Dr. Ranjan Chandra vs Ministry Of Health And Family ...
2013 Latest Caselaw 4125 Del

$~32
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Decided on: 12.09.2013
+                                    W.P.(C) 1662/2007
       DR. RANJAN CHANDRA                   ..... Petitioner
                    Through : Sh. Nilansh Gaur, Advocate.

                            versus

       MINISTRY OF HEALTH & FAMILY WELFARE
                                             ..... Respondent

Through : Sh. R.V. Sinha, Sh. R.N. Singh and Sh. A.S. Singh, Advocates.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. The petitioner is aggrieved by an order of the Central Administrative Tribunal (CAT) dated 30.10.2006, dismissing his Review Application, R.A. No. 153/2006. The petitioner had claimed directions that the period of his ad-hoc service, i.e. effective from 15.09.1993 till he was appointed to the post of Specialist Grade-II (Radio Diagnosis) with effect from 03.07.1998 after selection through the regular channel, should be treated as regular.

2. The petitioner responded to an advertisement issued sometime in June 1993 in the Employment News. The respondents/Central Government, acting through the Andaman and Nicobar Administrative Secretariat stated in the advertisement (carried in the

W.P.(C)1662/2007 Page 1 Employment News) that the selected candidates shall be appointed against Specialist Grade-II post purely on temporary ad-hoc basis with the approval of Ministry of Health and Family Welfare. It is not in dispute that the petitioner was appointed on ad-hoc basis with effect from 15.09.1993 for one year; the Office Memorandum in that regard, issued on 10.09.1993 inter alia stated that:

"No.A.12026/9/93-CHS IV Government of India Ministry of Health & Family Welfare (Department of Health)

New Delhi, dated the 10th Sept, 93

OFFICE MEMORANDUM

SUBJECT: Ad-hoc appointment to the post of Specialist in Radio-diagnosis-Dr.Ranjan Chandra - regd.

       XXXXXX              XXXXXX             XXXXXX

       v)    The period of ad-hoc appointment will not bestow

on his/her any claim or right for regular appointment in the Central Health Service and that the period of ad-hoc appointment rendered by him/her will not count for the purpose of seniority and for eligibility for promotion, confirmation etc.

XXXXXX XXXXXX XXXXXX"

3. The petitioner's period of ad-hoc service was continued from time to time by various orders dated 16.09.1994, 27.04.1995, 19.10.1995, 04.12.1996 and 13.08.1997. Subsequently, pursuant to an advertisement issued by the Union Public Service Commission

W.P.(C)1662/2007 Page 2 (UPSC), inviting applications from amongst eligible candidates for the post of Specialist Grade-II Radio-Diagnosis, the petitioner had applied for the regular vacancy; he successfully participated in the recruitment process and later was duly appointed with effect from 03.07.1998.

4. In the light of the above facts and circumstances, the petitioner approached the CAT for the direction that the period spent by him on ad-hoc employment between 1993 and 1998 should be treated as regular employment. By the impugned order, the CAT dismissed the application. The petitioner had relied upon a previous decision of the CAT dated 27.05.1999 in O.A. 1315/1993 in which ad-hoc service of that applicant from 1986 till the period of regular selection by the UPSC was directed to be treated as regular employment.

5. It was argued by learned counsel Sh. Nilansh Gaur that the CAT fell into error in holding that the period of service between 1993 and 1998 spent by the petitioner was fortuitous and ad-hoc. It was submitted that the offer of appointment to the post was on the basis of a regular existing vacancy which remained unfilled despite several previous efforts on the part of the administration. The Andaman and Nicobar administration, therefore, advertised for filling the post on ad-hoc and temporary basis. Elaborating further, learned counsel argued that the petitioner was fully qualified to hold the post; he responded to public advertisement and his candidature and performance in the selection process was the basis of appointment. Thus all the prerequisites spelt-out or the standards required by Articles 14 and 16 had been fulfilled. In these circumstances, to deny

W.P.(C)1662/2007 Page 3 or refuse to treat the ad-hoc services as regular was unfair. Learned counsel relies on the decision of the CAT, Dr. Rakesh Verma v. UOI [O.A. No.1315/1993] and also cited the Constitutional Bench ruling in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra 1990 (2) SCC 715, especially propositions in paragraphs 47A and B. He emphasised that the corollary of regularization in service in accordance with rules after the previous spell of ad-hoc service entitled the employee to count such ad-hoc service as regular for seniority and all other service benefits. Learned counsel also relied upon the decision reported as State of West Bengal and Ors. v. Aghore Nath Dey and Ors. 1993 (3) SCC 371 where the previous ruling of Constitution Bench had been relied upon. He further relied upon the decision of the subsequent Constitution Bench in Rudra Kumar Sain and Ors. v. UOI and Anr. 2000 (8) SCC 25 and lastly upon the recent judgment in Debabrata Dash and Anr. v. Jatindra Prasad Das and Ors. 2013 (3) SCC 658. Lastly it was argued that not consulting the UPSC while selecting and appointing the petitioner on ad-hoc basis in 1993 in this case amounted to a mere procedural infirmity or irregularity and not a matter of substance that would come in way of treating previous ad-hoc service as regular for all service purposes.

6. Learned counsel for the respondent, i.e. Central Government submitted that the treatment meted to Dr. Rakesh Verma (supra) could not have been the basis for a declaration that the previous spell of service - which was purely ad-hoc, had to be treated as regular. Learned counsel emphasized upon the fact that the advertisement issued in 1993 clearly indicated that the post was being filled on ad-

W.P.(C)1662/2007 Page 4 hoc and temporary basis; he also relied upon Clause (v) of the offer of appointment dated 10.09.1993 issued to the petitioner where similar condition was attached at the time of appointment. Learned counsel also highlighted that the period of ad-hoc appointment was extended from time to time till eventually the petitioner competed for the post and was selected pursuant to UPSC advertisement in 1998. Learned counsel submitted that the rulings of the Supreme Court as well as the Division Benches of this Court are consistent on this aspect that both propositions A and B in para 47 of the Direct Recruit Class II Engg. Officers' Assn. (supra) judgment have to be read together. Learned counsel submitted that the judgment in UOI v. Avinash Mishra ILR (2008) Del 1119 rendered by another Division Bench clearly points out that the period of service spent by a public employee till he is regularly selected or recruited by the UPSC shall be deemed irregular and no benefit can accrue. It was submitted that the facts in that case were close, if not entirely identical to the circumstances of this case in that the rules required consultation with UPSC before the post itself can be filled. Learned counsel also relied upon two other Division Bench judgments - The Principal, University College of Medical Science v. Vinod Kumar and Ors. 2006 (5) AD (Delhi) 360 and Adarsh Chaudhary v. UOI 2002 (7) AD (Delhi) 465. It was stated that in addition, Aghore Nath Dey (supra) and Direct Recruit Class II Engg. Officers' Assn. (supra) have been in turn interpreted and applied by the latter Supreme Court in V.P. Shrivastava and Ors. v. State of M.P. and Ors. 1996 (7) SCC 759; UOI and Ors. v. Satish Chandra Mathur 2001 (10) SCC 185 and in Swapan Kumar Pal and

W.P.(C)1662/2007 Page 5 Ors. v. Samitabhar Chiakraborty and Ors. 2001 (5) SCC 581.

7. From the above discussion, there is practically no dispute about the facts of the case of which the salient features are as follows:

(i). The petitioner responded pursuant to public advertisement issued by the Andaman and Nicobar Administration in 1993, inviting application to the post of Specialist Grade-II (Radio-Diagnosis);

(ii). The advertisement itself stated that the appointment was to be made on purely ad-hoc and temporary basis;

(iii). The petitioner was selected to the post;

(iv). The appointment letter was issued to the petitioner 10.09.1993, which also indicated by clause (v) that the appointment was purely ad-hoc and temporary.

(v). A fresh advertisement was issued in 1997-98 inviting applications for filling the said post on regular basis, this time by the agency prescribed under the rules - UPSC.

(vi). The petitioner responded and participated in the selection process and was eventually appointed to the said post on regular basis with effect from 03.07.1998.

8. The decision in Aghore Nath Dey (supra) would indicate that the Supreme Court on the first occasion presented to it applied the Direct Recruit Class II Engg. Officers' Assn. (supra) held that the propositions A and B had to be read together while applying the law in Direct Recruit Class II Engg. Officers' Assn. (supra). Thus, if the initial assumption was contrary to the rules, proposition B could not be availed of by the employee. Later rulings have clarified further that the initial appointment, if contrary to the rules, would be deemed ad-

W.P.(C)1662/2007 Page 6 hoc even if the concerned or prescribed agency, such as UPSC is not consulted. This is evident from Swapan Kumar Pal and Ors. (supra) and two Division Bench rulings in Adarsh Chaudhary (supra) and Avinash Mishra (supra). The petitioner's attempt to state that the omission to consult the UPSC was a mere procedural infirmity cannot, therefore, be accepted.

9. As far as the decision relied upon in Rudra Kumar Sain and Ors. (supra) case is concerned, this Court notices that the dispute there was of usual kind concerning the seniority as between two classes of employees - direct recruits and promotees. The service in question was Delhi Judicial Service (DJS) and Delhi Higher Judicial Service (DHJS). The Constitution Bench ruled that in the circumstances of the case where the officers had been promoted in the manner prescribed by rulings even though the promotion exceeded the quota prescribed by them, such position would not deny them of seniority on the basis of prior service. Similarly in Debabrata Dash and Anr. (supra), para 44 clarifies that the service rendered by a Judicial Officer in Fast Track Court would not deprive him of the promotion as and when the vacancies in his parent cadre occur. That judgment does not assist the petitioner at all.

10. The Court is further of the opinion that reliance upon the Tribunal's previous ruling in Dr. Rakesh Verma (supra) cannot be of any assistance. In this regard it needs to be emphasized that a wrong decision as Dr. Rakesh Verma (supra) judgment appears to be, cannot be a basis for an officer similarly situated but equally disentitled, to claim parity on the basis of Article 14.

W.P.(C)1662/2007 Page 7

11. In view of the above conclusions, the Court is of the opinion that the petition lacks in merit. It is accordingly dismissed.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) SEPTEMBER 12, 2013 'ajk'

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