Bushan Lal Koul (Now Dead) Th. ... vs Chairman Airport Authority And ...
2023 Latest Caselaw 1009 j&K

                                                                   S. No.
             HIGH COURT OF JAMMU AND KASHMIR & LADAKH
                           AT JAMMU


                                              SWP No. 393/2003 (O&M)

                                              Reserved on:   04.05.2023
                                              Pronounced on: 18.05.2023

Bushan Lal Koul (now dead) th. Legal                            ...Petitioner(s)
Representatives


                  Through :- Mr. Yuvraj Bushan, Adv.

                 v/s

Chairman Airport Authority and ors.                         .....Respondent (s)

                  Through :- Mr. Inderjeet Gupta, Adv.


Coram:
     HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE



                                  JUDGMENT

1. By virtue of this judgment, the present petition pending for about 20

years shall be put to quietus.

2. Petitioner has invoked writ jurisdiction of this Court, under Article 226

of the Constitution of India, read with Section 103 of the Constitution of

erstwhile State of J&K, for issuance of appropriate writs for fixation of his

seniority, proper placement in the final seniority list and consequential release of

his retrospective promotional benefits.

3. Be it noted that petitioner passed away during the pendency of writ petition

and legal representatives were brought on record.

4. The case set up by the petitioner is that he came to be appointed as

Junior Clerk against a clear vacancy on 08.11.1974 and in pursuance thereof, he

joined at Srinagar on 11.08.1974 (should have been 08.11.1974). It is further case

of the petitioner that since his basic appointment did not make it clear whether

his appointment was on regular or ad hoc basis, he made a representation to the

Director General of Civil Aviation (DGCA, for short) for clarification so that he

could be regularized w.e.f. 08.11.1974, i.e. the date he joined at Aeronautical

Communication Station (ACS), Srinagar. Request of the petitioner was

considered and vide order No. 12020/21/76-ES dated 09.07.1976 passed by

DGCA, concerned officer made entry at page 16 of his service book.

5. Allegation of the petitioner is that subsequently his service record was

illegally changed without any reason and without any intimation to him, whereby

his service was shown regularized w.e.f. 12.05.1980. Since he was shown junior

to the officials who came to be appointed after him in the year 1974, in the

tentative seniority list, he filed objections, however, same were not considered. It

is also alleged that various representations made by the petitioner from time to

time were not considered by the respondents and instead on account of said

representations respondents issued a charge sheet against him on 29.03.1995

alleging that his conduct viz-a-viz his superiors was not satisfactory. He

submitted a detailed reply but a penalty of withholding next increment for two

years without cumulative effect was imposed upon him and petitioner was also

warned to desist from writing such complaints against his seniors and

associations in future. However, instead of withholding increment from 1995 i.e.

the year of issuing of the aforesaid order, his increments from 01.11.1993 to

03.06.1996 were withheld. He again filed a representation and vide order dated

11.11.1998, the increments were restored by the respondents in his favour. It is

also alleged by the petitioner that he came to know that some important

documents viz-a-viz his career were missing from his service book, maintained

by the respondents, but he was denied access to his service book for 12 years,

which created apprehension that respondents may enter some red entries in his

service record without any intimation to him. The petitioner suspects that some

documents from his service book have been manipulated and some important

documents have been removed.

6. Finally, grievance of the petitioner is that respondents remained

unmoved by not deciding his case of seniority and consequential benefits and

ultimately by virtue of impugned order No. AAI/JU/BLK/2003/5691 dated

05.02.2003 his claim for regularization of his appointment w.e.f. 08.11.1974 has

been rejected by showing that he stands regularized w.e.f. 12.05.1980.

7. Petitioner has questioned the impugned order primarily on the ground

that subsequent change of entry in his service book is manipulated and impugned

order is an outcome of malafile and extraneous consideration on the part of the

respondents.

8. Countervailing the stand taken by the petitioner, the respondents are

affront with the contention that educational qualification of the petitioner was

Matric. He was initially appointed as Chowkidar in the Office of Officer-in-

charge, ACS Srinagar on temporary basis w.e.f. 01.07.1971 in the pay scale of

Rs.70-1-80-EB-1-85. He was re-designated as Aerodrome Attendant w.e.f.

01.07.1972 in the same pay scale. Later, he was re-mustered as Peon w.e.f.

01.01.1974 in the same pay scale. Pursuant to Government of India's Rule, he

was promoted as Junior Clerk w.e.f. 08.11.1974 purely on ad hoc basis in the

Office of Officer In-Charge, ACS, Srinagar in the pay scale of Rs. 260-400.

Since he was promoted on ad hoc basis as Junior Clerk, his name was not

included in seniority list of Junior Clerk cadre, because under rules, names of

those employees are shown in the seniority list who are appointed on regular

basis only. Petitioner continued to work as Junior Clerk on ad hoc basis till

11.05.1980 and was regularized as Junior Clerk w.e.f. 12.05.1980, as evident

from seniority list of Junior Clerks circulated vide RD's Delhi Region Letter No.

A-23012/11/83-EH(RDD)/673-705 dated 26.02.1986 placing the petitioner at

Serial No. 110 w.e.f. 12.05.1980. It is also evident from letter No. SR/E-1(1)/82

dated 09.07.1985 along with proforma of officer Incharge, ACS, Srinagar that

petitioner was appointed as Junior Clerk on regular basis w.e.f. 12.05.1980 and

not from 08.11.1974. On petitioner's request, G.S. Kamgar Union also requested

for regularization of his services from 08.11.1974 vide letter No.

NAAKU/Jammu/93 dated 04.01.1993. It is case of the respondents that entry

reflected at page No.16 of service book of the petitioner, besides being

manipulated, is bogus.

9. Refuting the allegation of change of entry in the service record of

petitioner, respondents would submit that during the period from 1974 to 1980

petitioner being the only Clerk posted at ACS, Srinagar, was custodian of the

office record including service books of all the officers and staff including his

own service book. It is alleged that petitioner started misleading by making

forged entry in his service book. It is also submission of the respondents that

representations made by him from time to time were duly replied but he never

objected to the seniority list of Junior Officers Assistants.

10. It is further stand of the respondents that memorandum dated

05.07.2004 was served upon the petitioner to explain as to why above entry was

made in his service book and petitioner by virtue of his reply dated 14.07.2004

stated that he was working as single hand/Junior Clerk dealing in all type of

administrative work under the Supervision/guidance of then office-incharge and

maintaining all service records of the station and therefore entries as ordered by

then OIC, ACS, Srinagar were made by him in his service book which were also

signed by him. Thereafter, vide Memo dated 28.09.2004 petitioner was directed

to intimate the name of then OIC, ACS, Srinagar, on whose order, he

incorporated the entries in his service book and the date of instruction of then

OIC, ACS, Srinagar, so that said OIC ACS could be issued a show cause notice.

Petitioner, in his reply dated 21.10.2004, did not furnish the name of then OIC,

ACS Srinagar. However, from the perusal of the record lying with the

respondents, it came to light that Mr. A. K. Tikko, then Officer-Incharge

Aeronautical Communication Office, Srinagar had ordered to make the entry in

the service book of the petitioner. Therefore, vide letter dated 29.03.2005, said

A.K. Tikko was directed to explain whether he had ordered to make the entry in

the service book and signed the same, to which, Mr. Tikko vide his letter dated

22.02.2006 submitted that entries in question made in the service book of the

petitioner, during his period of posting as ACS, Srinagar appears to be

manipulated by the petitioner.

11. Respondents, having denied to have issued the charge sheet to harass

the petitioner, have submitted that since the conduct of the petitioner was far

from being satisfactory, therefore, he was warned to desist from using

threatening language in office in future. In view of controller of Aerodrome

Srinagar Airport memo No. SR/NAA/Conf-2 dated 11.06.1990, the petitioner

was issued charge sheet dated 26.12.1994 on the following points:

a. "Tampered the L.P.C. & added entry about recovery of his LTC advance Rs. 6100/-.

b. Leave salary bill from 08.04.1991 to 11.08.1991 to claiming full pay and allowances knowing well that only half pay was admissible to him.

c. Tampered his LPC in the Medical claim after signing in the Medical Claim.

d. Claiming of Excess Medical Claim for out door treatment during the year 92-93 and has failed to make entry of bill of Rs. 836/- in the Register indicating the amount already reimbursed to him."

12. Respondents have denied the allegation that petitioner was denied to

inspect his service book on the premise that since petitioner was the only clerk

posted at the Station and was responsible for keeping/maintaining office record,

update the same in respect of all the officers/staff including his own service

book, therefore, nobody could stop him from inspecting his service book. It is

alleged that most of the entries in the service book of the petitioner were made by

him and it was the petitioner who forged the entries. Respondents have prayed

for dismissal of the writ petition.

13. The petitioner, in his rejoinder affidavit, has deposed that final seniority

list, mentioned in the objections, was never circulated and he filed his objections

to the tentative seniority list circulated by the respondents. It is alleged that entry

appearing at page 24 of the service book is manipulated. Respondents, in order to

negate his claim, chose to issue Memorandum on 05.07.2004, after the writ

petition was admitted to hearing in March 2003, which, according to him, is

nothing but an afterthought. It is also submission of the petitioner that even

though there was no impediment on the part of the respondents for initiating a

departmental enquiry, if there was any fraudulent entry, as alleged by them, yet

they have failed to do so, therefore, malafides on the part of the respondents are

reflected on this count. According to the petitioner, respondents, at this stage, are

estopped from making allegations against him as till date respondents, for the last

three decades, have failed to initiate any enquiry against him.

14. Heard arguments and perused the file.

15. Learned counsels for the parties have reiterated their respective

pleadings in arguments.

16. The only grievance projected by the petitioner is that his service

record has been illegally changed and manipulated by the respondents, whereby

he has been shown junior to the officials, who came to be appointed after him

and his service is shown regularized w.e.f. 12.05.1980. Per contra, it is categoric

case of the respondents that during the period w.e.f. 1974 to 1980, petitioner,

being the only clerk posted at Srinagar, was custodian of the office record

including service books of all the officers and staff members as also his own

service book. It has been alleged that petitioner, by taking advantage of his

position started misleading by making forged entry in his service book and he

never objected to the final seniority list of Junior Officers Assistants. It is

pertinent to mention that in reply to Memorandum dated 05.07.2004 issued to the

petitioner to explain as to why above entry was made in his service book, he has

admitted that he was working as single hand Junior Clerk dealing in all types of

administrative work and maintaining of service records of the Station, though

under the supervision/guidance of then office Incharge. Therefore, it is manifest

that it was the petitioner himself who made entries in his service book.

According to the petitioner, he was ordered to do so by then OIC, ACS Srinagar,

however, when by virtue of subsequent memo dated 28.09.2004, he was directed

to intimate the name of OIC, ACS Srinagar, on whose orders he incorporated

entries in his service book, he refused to furnish the details and the name of the

said officer in his reply dated 21.10.2004. Subsequently, on perusal of the office

record, respondents came to know that Mr. A. K. Tikko was then officer Incharge

ACS, Srinagar, therefore, vide letter dated 29.03.2005, said A.K. Tikko was

directed to explain whether he had ordered the petitioner to make entry in his

service book and countersigned the same. Mr. A. K. Tikko, vide his reply dated

22.02.2006, clearly stated that entries in question made in the service book of

petitioner during his period of posting as ACS Srinagar appears to be

manipulated by the petitioner. Here it is pertinent to mention that Mr. A. K.

Tikko, by virtue of said communication had also communicated that Sh. B. L.

Koul (petitioner) is not a straight-forward and honest person. He is a great

manipulator, capable of manipulating such entries in his service book. The

petitioner, in his rejoinder, has objected to the issuance of memorandum dated

05.07.2004 on the ground that same was issued only after the writ petition was

admitted to hearing in March, 2003, therefore, it was an afterthought to negate

his genuine claim.

17. Though memorandum dated 05.07.2004, by virtue of which, petitioner

was directed to explain his position, with respect to entry made by him in his

service book, was issued after the present petition was admitted to hearing,

however, fact remains that this was already a clear stand of the respondents in

their objections and prior to admission of the case, that entries made in the

service book were manipulated by the petitioner himself during the period he was

custodian of entire office record including service books of all the officers and

staff members as also his own service book and it is worthwhile to underline that

petitioner by replying the memorandum dated 05.07.2004 has admitted that he

made entries in his service book reflecting his date of regularization w.e.f.

08.11.1974, though stated to be on the directions of then OIC, ACS Srinagar Mr.

A. K. Tikko. From the stand taken by the respondents in the objections that said

entry was manipulated by the petitioner during the period he was sole incharge of

the office record as also service books and reply submitted by the petitioner to

memorandum dated 05.07.2004, it is an admitted position of fact on the record

that entry dated 09.03.1976 made at page 16 of service book of the petitioner has

been made by the petitioner himself because he was sole custodian of the service

record of the employees including his own record. Mr. A. K. Tikko the then OIC,

ACS Srinagar has clearly stated that said entries have been manipulated by the

petitioner himself and that petitioner is not a honest person and is capable enough

to manipulate such entries in his service book.

18. It is also case of the petitioner that after he made a representation to

DGCA for clarification so that he could be regularized w.e.f. 08.11.1974, his

request was acceded to and concerned officer made entry at page 16 of his

service book, vide order No. 12012/2176-ES dated 09.07.1976 passed by the

DGCA. However, petitioner has failed to produce said order of regularization on

the record. Since petitioner asserts and claims to be regularized w.e.f. 08.11.1974

by virtue of this order, therefore, he was obliged to place on record the said order

to show that he was regularized w.e.f. 08.11.1974 because it is trite that one who

asserts has to prove. On the other hand, respondents have placed on record, the

seniority list of Junior Clerks circulated by RD's Delhi Region Letter No. A-

23012/11/83-EH(RDD)/673-705 dated 26.02.1986 placing the petitioner at Serial

No. 110 w.e.f. 12.05.1980. It is further evident from subsequent Letter No. SR/E-

1(1)/82 dated 09.07.1985 that petitioner was appointed as Junior Clerk on regular

basis w.e.f. 12.05.1980 and not from 08.11.1974. The final seniority list dated

26.02.1986 and the subsequent communication dated 09.07.1985 placed on

record by the respondents would transpire that petitioner was regularized from

12.05.1980 and not from 08.11.1974.

19. Be that as it may, the question which begs consideration of this Court

is whether an employee, who is appointed purely on ad hoc basis, is otherwise

entitled in law to have his ad hoc service counted for the purpose of fixation of

seniority. The answer is emphatic No, for the following settled position of law.

20. It is trite that appointments made contrary to the rules are merely

fortuitous and do not confer benefit of seniority on the appointees over and above

the regular/substantive appointees to the service. [See AIR 1998 SC 3136,

(1996) 11 SCC 361 and 1995 Supp(2) SCC 407].

21. An appointment in substantive capacity is one which is not

fortuitous or ad hoc and is made in compliance with the extant rules and

regulations as held by Hon'ble Supreme Court in Baleshwar Dass and others

v. State of U.P. and ors. reported as AIR 1981 SC 41 and O.P. Singla and Anr.

V. UOI and ors. reported as AIR 1984 SC 1595 reiterated in Nand Kumar

Manjhi and another v. State of Bihar and ors. reported as AIR 2019 SC 2204.

22. Similar observation has been made by Hon'ble Supreme Court in

State of Haryana and ors. v. Vijay Singh and others reported as AIR 2012 SC

2901 in the following words:

"24. None of the aforesaid judgments can be read as laying down a proposition of law that a person who is appointed on purely ad hoc basis for a fixed period by an authority other than the one who is

competent to make regular appointment to the service and such appointment is not made by the specified recruiting agency is entitled to have his ad hoc service counted for the purpose of fixation of seniority. Therefore, the respondents, who were appointed as Masters in different subjects, Physical Training Instructor and Hindi Teacher on purely ad hoc basis without following the procedure prescribed under the 1955 Rules are not entitled to have their seniority fixed on the basis of total length of service. As a corollary to this, we hold that the direction given by the High Court for refixation of the respondents' seniority by counting the ad hoc service cannot be approved."

23. Identical view has been expressed by Hon'ble Supreme Court in State

of Utrakhand and anr. v. Archana Shukla & ors. reported as AIR 2011 SC

3162.

24. It is manifest from the afore-quoted pronouncements that an ad hoc

appointment is nothing but fortuitous and it does not confer benefit of seniority

for the period the employee was on ad hoc employment and an employee

appointed on ad hoc basis is not entitled, in law, to have his ad hoc service

counted for the purpose of fixation of seniority.

25. For what has been observed and discussed above, what comes to the

fore is that it is the petitioner, who admittedly made entry in his service book.

Petitioner has failed to produce any order of regularization of his service from

08.11.1974 and as per the seniority list on record, the petitioner stands

regularized w.e.f. 12.05.1980. Seniority cannot be claimed merely on the basis of

some entries reflected in the service book. Petitioner is not only obliged to show

that order of regularization, if any, was passed by an authority competent to make

regular appointment to the service in compliance with the rules and regulations,

but also to establish that he was entitled, in law, to have benefit of seniority for

the period he was serving on ad hoc basis. Petitioner, in the present case, has

failed on both the counts. Therefore, petitioner is not found entitled, in law, to

have his ad hoc service counted for the purpose of fixation of his seniority.

26. Viewed thus, present petition, being devoid of any merit, is dismissed.

27. Before parting, however, I would like to express my displeasure over the

manner respondents, particularly, DGCA have dealt with the controversy. Since

there were allegations and counter allegations regarding manipulation of service

record of the petitioner, respondents were obliged to initiate a detailed enquiry

into the case in order to ascertain the truth or falsehood. Respondents could be

directed to make an indepth probe to fix the responsibility, however, since the

controversy dates back to the year 1976, the present petition came to be filed in

this Court in 2003 i.e. 20 years back and particularly since the petitioner has

already passed away, it may not be proper to do so, at this length of time.

(RAJESH SEKHRI) JUDGE

JAMMU 18.05.2023 Paramjeet Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No