Kerala High Court

The Administrator, Union Territory ... vs Subaidabi C. P on 12 February, 2025

Author: Amit Rawal

Bench: Amit Rawal

OP (CAT) NO. 25 OF 2022 and conctd. Case        1

                                                               2025:KER:13919
                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                     THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                       &

                   THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR

          WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946

                            OP (CAT) NO. 25 OF 2022

         AGAINST THE ORDER DATED 10.11.2021 IN OA NO.225 OF 2020 OF CENTRAL

ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH


PETITIONERS/RESPONDENTS IN O.A:

     1        THE ADMINISTRATOR
              UNION TERRITORY OF LAKSHADWEEP, KAVARATTI, PIN - 682555

     2        THE DIRECTOR OF EDUCATION
              UNION TERRITORY OF LAKSHADWEEP, KAVARATTI, PIN - 682555

     3        THE CHIEF EXECUTIVE OFFICER
              LAKSHADWEEP DISTRICT PANCHAYATH (EDUCATION), PIN - 682555


              BY ADVS.
              SHRI.SAJITH KUMAR V., SC, LAKSHADWEEP ADMINISTRATION
              K.S.PRENJITH KUMAR




RESPONDENT/APPLICANT IN O.A:
            MOHAMMED IQUBAL C.
            AGED 45 YEARS
            PRINCIPAL (AD-HOC), GOVERNMENT SENIOR SECONDARY SCHOOL FOR
            SCIENCE, KAVARATTI - 682 555 , PERMANENT ADDRESS - CHERIYAPPADA
            HOUSE, AGATI ISLAND, UNION TERRITORY OF LAKSHADWEEP, PIN -
            682553


      THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12.02.2025, ALONG WITH OP

(CAT).18/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (CAT) NO. 25 OF 2022 and conctd. Case        2

                                                               2025:KER:13919
                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                     THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                       &

                   THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR

          WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946

                            OP (CAT) NO. 18 OF 2022

         AGAINST THE ORDER DATED 10.11.2021 IN OA NO.224 OF 2020 OF CENTRAL

ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH


PETITIONERS/RESPONDENTS IN THE O.A:

     1        THE ADMINISTRATOR, UNION TERRITORY LAKSHADWEEP
              UNION TERRITORY OF LAKSHADWEEP, KAVARATTI, PIN - 682555

     2        THE DIRECTOR OF EDUCATION
              UNION TERRITORY OF LAKSHADWEEP, KAVARATTI, PIN - 682555

     3        THE CHIEF EXECUTIVE OFFICER
              LAKSHADWEEP DISTRICT PANCHAYATH (EDUCATION), KAVARATTTI, PIN -
              682555


              BY ADVS.
              SHRI.SAJITH KUMAR V., SC, LAKSHADWEEP ADMINISTRATION
              R.V. Sreejith




RESPONDENT/APPLICANT IN OA:

              SUBAIDABI C. P.
              AGED 49 YEARS
              PRINCIPAL (AD-HOC), DISTRICT INSTITUTE OF EDUCATION AND
              TRAINING, KAVARATTI - 682 555, RESIDENT OF GOVERNMENT QUARTER
              NO. D22, NEAR IRBN CAMP, KAVARATTI, PIN - 682555



      THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12.02.2025, ALONG WITH OP

(CAT).25/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (CAT) NO. 25 OF 2022 and conctd. Case   3

                                                      2025:KER:13919
                               JUDGMENT

[OP (CAT) Nos.25/2022, 18/2022]

Amit Rawal, J.

This order shall dispose of two OP(CAT) Nos.18 of 2022 and 25

of 2022 preferred against the common order dated 10.11.2022 in

OA No.224 and 225 of 2020 filed by the Subaidabi C.P and

Mohammed Iqubal C respectively.

2. Subaidabi C.P was working as a Principal of District Institute

of Education and Training (DIET) at Kavaratti, with the additional

charge of District Education Officer, U.T of Lakshadweep on ad-hoc

basis with effect from 31.3.2011 whereas Mohammed Iqubal C was

working as Principal of the Government Senior Secondary School for

Science at Kavaratti, U.T of Lakshadweep on adhoc basis with effect

from 1.4.2011. Both the aforementioned appointments were on the

basis of draft recruitment Rules. The aforementioned Rules was sent

for approval in February, 2011. Vide Annexure.A1 dated 1.6.2020,

both the applicants were reverted to the original posts on the

premise that the competent authority did not approve the proposal

of adhoc post of Principal and additional charge of District Education

Officer. In other words, they were reverted back to the post of Post

Graduate Teacher, English and Physics respectively. Vide Annexure

A2 dated 3.6.2020 despite having been reverted from the concerned

2025:KER:13919 posts holding on adhoc basis, they were permitted to draw the pay

and allowances of the teachers but continue to hold the charges

which they were holding previously considering the COVID situation.

The aforementioned action gave a cause of action for them to file

original application before the Tribunal on the premise that it is

settled law that the persons who have been holding the charges on

adhoc basis for almost more than 11 years on the basis of the draft

Rules cannot be reverted until and unless the final Rules are

approved.

3. The learned Tribunal on appreciation of the evidence

allowed the OAs in the following manner:

8. We have carefully perused the pleadings and documents produced in this case. There had occurred a proposal for upgradation of the posts of Head Masters in Agatti, Amini, Kalpeni, Kiltan and Chetlat islands as Principals and the administration has proposed a new Recruitment Rule for the purpose of filling up of 5 posts of Principals newly created in the scale of pay of Rs. 15,600-39,100/- plus Grade Pay of Rs. 7,600/-. If we go through Annexure A4 it can be seen that the applicant was promoted as Principal at GSSS, Amini on the basis of a draft Recruitment Rule. This was done with the expectation that the draft Recruitment Rules would be approved by the Government. Even though it was mentioned as ad-hoc appointment, it appears that the administration has intended to promote the applicant as Principal on the basis of a Recruitment Rule. It is only because of that the respondents had put a condition that the applicant will be reverted from the post of Principal only if the vacancy is filled up on a regular basis or necessity ceases whichever is earlier. There has not occurred any regular selection thereafter. It appears that the draft Recruitment Rules forwarded by the respondents was not approved by the MHRD and long 11 years have passed and

2025:KER:13919 the applicant was permitted to function as Principal without any break. Now the respondents had come up with an explanation that as per DoP&T guidelines produced as Annexure R1(c) the ad-hoc appointment has to be terminated within one year or it has to be reviewed before the period of one year ends. It is clear from the reply statement that respondents have failed to properly review the appointment for several years.

The counsel for the applicant has produced a copy of the judgment of the Hon'ble Supreme Court in Abraham Jacob & Ors. v. Union of India, dated 11.2.1998 (Civil Appeal Nos. 12388/1996 and 12387/1996). The counsel mainly argues the proposition that the appointments made on the basis of draft Recruitment Rules can be considered as an administrative decision of the Government prior to the coming up of the Recruitment Rules and hence, there is no illegality for the promotion given. So according to the applicant the respondents cannot turm around and say that the draft Recruitment Rule was not approved by the Government of India after a lapse of 11 years.

10. On a reading of the above decision cited by the applicant it can be seen that the said case arose out of the promotion given to the post of Assistant Engineer after formulation of a set of draft Recruitment Rules for promotion. The promotion was also effected in accordance with the provisions contained in the draft Recruitment Rules. The promotions were effected before the statutory rule came into existence by virtue of an administrative decision by the Government. The Hon'ble Supreme Court held as under:

"it is too well settled that the service conditions of employees, in the absence of statutory rule could be governed by administrative Instructions. There was, therefore, no illegality in giving promotion to the Junior Engineers in the past of Assistant Engineer because of the aforesaid administrative decision of the Government"

In this case also the draft Recruitment Rules were sent for the approval in the year 2011 with an Intention to notify it and the administrative authorities has taken a decision to promote the applicant on the basis of the draft Recruitment Rules. So this is a case where an administrative decision is

2025:KER:13919 taken for promoting the applicant without having a statutory Recruitment Rule notified under Article 309 of the Constitution of India, Going by the above decision of the Hon'ble Supreme Court in Abraham Jacob's case (supra) It can be seen that the executive authority has power to issue orders on appointment in the absence of statutory Recruitment Rules and applicant was promoted as per Annexure A4. It is clear from the pleadings that the applicant was appointed on the basis of a draft Recruitment Rules which was sent for approval and notification. This was frustrated since the Ministry has rejected the draft after a long gap. The applicant herein was appointed as Principal in the newly constituted post of Principal. Now the respondents cannot tum around and contend that they have prepared a fresh draft Recruitment Rule and it is pending before the MHRD for approval. So even now there is no statutory Recruitment Rule governing the case of promotion to the post of Principal. This post was created in the year 2007 and even now no Recruitment Rule is in existence and it appears that the applicant who was appointed on an administrative decision of the Union Territory of Lakshadweep is going to be reverted unceremoniously saying that his ad-hoc appointment was not extended periodically. The conditions mentioned in Annexure A4 for reversion is also not satisfied. The alleged failure to obtain the extension of ad-hoc appointment is a failure occurred on the part of the respondents.

11. In view of the above circumstances, we hold that the contentions of the respondents cannot stand before this Tribunal regarding the decision to revert the applicants to the post of PGT. It is arbitrary and violative of the provisions of Article 14 of the Constitution of India. Hence, we set aside Annexures Al and A2 of both the OAs and direct the respondents to consider the case of the applicants for regularization treating them as they were appointed on administrative decision taken by the Union Territory of Lakshadweep. The respondents are directed to pass appropriate orders in the light of the above discussion within a period of six months from the date of receipt of a copy of this order.

2025:KER:13919

4. Learned counsel appearing on behalf of the Lakshadweep

Administration by laying challenge to the order under challenge

raised the following submissions:

5. The learned Tribunal failed to see the decision of the court

where the adhoc promotions cannot be permitted to be regularized.

The deputation can continue for a specific term but cannot claim the

regularization of that period. It was a stop gap arrangement. There

was no administrative sanction for the grant of Rs.7600/- as grade

pay on some adhoc appointments based on the draft Rules as the

competent authority did not grant the approval. It was further

contended that the Tribunal while setting aside the order could not

have issued a direction to the respondent before the Central

Administrative Tribunal and the petitioner herein to consider the

case of the applicant for regularization by treating them to have

been appointed on administrative decision taken by the Union

Territory of Lakshadweep and pass an order within a period of six

months. In support of the contention relied upon the order in

OP(CAT) No.18 of 2022 (The Administrator, Union Territory of

Lakshadweep, Kavaratti v. Subaidabi C.P).

6. On the other hand learned counsel for the applicant

supported the findings of the Tribunal.

7. We have heard the learned counsel for the petitioner and

2025:KER:13919 appraised the paperbook and of the view that as far as the grievance

with regard to the continuity, the reversion from the post of the

Principal was on the basis of the draft Rules. It is settled law that

the appointments made based on the draft Rules can be considered

as an Administrative decision of the Government prior to coming into

force of the Recruitment Rules. The view of us is drawn from the

ratio of decidendi culled out in the Judgment of the Supreme Court

in Abraham Jacob & Ors. v. Union of India dated 11.2.1998 (Civil

Appeal Nos. 12388/1996 and 12387/1996). It is a matter of record

that the draft Rules in the present case was sent for approval in

2011 with an intention to modify but the Administrative Authority

had taken decision to promote the applicants on the basis of the

recruitment Rules. Thus it was an administrative decision as per the

provisions of Article 309 of the Constitution of India. Therefore, the

reversion could not have been ordered until and unless the Rules are

to that effect. As far as the direction for regularization is

concerned, the same is impermissible for the reason that the

recruitment Rules are still pending. Though there have been recent

judgments of the Supreme Court in Jaggo v. Union of India & Ors.

(2024 INSC 1034) and Shripal & Another v. Nagar Nigam, Ghaziabad

(2025 INSC 144) the directions have been issued to the authorities

to consider the case of the regularization against the sanctioned post

2025:KER:13919 or on vacancy of the sanctioned post considering the long and

settled service and that cause of action would arise only when the

recruitment Rules are finalised and sanctioned. In this view of the

matter, we allow the OA to the limited extent by expunging the

direction for regularization. The rest of the findings are upheld.

OP(CAT)s are allowed in part.

Sd/-

AMIT RAWAL JUDGE

Sd/-

sab                                          K. V. JAYAKUMAR
                                                 JUDGE


                                                           2025:KER:13919
                        APPENDIX OF OP (CAT) 18/2022

PETITIONER ANNEXURES

Annexure A1             A TRUE COPY OF THE ORDER BEARING F.NO. 18/2/2011-

EDN/ESTT/309 DATED 01.06.2020 ISSUED BY THE 2ND RESPONDENT

Annexure A2 A TRUE COPY OF THE ORDER BEARING F.NO. 18/2/201- EDN/ESTT/310 DATED 03.06.2020 ISSUED BY THE 2ND RESPONDENT

Annexure A3 A TRUE COPY OF THE 1ST RESPONDENT'S ADMINISTRATOR BY LETTER BEARING NO. 18/30/2006-EDN/ESTT DATED 17.02.2011

Annexure A4 A TRUE COPY OF THE ORDER BEARING F.NO. 18/2/2011- EDN/ESTT(2)/955 DATED 30.03.2011 ISSUED BY THE 2ND RESPONDENT

Annexure A5 A TRUE COPY OF THE ORDERS BEARING F.NO. 60/02/2005- EDN/EDN(AW) DATED 21.01.2016 ,ISSUED BY THE SECRETARY EDUCATION

Annexure A6 A TRUE COPY OF THE REPRESENTATION DATED 10.02.2020 ADDRESSED TO THE 1ST RESPONDENT ADMINISTRATOR

Annexure A7 A TRUE COPY OF THE REPRESENTATION DATED 10.03.2020 ADDRESSED TO THE 1ST RESPONDENT ALONG WITH ITS TRANSCRIBED COPY

Annexure A8 A TRUE COPY OF THE COMMUNICATION BEARING F.NO.

18/2/2011-EDN/ESTT/1570 DATED 23.12.2019 ISSUED BY THE 2ND RESPONDENT

Annexure R1(a) - A TRUE COPY OF THE RELEVANT NOTE FILE

Annexure R1(b) A TRUE COPY OF NEW PROPOSAL AND COMMUNICATION TO THE MINISTRY OF HUMAN RESOURCE DEVELOPMENT.

Annexure R1(c) A TRUE COPY OF DOPT. INSTRUCTIONS CONTAINED IN OM NO. 28036/1/2012-ESTT(D) DATED 03.04.2013

Annexure R1(d) A TRUE COPY OF THE RELEVANT PORTIONS OF THE NOTE FILE BY WHICH THE AD-HOC PROMOTION OF THE APPLICANT WAS APPROVED

Exhibit P1 A TRUE COPY OF THE ORIGINAL APPLICATION NO.

224/2020 FILED BY THE PETITIONER BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH

Exhibit P2 A TRUE COPY OF THE COUNSEL STATEMENT DATED 24.06.2020 FILED BY THE RESPONDENT IN OA NO.

2025:KER:13919 Exhibit P3 A TRUE COPY OF THE REPLY STATEMENT DATED 13.10.2020 FILED BY THE RESPONDENT IN OA NO. 224/2020

Exhibit P4 A TRUE COPY OF THE ORDER DATED 10.11.2021 IN O.A. NO. 224/2020 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

Exhibit P5 A TRUE COPY OF THE JUDGMENT DATED 11.01.2021 IN WP (C) 22481/2016

Exhibit P6 A TRUE COPY OF THE RELEVANT PAGES OF THE RECRUITMENT RULES FOR THE POST OF PRINCIPAL AT JAWAHARLAL NEHRU JUNIOR COLLEGE, KAVARATTI NOTIFIED ON 12.07.1976

2025:KER:13919 APPENDIX OF OP (CAT) 25/2022 PETITIONER ANNEXURES

Annexure A1 A TRUE COPY OF THE ORDER BEARING F.NO. 18/2/2011- EDN/ESTT/309 DATED 01.06.2020 ISSUED BY THE 2ND RESPONDENT