Mrs. Ashalaxmi Mohanty vs Central Administrative Tribunal
2021 Latest Caselaw 12456 Ori

             ORISSA HIGH COURT : C U T T A C K

                      W.P.(C) No.14342 of 2005

                  An application under Articles 226 & 227 of
                       the Constitution of India, 1950

Mrs. Ashalaxmi Mohanty                              : Petitioner

                                -Versus-

Central Administrative Tribunal                     : Opposite Parties
& Ors.


For Petitioner                                : M/s. B.Ch. Mohanty,
                                                     R.K. Nayak,
                                                     A.K. Kanungo,
                                                     G.N. Das

For Opposite Party Nos.2 to 5                 : Ms. S. Mohanty,
                                                    Sr. Panel Counsel
                                                    (Central Government)

                                JUDGMENT

CORAM :

JUSTICE C.R. DASH JUSTICE BISWANATH RATH

Date of hearing: 23.11.2021 :: Date of Judgment : 04.12.2021

1. Even though this writ petition involves a challenge to the

order of the Central Administrative Tribunal, Cuttack Bench, Cuttack

dated 11.04.2005 passed in O.A. No.549 and 573 to 575 of 2004,

however, the challenge is only confined to at the instance of Smt. Asha

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Laxmi Mohanty who appears to be one of the applicants before the

Tribunal.

2. Short background involved in the case is that the Military

Tele-Exchange, Gopalpur commissioned under the authority of Head

Quarters, Central Command, Lucknow for having no Combatant Tele

Operators available in 1988, the Station Commander of Gopalpur

Cantonment approached the District Employment Exchange and the Zilla

Sainik Board, Ganjam to sponsor the names of the suitable candidates for

selection of five Civilian Switch Board Operators, hereinafter in short be

reflected as 'CSBO' for the tele-exchange, Gopalpur. A selection board

was also constituted for the purpose on 18.03.1988. The selection board

conducted written as well as viva-voce and practical tests of the

candidates being sponsored by the District Employment Exchange and

Zilla Sainik Board, Ganjam. On 19.07.1988 the Opposite Party No.5

intimated the Petitioner that she has been selected by the Board of

Officers and accordingly instructed to report to the Station Head Quarters

with requisite original documents. It appears, pursuant to the above

direction the Petitioner submitted all requisite documents in original

which was claimed to be duly verified and received by the Opposite Party

No.5. It is pleaded that after the above development the Opposite Party

No.5 issued appointment order to the Petitioner on 31.08.1988 appointing

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her as a Civilian Switch Board Operator for Military tele-exchange,

Gopalpur, Golabandha w.e.f. 14.09.1988. It is claimed that the Petitioner

served for a period of 327 days within a span of one year and it is,

thereafter, her services was terminated along with other four CSBOs

w.e.f.23.09.1989. Being aggrieved with the order of termination dated

23.09.1989, the Petitioner along with some other persons also working as

CSBO filed O.A. Nos.452 & 501 of 1989 before the Central

Administrative Tribunal, Cuttack Bench. Entertaining the above O.As.

the Tribunal was pleased to pass an interim order thereby staying the

order of termination, which also included the Petitioner. It is claimed that

pursuant to the said interim order the Petitioner continued to perform her

duties without any break. It appears, on 21.02.1990 the Central

Administrative Tribunal was pleased to dispose of the O.A. along with

similar O.As. by a common judgment observing therein that the services

of the applicants should not be terminated so long as the posts would

continue to exist and the applicants do not otherwise disqualify

themselves for their continuance in the post. It is consequent upon such

development the Petitioner claimed to have joined in service and to have

been paid with arrear salary and allowances and continued to hold the

posts. It is, in July, 1990 the services of the Petitioner along with other

persons have been terminated. Being aggrieved with such order the

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Petitioner alongwith others again filed O.A. No.322 of 1990 on 5.09.1990

before the Central Administrative Tribunal. It is claimed that by virtue of

the order of the Tribunal the Opposite Party No.5 though called back the

Petitioner and others to join their duties, but did not regularize their

services compelling the Petitioner to raise a contempt proceeding for their

services not being regularized. It is when a seniority list was prepared and

circulated, the Petitioner came to know that her past services since 1988

has not been taken into consideration. Being aggrieved with such action

the Petitioner immediately submitted her objection to the seniority list. It

is claimed that even though the objection of the Petitioner was duly

recommended by the Opposite Party No.5, the authorities did not pay any

attention to the same and finding her representation not being attended to

the Petitioner again filed an Original Application before the Central

Administrative Tribunal on the above score requesting therein for a

direction to take into account the past ad.hoc services of the Petitioner for

the purpose of seniority. The Petitioner and the similarly situated persons

also took support of a communication dated 18.09.1989 from the Station

Head Quarter Central Command, Lucknow to the Station Commander,

Head Quarter, Gopalpur indicating therein that five posts of CSBOs are

regular in nature and the sanction is accorded from the competent

authority. This original application was registered as O.A. No.549 of

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2004 and subsequently re-registered as O.A. Nos.549 & 573 to 575 of

2004. Pursuant to notice the Opposite Party Nos.2 to 5 filed a single

counter affidavit thereby resisting all the pleas taken by the Petitioner. It

was specifically pleaded in the counter affidavit that as the regular post of

CSBO was sanctioned by the Hon'ble President in the year 1994, the

services rendered by the Petitioner prior to the sanction accorded in the

year 1994 was purely on a local arrangement and the engagement was on

stop-gap basis as disclosed from the order vide Annexure-7. The Central

Administrative Tribunal even though heard the matter taking help of a

decision in the case of Selina Anthony Vrs. Union of India wherein it

has been observed that the period of ad.hoc service of an employee

should not be ignored while counting the seniority of the employee after

the services of the employee is regularized, however in the common

judgment dated 11.04.2005 the Central Administrative Tribunal in

rejection of the decision cited at the bar at the instance of the applicants

rejected the claim for counting the period of ad.hoc service towards

seniority in the cadre of CSBO, which resulted filing of the present writ

petition by one of the applicants therein.

3. Learned counsel for the Petitioner on reiteration of the

factual background narrated hereinabove contended that for the settled

position of law the period of ad.hoc service of an employee cannot be

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ignored while counting the seniority more particularly after regularization

of a person. It is also contended that since the initial appointment was

made in accordance with the rules, the period spent in the process cannot

be ignored. Referring to the order of the Central Administrative Tribunal

passed taking reliance of a decision of the Administrative Tribunal of the

Calcutta Bench and also a decision of the High Court of Calcutta, learned

counsel for the Petitioner contended that the case involved in the above

citation was on a different footing and was not applicable to the case at

hand. Learned counsel for the Petitioner alleges that there has been no

proper consideration of the above aspect by the Tribunal. It is also

claimed by the learned counsel for the Petitioner that since the aspect of

selection of the Petitioner through the regular recruitment process was

also the opinion of the Tribunal at some places, such aspect should have

been taken care of in the final adjudication of the matter. On the basis of

the GPF records and signal records learned counsel for the Petitioner

claimed that for these records created in September, 1988 should have

also been waked up in mind of the Tribunal. Relying on the paragraph

Nos.58 & 59 of the Financial Regulation Part-I an attempt is also made to

take support of the same. Drawing the attention of this Court to the

observation of the Tribunal learned counsel for the Petitioner contended

that the Tribunal has completely misdirected itself as it would be clearly

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evident from bare perusal of the aforesaid rules that there is nothing to

indicate or suggest that the Petitioner is not entitled for any seniority /

confirmatory or for any regular appointment. It is, in the above

background of the matter, learned counsel for the Petitioner prayed this

Court for interfering in the impugned order dated 11.04.2005 vide

Annexure-8 and setting aside of the same and also for issuing a direction

to the competent authority for computing the ad.hoc services of the

Petitioner for the purpose of seniority in the cadre of CSBO.

4. Basing on the notice in the above writ petition the Opposite

Party Nos.2 to 5 entered their appearance and filed counter affidavit

seriously objecting the claim of the Petitioner and specifically pleaded

that the recruitment process for the post of CSBO clearly mentioned that

the post required to be filled up are purely temporary. It is also contended

that since the post involved was filled up temporarily, offer of

appointment issued to the Petitioner also at paragraph no.2 indicated that

the engagement will be hardly for 89 days and such engagement can be

taken away without any notice and in absence of any reason assigned

therein. It is further also claimed that on expiry of 89 days period the

Petitioner used to be terminated and reemployed again for another period

of 89 days and continued likewise, but however, with one or two days gap

in between such engagements. For the nature of job it is contended that

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the applicant / the Petitioner was holding a temporary engagement.

Referring to the document at Annexure-B/5 the Opposite Party Nos.2 to 5

claimed that the persons holding such post were only regularized

w.e.f.5.01.1994 and for the first time their services with seniority were

included / entered in the general staff Branch, Army Headquarters,

Common Roster against regular vacancies as CSBO Grade-II

w.e.f.5.01.1994. The Opposite Parties also claimed that since the

Petitioner joined being fully aware of the nature of engagement, there is

no scope for the Petitioner to claim for continuity. Referring to the

seniority list the Opposite Party Nos.2 to 5 claimed that the position of

the persons involved have been rightly maintained and the seniority list

was also maintained only after inviting objections from the parties

aggrieved, if any. These Opposite Parties also contended that for the

similar nature of litigations involved involving multiple applications filed

before the Tribunal, these Opposite Parties contested the proceeding

before the Tribunal by filing a common counter affidavit on the score of

the decision of the Central Administrative Tribunal, Kolkata Bench and

also a decision of the High Court of Kolkata. These Opposite Parties also

contended that the decision therein have a direct bearing to the case at

hand and there is no wrong committed by the Tribunal in taking reliance

of such decisions. It is also contended that so far as opening of G.P.F.

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account e.t.c. is concerned, it has no bearing to the claim of the Petitioner

for considering the prior period of service for the purpose of seniority. It

is, in the above background of the matter, learned Central Government

Counsel claimed for dismissal of the writ petition for there being no merit

in the same.

5. Considering the rival contentions of the parties and looking

to the pleadings of the parties made in this petition, this Court finds, there

may not be any denial to the fact that the original recruitment of this

Petitioner along with several others were made in a duly conducted

selection process finding that there was nobody to serve as CSBO in the

military tele-exchange at Gopalpur. It also appears, the Petitioner claimed

that her selection had taken place through a selection board duly

constituted to find-out the merit in the candidates appeared and this

selection board ultimately selected the Petitioner along with some others.

From Annexure-1 this Court also finds, the communication vide

Annexuer-1 was made by the Station Staff Officer on behalf of the

Station Commander on 2nd July, 1988 indicating therein that the

Petitioner has been selected provisionally by a Board of Officers on 18th

March, 1988 against temporary post of CSBO for the Army Exchange at

Gopalpur and requesting the Petitioner therein to produce the documents

indicated in paragraph no.2 therein by making her physical appearance in

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the headquarter on 2nd August, 1988. On scrutiny of Annexure-3 this

Court finds, one Mr. A.K. Sethi, Colonel, Station Commander through

this communication intimated the Petitioner regarding her appointment as

a Civilian Switch Board Operator (CSBO) Class-III for the military

telephone exchange at Gopalpur, Golabandha w.e.f.14th September, 1988,

but however, also indicating therein that the engagement is purely

temporary and meant for 89 days only. Pleading of the parties also

discloses that the Petitioner thereafter continued to hold such posts on 89

days basis. There is also no dispute that on expiry of 89 days the

Petitioner used to be disengaged and reengaged on issuance of fresh

engagement orders. Somewhere it is observed that the gap remained one

day but at some instance it becomes two days on the reengagement of the

Petitioner. It is, at this stage of the matter, this Court from the document

at running page 50 of the brief i.e. a part of Annexure-B/5 filed through

the counter affidavit at the instance of the Opposite Party Nos.2 to 5,

finds, the communication issued by the CSO-2, Sign.4(o) for SO-in-O on

27th April, 1995 contains as follows:

"B/44572/Sigs.4(O),

Signals Records, Jabalpur (MP)

REGULARISATION OF CSBOS IN EASTERN COMMAND AND CENTRAL COMMAND

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1. Reference your letter No.3681/1/CA6/PE/50 dated 8 Apr. 95.

2. Confirmed. Clarifications sought vide para 2 (a) and (b) of your ibid letter are as under :-

(a) As per para 3 (f) of Govt. of India letter No. MOD PU MF 4(3)/89/D (Civ.-II) dated 31 Jan. 91, seniority of employees appointed to regular establishment will be reckoned with only from the date of regular appointment. Since PE of various stn. HQs have been amended w.e.f.05 Jan. 94, these CSBOs have to be taken on GS Branch Common Roster w.e.f. that date only,

(b) As per para 3(g) of above Govt. letter, service rendered on casual basis prior to appointment in regular establishment shall not be counted for the purpose of pay fixation etc.

3. In view of above, you are requested to take these 27 CSBOs on GS Branch Common Roster and issue their posting orders accordingly.

(KL Hana) CSO CSO 2 Sign. 4(O) For SO-in-O"

It need be recorded here that the above order was never

challenged. It is, on the other hand, the claim although was only to count

the past services for the purpose of seniority.

6. On reading of the above, this Court finds, on a query being

made by the Department to calculate the seniority in the particular cadre

through this letter, the concerned authority intimated that since the P.E. of

various station headquarters have been amended w.e.f.5.01.1994 it was

communicated therein that these CSBOs have to be taken on G.S. Branch

Commission Roster w.e.f. that date only. Through sub-paragraph 'b' it

has been further clarified that the services rendered on casual basis prior

to the appointment in regular establishment shall not be counted for the

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purpose of pay fixation etc. This Court here observes, the persons

engaged as CSBO prior to 5.01.1994 are all holder of temporary post and

it is only after 5.01.1994 post of CSBOs became a confirmed cadre post

on creation of such post being approved by the competent authority.

There also clearly appears that existence of such post prior to 05.01.1994

was not only a local arrangement but also purely on temporary basis. For

the above and for the clear direction therein that there shall be no

counting of the casual continuation prior to creation of regular post shall

not be counted for the purpose of pay fixation, the Petitioner is not

justified to claim her seniority on the basis of continuing her period of

service in a non-sanctioned and casual post. This Court also finds, there is

virtually no challenge to either the creation of the CSBO posts

w.e.f.5.01.1994, nor there is even any challenge to the communication

dated 27.04.1995 as find place at Annexure-B/4. It is, in the

circumstance, this Court observes, if the Petitioner was at all aggrieved by

the communication at Annexure-B/5 nothing prevented the Petitioner to

challenge the decision of the authority therein and in absence of which

the claim of the Petitioner to consider her past service for the purpose of

seniority being a holder of temporary and non-sanctioned post is not

sustainable in the eye of law.

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7. Now coming to the observation and findings of the Central

Administrative Tribunal at Annexure-8 this Court finds, the Tribunal was

justified in its reason taking into account the aforesaid aspect and relying

on a judgment of the Administrative Tribunal Kolkata Bench in O.A.

No.1489/98 being confirmed by the High Court of Kolkata in W.P.(C)

No.583/01. In the process, this Court finds no infirmity in the impugned

order vide Annexure-8 requiring to be interfered with.

This Court here also likes to go through certain decisions

cited at Bar, but finds none of the decision has any bearing to the case at

hand.

8. The writ petition thus stands dismissed for having no merit.

There is, however, no order as to costs.

(...........................) (Biswanath Rath) Judge

C.R. Dash, J. : I agree.

(.............................) (C.R. Dash) Judge

Orissa High Court, Cuttack.

The 4th day of December, 2021// Ayaskanta Jena, Senior Stenographer