. The
respondents have, in the circumstances, correctly acted and
their action cannot be assailed in law."
14. Ms.Avnish Ahlawat, learned counsel for the petitioner would submit
that the effect of the orders of the Tribunal in both the Original
Applications is that the respondent No.4 who was junior to her in the grade
of LDC has marched over the petitioner in seniority without her being a
party in the litigation. She would submit that even though the respondent
No.4 got the benefit of ad-hoc service on the post of Junior Stenographer
for the purpose of eligibility to the promotion post of Information
Assistant. She would also submit that the denial of similar benefit of
treating the promotion as UDC on regular basis from the date the petitioner
was appointed on ad-hoc basis i.e. June 25, 1996 as has been treated in the
case of respondent No.4 in the grade of Junior Stenographer is illegal and
arbitrary.
15. On the other hand, Mr.M.K.Gupta, learned counsel for the
respondent would submit that the Original application filed by the
petitioner is not maintainable inasmuch as the petitioner had earlier filed
Original Application No.2269/1997 along with Staff Welfare Association
for a direction to fill up the post of Junior Stenographer after taking into
consideration the reservation roster. According to them the petitioner
having challenged the appointment of the respondent No.4 in a separate
proceeding facilitate the same issue. Further he would support the judgment
W.P.(C) No.3049-50/2002 Page 7 of 16
of the Tribunal dated March 15, 2001 which is in favour of respondent
No.4 wherein according to him the Tribunal has concluded that the
promotion of respondent No.4 is against a clear vacancy of Junior
Stenographer, and the petitioner could not have lay a further claim for
seniority over and above the respondent No.4.
16. Ms.Raman Oberoi and Mr.Roshan Lal Oberoi, learned counsels
appearing for Union of India would state that the seniority would be
determined in terms of the outcome of these writ petitions. According to
them in terms of the order of the Tribunal dated March 15, 20011 in
Original Application No.2520/2000 the respondent No.4 has been shown
senior to the petitioner.
17. The first and foremost question that arises for our consideration is
whether the petitioner could lay a challenge to the order dated March 15,
2001 passed in Original Application No.2520/2000 wherein she was not a
party respondent.
18. The Supreme Court in its opinion reported as (1997) 6 SCC 473
K.Ajit Babu vs. Union of India has held that if a person is aggrieved by a
judgment wherein he is not impleaded as a respondent, the judgment would
not bind the said person effected and that the person concern would have a
right to maintain an independent substantive petition before the appropriate
forum.
19. In the present case the petitioner has not filed any substantive
petition before the Tribunal. Since she has filed these writ petitions against
the order November 20, 2001 passed in Original Application No.1351/2001
filed by her seeking a similar relief and against order dated March 15, 2001
in Original Application No.2520/2000 coupled with the fact that no serious
objection has been raised about the maintainability, we proceed to decide
W.P.(C) No.3049-50/2002 Page 8 of 16
both the petitions.
20. A further question that would arise for our consideration in these writ
petitions is whether ad-hoc promotion of respondent No.4 can be treated as
a regular promotion, which resulted in respondent No.4 gaining seniority,
in the combined seniority list, over and above the petitioner, by granting
similar benefit to the petitioner.
21. Before we deal with the submissions of the counsel for the parties we
would like to reproduce the contents of the appointment letter with regard
to ad-hoc promotion and regular promotion of respondent No.4. The same
are as under:-
Ad-hoc Promotion Order
No. Admn. 1 (1) /92. Dated the 10th Sept. 97
ESTABLISHMENT ORDER
The following officials in this office are hereby
promoted as U.D.C. and Jr. Stenographer in the pay scale of
Rs.1200-2040 on ad-hoc basis against purely short-term ad-
hoc vacancies with immediate effect and until further
orders:-
1. Smt.Renuka, LDC Promoted as U.D.C.
2. Smt.M.Sitalakshmi, LDC Promoted as Jr.Stenographer
The appointments purely on ad-hoc basis and do not
confer any title to or claim for seniority and regular
appointments. Further, they are liable to be reverted without
notice and without reasons being assigned at any time if
circumstances so warrant.
Regular Promotion Order
No.Admn.1(8)/2001 Dated: 21st May, 2001
W.P.(C) No.3049-50/2002 Page 9 of 16
ORDER
In partial modification of this Office Oder No.Con-
Admn.(3)/86 dated the 14th March, 2001,
Smt.M.Sitalakshmi, LDC, who has been officiating as Junior
Stenographer on ad-hoc basis w.e.f.10.09.1997, is hereby
promoted as Junior Stenographer on regular basis w.e.f.
10.09.1997 in the pay scale of Rs.4000-100-6000.
2. Smt.M.Sitalakshmi will be on probation for a period of
two years.
3. This order has been issued with the approval of
Director General (Tourism), in compliance with the
judgment/order dated 15.03.2001 passed by Hon'ble
Central Administrative Tribunal, Delhi in
O.A.No.2520/2000 filed by Smt.M.Sitalakshmi, Junior
Stenographer v/s Union of India and others".
22. The next higher post of UDC/Jr.Stenographer is that of Information
Assistant. The Recruitment Rule as placed on record stipulates the
eligibility for promotion as under:
Name of xx xx xx Whether selection by xx xx xx xx xx Method of recruitment Grade from xx xx
post merit or selection cum whether by direct recruit- which recruitment
seniority or non select- ment or by promotion or by promotion or
ion post by deputation/absorption deputation or
and percentage of the absorption or short-
vacancies to be filled by term contract or
various methods re-employment
is to be made
xx xxx xx xx xx xx xx xx xx xx Xx xx xx xx
Information Selection-cum-seniority By direct recruitment- Promotion :-Upper xx xx
Assistant or selection by merit 80% by promotion-20% Division Clerk,
Stenographer, Film
Projector Operator
And Junior Hindi
Translator with 8
Years regular
Service in the
grade
23. It is an accepted position that promotions which were granted to the
petitioner, as UDC and to respondent No.4, as Junior Stenographer with
effect from June 25, 1996 and September 10, 1997 were ad-hoc with a clear
stipulation that such a promotion would not confer any title to or claim for
seniority and regular appointments. The promotion in so far as the
petitioner is concerned as UDC was effected because of promotion of one
Ms.Shashi Khera who was given ad-hoc promotion on a higher grade of
Information Assistant. In so far as respondent No.4 was concerned she was
given promotion as Junior Stenographer on ad-hoc basis against a vacancy.
A regular promotion is made strictly in accordance with the recruitment
rules considering all the candidates who come within the zone of
consideration with a clear mandate that such a promotion would be regular
in nature. The order of promotion of respondent No.4 does not reflect so. It
is also noted that the respondent No.4 has never challenged her promotion
on ad-hoc basis with effect from September 10, 1997. In the absence of any
challenge she could not have filed the Original Application No.1350/2001
much later for treating the promotion as on regular basis. The promotion
orders issued to the respondent No.4 reproduced above, a comparison of
the same, would reveal that when a regular promotion is made, the
respondent No.4 was put on probation for two years. The same was
effected after the approval granted by the Director General (Tourism)
whereas the respondents No.1 to 3 have come on record that for making ad-
hoc promotions the examination was conducted by the Assistant Director
(Admn.) and pursuant thereto the Regional Director, appointing authority
in the case had approved the ad-hoc promotion of the respondent No.4.
There is nothing on record to show that the selection committee as
stipulated in the Rules i.e. Regional Director, Assistant Director (Admn.) a
departmental officer of the level of the Assistant Director and outside
officer of the level of the Assistant Director in the department of Tourism
was constituted at the time of ad-hoc promotion.
24. So, two aspects: (i) respondent No.4 not put on probation; (ii)
Selection Committee not constituted as per rules, would not make the
promotion a regular one or can be said to have the trappings of a regular
promotion. The Supreme Court in its opinion reported as (2012) 8 SCC 633
has in para 20 has held as under:-
"20. A reading of order dated 16-10-1995 issued by
District Education Officer, Panipat makes it crystal clear
that even though Respondent No. 1 - Vijay Singh was
appointed as Science Master on the recommendations of the
District Level Committee, his appointment was purely ad
hoc with a tenure of six months or till the availability of a
candidate for regular appointment, whichever was earlier.
The other Respondents were appointed in the same manner
with similar stipulation. The reason why the Respondents
were appointed on purely ad-hoc basis is not far to seek.
The concerned District Education Officers did send
requisitions to the Employment Exchanges and
appointments were made on the recommendations of the
District Level Committee but all this was not in consonance
with the mandate of the 1955 Rules and Notifications dated
28-1-1970 and 29-6-1973. At the cost of repetition, we deem
it proper to mention that in terms of Rule 3 of the 1955
Rules, only the Director was competent to make
appointments on the posts to which those rules were
applicable with the exception that Divisional
Inspector/Inspectress of School or the Principals of
Government Colleges could make temporary or officiating
appointments on certain posts for a maximum period of
three months. After the Board was constituted vide
Notification dated 28-1-1970, the Director could make
appointment only on the recommendation of the Board
unless the State Government was to issue notification under
proviso to Clause 6 of Notification dated 29-6-1973. In
terms of Rule 8 of the 1955 Rules, every person appointed
by direct recruitment was required to be placed on
probation for a period of one year. The Respondents were
neither appointed by the Director on the recommendations
of the Board nor they were placed on probation. As a matter
of fact, they were appointed on purely ad hoc basis without
following the procedure prescribed for regular
appointment. Therefore, the mere fact that the ad hoc
appointments of the Respondents were preceded by sending
requisitions to the Employment Exchanges and
recommendations by the District Selection Committee
cannot lead to an inference that they were appointed on
regular basis".
25. Further it is noted the next promotion post was that of Information
Assistant. The feeder posts for that post includes
UDC/Jr.Stenographers/Film Projector Operator/Junior Hindi Translator and
the promotion is effected through selection cum seniority method or
selection cum merit method having 8 years of regular service in the grade.
In other words seniority would have a role to play if the merit being same.
As we have concluded that the promotion of the respondent No.4 was on
ad-hoc and not as regular, the order of the Tribunal would be also
unsustainable as it would give benefit of ad-hoc service for eligibility for
promotion to the post of Information Assistant to respondent No.4 much
before the petitioner who was above in seniority.
26. The Tribunal could not have determined the issue of promotion of
respondent No.4 as a regular without ensuring persons whose seniority to
be effected, like the petitioner herein, are joined as party respondents. We
agree with the submission of Ms.Ahlawat that when UDC/Junior
Stenographer/Film Projector/Junior Hindi Translator are feeder posts for
Information Assistant then it was required for the respondent No.4 to make
the petitioner a party.
27. The position of law as to whether an ad-hoc promotion can be treated
as a regular one and for that matter for the purpose of seniority is very well-
settled. In its opinion reported as (2002) 2 SCC 306 Md.Israils & Ors. vs.
State of West Bengal & Ors. the Supreme Court has held as under:
"9. XXXXXXXXXXX
We are, however, not persuaded to accept this submission of
learned counsel for the respondents. In view of the analysis
of different provisions of Recruitment Rules, the West Bengal
Public Service Commission (Consultation by Governor)
Regulation, West Bengal Public Service Commission
(Exemption from Consultation) Regulation, we have no doubt
that the initial appointment of respondents 6 to 30, purely on
ad hoc basis without consultation with the Public Service
Commission cannot be held to be a regular service in the
cadre of Employment officer, and as such the same cannot be
counted for the purposes of reckoning their seniority in the
cadre."
In the case reported as (2008) Vol.1 SCC 747 R.K.Mobisana Singh
vs. K.H.Temba Singh & Ors. the Supreme Court has held as under:
"39. Applying the principles of the aforementioned decisions
to the facts of this case, we are of the opinion that although
in terms of the office memorandum, no retrospective effect
could be given to the order of regularisation passed in favour
of the promotees, as in absence of any seniority rules
operating in the field, the State was required to evolve a
policy. It for its own reason did not do so.
40. The office memorandum of 1959 was applicable in a case
of this nature. In some of the cases, promotion might have
been given without following the rules. When promotion is
given only in the exigency of situation without following the
Rules, the period cannot be counted towards seniority.
41. If they had been given regularisation with retrospective
effect, the same by itself may not be a ground to apply the
said order ipso facto for determining the inter se seniority.
Seniority although is not a fundamental right but a civil right.
Such a right of the direct recruits could not have been taken
away without affording an opportunity of hearing to them.
42. It was obligatory on the part of the official respondents to
take into consideration that the retrospective regularization
could be granted only when there exists such a rule. If rules
were not followed at the time of grant of promotion, question
of grant of regularization with retrospective effect would not
arise. Retrospective regularization whether in terms of the
directions of the High Court or otherwise, thus, although
could confer other service benefits to the officer concerned,
but the same cannot be held to be of any assistance for
reckoning seniority with retrospective effect."
27. In so far as the submission of Mr.M.K.Gupta, learned counsel for
respondent No.4 that in view of the Original Application filed by the
petitioner No.2269/1997 along with Staff Welfare Association has been
dismissed, the Original Application filed by the petitioner, from which one
of the impugned order arises, was not maintainable, has to be rejected.
This we say so the Original Application No.2269/1997 was filed by the
petitioner and the staff association only seeking a relief to the limited
extent that the post in question of Jr.Stenographer has to be filled by a
Scheduled Caste category candidate to which the petitioner belongs.
Counting of ad-hoc service for the purpose of seniority was not an issue.
28. Further his submission that the promotion of respondent No.4 was
against a clear vacancy is concerned the same also does not attract us. This
we say so, mere existing of a vacancy and promotion of a person on such a
vacancy on ad-hoc basis without following the Recruitment Rules would
not qualify such a promotion as regular one. We have already held that the
promotion of respondent No.4 did not have the trappings of the regular
promotion. Hence the conclusion of the Tribunal in its order dated March
15, 2001 in Original Application No.2520/2000 is clearly untenable against
settled position of law reproduced above.
29. In so far as relief prayed for by the petitioner seeking the same
benefit as has been given to the respondent No.4 by the Tribunal is
concerned, we hold that she would not be entitled to any parity more so, as
we have held the directions given in Original Application No.2520/2000
for treating the ad-hoc promotion of respondent No.4 as regular as
unsustainable. In view of this conclusion, the writ petition filed by the
petitioner No.3050/2002 challenging the order dated November 20, 2001 in
WP(C) No.1351/2001 is liable to the dismissed. In so far as the WP(C)
No.3049/2002 filed by the petitioner challenging the order dated March 15,
2001 in Original Application No.2520/2000 is concerned, the same is liable
to be allowed. The order of the Tribunal directing to treat the promotion of
respondent No.4 as regular is set aside. Consequently Original Application
No.2520/2000 filed by the respondent No.4 before the Tribunal is
dismissed.
30. No order as to costs.
(V.KAMESWAR RAO)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
November 27, 2013
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