Indian Council Of Agricultural ... vs Shri Yog Raj Singh
2014 Latest Caselaw 4164 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Decided on: 04.09.2014
+      W.P.(C) 2952/2014, C.M. NO.6139/2014
       INDIAN COUNCIL OF AGRICULTURAL RESEARCH AND
       ANR.                                   ..... Petitioner
                Through : Sh. K. Pushkar, Advocate.

                          versus

       SHRI YOG RAJ SINGH                          ..... Respondent

Through : Respondent in person.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

1. In these writ proceedings under Article 226 of the Constitution of India, the petitioners (hereafter the "ICAR") challenge the order of the Central Administrative Tribunal ("CAT") dated 3.1.2014 in O.A. No.1301/2012, on the ground that the CAT wrongly computed the respondent's period of service from 1971, instead of 1978, and accordingly directed the grant of the second financial upgradation in the Assured Career Progression Scheme ("ACP").

2. The respondent was appointed as Junior Stenographer (re- designated Stenographer in September 1971) on 31.8.1971, subject to his passing the shorthand test, within 6 months from the date of appointment to the post. He qualified in the test of 19.4.1978.

W.P.(C) 2952/2014 Page 1 Consequently, his seniority was fixed from this date, in accordance with clause 5 of the appointment memo dated 31.8.1971.

3. The respondent was issued an appointment order dated 31.8.1971, and then regularised with effect from 19.4.1978.He retired on 31.1.2008. On a representation of the respondent on 5.1.2001, he was granted second financial upgradation in the ACP Scheme with effect from 19.4.2002. His next representation dated 27.4.2011, seeking second ACP upgradation with effect from 9.8.1999 and not 19.4.2002, was rejected by the DPC on 1.1.2012, on the basis of para 3.1 of the OM of the Department of Personnel and Training ("DoPT") No. 35034/1/97-Estt (D) dated 9.8.1999. Aggrieved, he moved the CAT, seeking parity with another employee, one Ms.Jeevan Asha.

4. Before the CAT, he argued that Ms.Jeevan Asha passed the stenography test, and was consequently regularised on 16.5.1980, while he was so regularized on 19.4.1978; that Ms. Asha was given ad-hoc appointment dated 24.1.1978, while he was given the same from 31.8.1971. In the seniority list for that grade, he was shown at Sl. No. 36, and Ms. Asha at Sl. No. 41.Yet, when Ms.Asha represented to the petitioners on 4.2.2011 for grant of 2nd ACP upgradation, it was granted to her with effect from 24.1.2002 by office order dated 18.3.2011. The respondent argued that that if Ms. Asha could be granted the second upgradation by computing the 24 years from the date of her adhoc appointment, then likewise, he too should be entitled to have his service computed from the date of adhoc appointment. Failure to recognise his entitlement was contrary to

W.P.(C) 2952/2014 Page 2 Articles 14 and 16 of the Constitution. It was also sought to be argued that ACP benefits should be granted after including the duration of ad- hoc service.

5. The respondent further argued that the first stenography test after his appointment was only conducted in 1976, owing to which he could not possibly have taken the test earlier. Moreover, his probationary period must have been treated to be complete as of 31.8.1973, two years from the date of his initial appointment order, and that this period could not possibly be treated as adhoc service, as evidenced by the fact that an appointment order, such as the one issued to him with effect from 20.4.1978, declaring an employee as "quasi-permanent" can only be issued after 3 years of regular service. Since the ACP was introduced in August 1999, the respondent completed 24 years of service as of 20.4.1995, he was thus entitled to the 2nd ACP from the time the ACP came into force i.e. August, 1999.

6. The CAT allowed his application stating:

"7. ... It is seen that the Applicant was appointed as Junior stenographer against a temporary post vide the Respondents Memorandum No.Ad. 1/1-14/71 dated 31.08.1971 and he joined that post on 06.09.1971. According to the said Memorandum the aforesaid post is pensionable. The Applicant was on probation for two years.

According to the said Memorandum, he was required to pass the test in shorthand at the speed of 100 w.p.m. within a period of six months of joining the post and failure to complete the period of trial to the satisfaction of the competent authority/failure to pass the examination will render him liable to be discharged from service. Exactly similar Memorandum No.4-39/77-P.II dated 20.01.1978

W.P.(C) 2952/2014 Page 3 was also issued to his junior colleague Miss Jeevan Asha. Thereafter, the Respondent No.2 declared that the Applicant has satisfactorily completed his probation period w.e.f. 19.04.1978. Once period of probation has been declared having completed within the initial period of 2 years or within the extended period, his service was to be considered regular from the initial date of appointment for all purposes. Accordingly, the Respondent No.2 itself has appointed the Applicant as quasi-permanent w.e.f. 20.04.1978. Therefore, the Applicant has passed the stenographic test only on 19.04.1978 is no more a reason to deny him any benefits and consequently, he is entitled to be treated as a Junior Stenographer with effect from his initial date of appointment i.e., 06.09.1971. That was the reason why the Screening Committee at its meeting held on 09.03.2011 recommended the case of his junior colleague Smt. Jeevan Asha and granted her the 2nd ACP only w.e.f. 24.01.2002 taking into consideration of her 24 years of service w.e.f her initial appointment as Junior Stenographer w.e.f. 24.01.1978. Therefore, the contention of the Respondents that this case is hit by delay and latches has no merit. Hence, the decision of the Screening Committee held in the case of the Applicant on 01.02.2012 is not only absolutely wrong and illegal but it is also arbitrary. The Respondents could not have discriminated the applicant giving absolutely wrong reasons. The Applicant being a retired person, the Respondents on their own should have gracefully granted the 2nd ACP benefit to him from the due date.

8. We, in the above facts and circumstances allow this CA and set aside the order dated 01.02.2012. We also direct the Respondents to grant the benefit of 2 ACP to the Applicant w.e.f. 09.08.1999 with all the consequential benefits."

W.P.(C) 2952/2014 Page 4

7. ICAR's case is that stenography tests were held on 7.3.1976 and 12.10.1976; the respondent, however, did not pass them. Yet, the respondent was retained till 18.4.1978 in ad-hoc service, gratuitously, despite the rules rendering him liable to be discharged from service for having failed the examination. His entire service, including the period of his ad-hoc service, was considered for the purposes of pension and other retiral benefits. Placing reliance on Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, (1999) 2 SCC 715, it was argued that the initial appointment of the respondent was contrary to the recruitment rules, as he did not clear the stenography test, and thus must be considered as adhoc; the date of such appointment cannot be considered for computing seniority. Next, it was argued that parity cannot be sought with Ms. Asha as her appointment was on compassionate grounds, and not through the direct recruit examination. In fact, the CAT had dismissed the OA of another employee, Ms. Kanta Bajaj, whose regularization was not granted from the date of commencement of ad-hoc service. The disparate treatment of Ms.Kanta Bajaj and the respondent by the CAT, in its orders was indicative of arbitrariness. Third, the petitioners argued that the respondent's seniority was fixed in accordance with Clause 5 of his appointment order. Finally, it is submitted that the representation that was made in 2002 was only for the purpose of giving rise to a cause of action to defeat the rule on limitation, seeing as it was made several years after the rejection of the previous one. It was argued that several representations had been made on 23.7.1986,

W.P.(C) 2952/2014 Page 5 17.5.1988, and 5.6.2002. This fact, it is averred, was ignored by the CAT.

8. The respondent/applicant argued that CAT's order should not be interfered with. He urged that the finding that his service should have been reckoned from initial appointment, or at least from date of expiry of two years - in 1973 is sound. Submitting that he could not be treated differently from others who like him cleared the test later, the respondent urged that ICAR acted in a discriminatory manner.

9. This Court notices that appointment order of the respondent dated 31.8.1971 states, in its terms, that the post is "temporary", but will be entitled to pensionary benefits. There appears to be some confusion in the typed copies placed on record, as to the actual content of Clause 5 of this order. Clause 5 as reproduced by the writ petitioner is inconsistent with Clause 5 in the copy of the appointment order of 31.8.1971 placed on record. However, without going into this question, it is apparent that this was an order made to only confer a temporary post upon the respondent. When he passed the stenography test on 19.4.1978, a notification was issued on 8.8.1978, confirming his appointment on account of his having passed the stenography test. Consequently, his post was conferred a "quasi-permanent" status only in the final appointment order issued in December 1979, with effect from 20.4.1978.Thus his appointment order in December 1979, with effect from 20.4.1978 was what confirmed his appointment in the ICAR. It is nobody's case that the respondent had, in fact, passed the stenography test before 19.4.1978, in earlier attempts. Since the

W.P.(C) 2952/2014 Page 6 respondent admits that he only cleared the test on 19.4.1978, had he been aggrieved that his appointment order conferring "quasi- permanent" status only with effect from 20.4.1978, and not with retrospective effect from 31.8.1971, he ought to have raised the challenge long before 2012. Having thus acquiesced to his appointment being confirmed with effect from 20.4.1978, he is now estopped from raising any argument that his regular service commenced at an earlier date, whether for the purposes of the ACP or otherwise.

10. Crucially, this Court notes that the respondent does not claim his first financial upgradation in the original application before the CAT. If this is because his first upgradation has not been granted to him, then necessarily, he ought to have claimed the first upgradation as well, in his OA, along with the second. That his OA only seeks the grant of the second financial upgradation compels the necessary inference that his first financial upgradation had already been granted to him, by the ICAR. This can only mean that the respondent was aware, at the time of the grant of his first ACP, that the ICAR had computed his period of regular service from 20.4.1978, and not from 31.8.1971. This Court is thus fortified in its conclusion that the respondent has acquiesced to the computation of his regular service from 1978, and is consequently estopped from challenging it at this stage.

11. In any event, the CAT order is erroneous in its premise that the respondent's service between 1971 and 1978 must be included within

W.P.(C) 2952/2014 Page 7 the period of regular service. Since Clause 5, which contains the rule as to passing the stenography test, has not been placed on record in a cogent form, this Court relies on the terms of the appointment order of Ms. Asha, with whom the respondent himself seeks parity, on the ground that their circumstances are identical. Her appointment order clearly states that she was required to pass the stenography test, failing which she would be liable to be discharged from service. The petitioner too avers that non-compliance with this requirement would make the respondent liable to be discharged from service, in accordance with Clause 5 of his order of 1971. Therefore, admittedly, this condition must also apply to the respondent. Having not passed this test, the appointment of the respondent as of the 31.8.1971 was contrary to the Rules; service from this period must necessarily be assumed to be ad-hoc.

12. This Court also notes the appointment order (no. 21-91/77- EEIV) issued to Ms.Jeevan Asha, dated 11.1.1978 placed on record by the petitioners. Prior to the terms of the appointment order, there is another letter which specifically reads that appointment is being accorded "on compassionate grounds without reference to the employment exchange and in relaxation of upper age limit subject to her passing the shorthand test". The respondent, on the other hand, did not benefit from any such concessionary arrangement from the ICAR. Therefore, while the terms on the initial appointment letters may be similar, the circumstances in which the respondent and Ms. Asha were

W.P.(C) 2952/2014 Page 8 appointed cannot be compared, and thus their periods of service cannot be computed in the same manner.

13. For the above reasons, we are of the opinion that the petition has to be allowed. Accordingly, the impugned order of the CAT is set aside.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) SEPTEMBER 04, 2014

W.P.(C) 2952/2014 Page 9