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2002 DIGILAW 464 (RAJ)

Malti Tripathi v. Union of India

2002-02-21

O.P.BISHNOI, RAJESH BALIA

body2002
JUDGMENT 1. - The petitioner challenges the order passed by the Central Administrative Tribunal, Annexure-8 dated 28.4.2000, rejecting the Original Application No. 402/1993, preferred by the petitioner as he was aggrieved with the interse seniority between herself and respondent No. 3 D.K. Ajmera on the post of senior clerk. 2. The case of the petitioner has been that she has been appointed as junior clerk on 21.10.1978 and has been promoted as senior clerk on adhoc basis on 8.2.1989. On the other hand, the respondent No. 3 was appointed as junior clerk and was promoted on adhoc basis as a senior clerk only on 31.7.1992. In the seniority list of the junior clerks (Annexure-A/4), the inter se position of the petitioner and the respondent No. 3 has been shown to be at No. 2 and No. 6 respectively. 3. Thus, throughout the respondent No. 3 has been junior to the petitioner. However, the adhoc appointment given to the respondent No. 3 on 31.7.1992 was converted into the regular appointment prior to the petitioner and therefore in the cadre of the senior clerk, he has been shown senior to the petitioner. This, according to the petitioner results in violation of Article 14 and 16 of the Constitution of India in the matter of providing conditions of service as far as he is concerned. 4. It has been urged by .~ he respondents that the respondent No. 3 has been appointed on adhoc basis as senior clerk as a result of the competitive examination held for that purpose which opportunity was not availed of by the petitioner. There was no violation of Article 16 of the Constitution of India in giving regular promotion to the respondent No. 3 as a senior clerk prior to the petitioner. 5. The Central Administrative Tribunal upheld the contention of the respondents, keeping in view the note appended to the order of adhoc promotion given to the petitioner on 8.2.1989. 6. The aforesaid controversy necessitates looking into the documents relating to the adhoc promotion of the petitioner and the respondent No. 3 as well. So far as the date of the appointment of the respondent No. 3 on the post of junior clerk and date of adhoc appointment on the post of senior clerk and the seniority list are concerned, fact that the petitioner was senior as junior clerk to respondent No. 3 is not in dispute. So far as the date of the appointment of the respondent No. 3 on the post of junior clerk and date of adhoc appointment on the post of senior clerk and the seniority list are concerned, fact that the petitioner was senior as junior clerk to respondent No. 3 is not in dispute. It is also not in dispute that since the petitioner was appointed on adhoc basis on the post of senior clerk on 8.2.1989, he continued on the post and was never reverted. 7. While the petitioner was continuing to hold the post of senior clerk, a circular dated 8.7.1992 was issued by the respondents Nos. 1 and 2. It is the bone of contention that because of the fact that respondent No. 3 was promoted in persuance of it, in which process the petitioner did not participate, the respondent No. 3 has been assigned seniority above petitioner amongst senior clerks. It will be relevant to reproduce the said document (Annexure-A/10) in its entirety which reads as under: "A post of senior clerk in the grade of Rs. 1200-30-1560-B-40-2040 on adhoc basis will be filled in by Departmental competitive Examination. 2. These junior clerks who have completed five years regular services on the post of Junior clerks will be eligible to appear in the Departmental competitive Examination for the post of senior clerk. 3. All the eligible Junior clerks are informed that the Department competitive Examination will be held on 29th July, 1992 at 3.30 p.m. at Welfare Commissioner Office, Bhilwara." 8. While the respondent No. 3 appeared at the examination held in persuance of aforesaid direction, the petitioner did not appear, is also a fact which has not been disputed. 9. It is the case of respondents that since the petitioner has not appeared at examination in persuance of Annexure-A/10, he lost ground to those who appeared in said examination. 10. While the respondent No. 3 appeared at the examination held in persuance of aforesaid direction, the petitioner did not appear, is also a fact which has not been disputed. 9. It is the case of respondents that since the petitioner has not appeared at examination in persuance of Annexure-A/10, he lost ground to those who appeared in said examination. 10. However, the contention of the learned counsel for the petitioner is that in the Circular dated 8.7.1992, it has been clearly given out that the competitive examination will be held for the purpose of filling up a post of senior clerk on adhoc basis and the petitioner was already continuing on the post and the competitive examination, and as the process was not meant for filling up the post of senior clerk on regular basis therefore, she was not regularised to and did not appear in the said competitive examination, taking it to be a case that even by appearing in the examination she will continue to be senior clerk on adhoc basis and was of little academic value only so far as she was concerned. It was not given out in the said Circular that only such persons who will be appointed as senior clerk in persuance of the said circular will be considered for the regular appointment in future by excluding those who have not been appointed in persuance of the said circular, though were already promoted earlier to said circular. Nor it gave out that those who will not appear at examination are likely to be reverted on persons being available who have passed said examination. 11. Respondent No. 3 has cleared the competitive examination. Thereafter, an order was made on 31.7.1992 appointing respondent No. 3 as senior clerk on adhoc basis until 31.1.1993. By the same order petitioner too was continued as Senior Clerk on adhoc basis by including his name as appointee also until 31.1.1993. This is further indication of the fact that appearing at the examination or non-appearing was not to have any effect on the persons who are already functioning as the senior clerk on adhoc basis. This accords with the conclusion drawn by the petitioner that it was not necessary for her to appear in the competitive examination for the post of senior clerk on adhoc basis. 12. This accords with the conclusion drawn by the petitioner that it was not necessary for her to appear in the competitive examination for the post of senior clerk on adhoc basis. 12. However, after giving appointment on the post of senior clerk on adhoc basis until 31.1.1993 to the respondent No. 3 as well as to the petitioner, by order dated 16.12.1992 respondent No. 3 was appointed on regular basis. However, the petitioner's services on the post of senior clerk on adhoc basis were not terminated. During the pendency of the Original Application, before the Tribunal the petitioner was also appointed regularly as senior clerk. It is common ground that no prior competitive examination were held before making the adhoc appointment of the petitioner as regular. It is stated by the learned counsel appearing for the Union of India that the process for holding the competitive departmental examination to fill the post of senior clerks was abandoned. 13. In the aforesaid circumstances, it is apparent from the facts that the exercise of requiring candidates to undergo the competitive examination vide Circular dated 8.7.1992 was only for the purpose of filling up the post on adhoc basis and the petitioner who was already holding the post of senior clerk on adhoc basis did not choose to appear for the purpose of seeking appointment on adhoc basis on the post which was already held by him. As a matter of fact, the non-availing of the opportunity by the petitioner to appear in the competitive examination held in persuance of Circular dated 8.7.1992 (Annexure-A/10) was a result of clear representation made by the Union of India that the exercise was only to fill the post on adhoc basis, followed with joint order passed on 31.7.1992 giving first adhoc appointment to respondent No. 3 and giving appointment to petitioner in continuation upto same period on adhoc basis. 14. Thus, the petitioner had been excluded from the exercise of competitive examination on the representation made by the respondent-Union of India. Thereafter converting the said exercise of giving adhoc appointment into regular appointment of respondent No. 3 alone prior to petitioner was a direct result of said representation. This clearly amounts to denial of equality of appointments in the matter of employment for the petitioner. Thereafter converting the said exercise of giving adhoc appointment into regular appointment of respondent No. 3 alone prior to petitioner was a direct result of said representation. This clearly amounts to denial of equality of appointments in the matter of employment for the petitioner. Had it been conveyed in the Circular dated 8.7.1992 that only such persons who have been appointed on adhoc basis on the post of senior clerk in persuance of the said Circular shall be considered for the regular appointment, thereafter, different consideration would have arisen. In such event, absence of petitioner from the examination would have been an act on his part and it would have been a case of non-availing of the opportunity afforded to him. However, the circumstances clearly goes to show contrary. The only legitimate conclusion is that the prior regular appointment of the respondent No. 3 and assigning seniority to the respondent No. 3 above the petitioner in the grade of senior clerk notwithstanding the petitioner was functioning as senior clerk before the appointment of respondent No. 3 as adhoc senior clerk, was wholly arbitrary and unjustified. Since, the petitioner has continued to hold the post of senior clerk since his first appointment on 8.2.1989 and has also been regularised, the real question now survives as to who ought to be considered senior. The petitioner is therefore, entitled to be treated as regularly appointed at least since with effect from the date respondent No. 3 was regularly appointed i.e. 16.12.1992 and to be assigned seniority above respondent No. 3 amongst senior clerks, he is entitle to a seniority in the channel that is the junior clerk in the of senior clerks. 15. The petition, accordingly, succeeds. The order passed by the Central Administrative Tribunal is set aside and the respondents are directed to recast the seniority of the petitioner on the post of senior clerk in order of the seniority as above, by treating the petitioner to have been regularly appointed w.e.f. 16.12.1992. No orders as to the costs.Writ Petition allowed - Decision of cat set aside - Direction given to treat petitioner senior. *******