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2003 DIGILAW 262 (GAU)

A. T. Gayakwad v. Union of India (UOI)

2003-06-20

P.P.NAOLEKAR, RANJAN GOGOI

body2003
JUDGMENT Ranjan Gogoi, J. 1. The Writ Petitioner, who was at the relevant time, working as a Studio Executive in the All India Radio at Dharwad was promoted to the post of Transmission Executive, on adhoc basis, by an order dated 21.3.1983. He was posted at Mangalore. The aforesaid; promotion though made on adhoc basis was on the recommendation of a regular departmental promotion committee. The Petitioner continued to serve on adhoc basis till 23.10.1984, on which date he was appointed to the post of Transmission Executive on regular basis with effect from 21.8.1984. Contending that he was entitled to the benefit of service rendered by him as Transmission Executive on adhoc basis, during the period from 21.3.1983 to 21.8.1984, for computation of his seniority, he submitted several representations to the authority and the same not having been responded to favourably, the writ Petitioner instituted O.A. No. 9/1997 before the learned Central Administrative Tribunal, Guwahati Bench. The learned Tribunal, by judgment and order dated 1.7.1997 having answered the claims of the writ Petitioner in the negative, the instant writ petition has been filed challenging the aforesaid judgment and order dated 1.7.1997 passed by the learned Tribunal. 2. We have heard Mr. M.K. Choudhury, learned Counsel for the Petitioner. None has appeared on behalf of the Respondents. 3. A perusal of the judgment and order passed by the learned Tribunal negating the claims of the Writ Petitioner would go to show that reliance was placed by the learned Tribunal on a judgment of the Apex Court in the case of Direct Recruit Class-II Engineering Officer's Association-v.-State of Maharashtra, reported in AIR 1990 SC 1607 . The learned Tribunal, on a consideration of the facts of the case, held that the adhoc appointment of the Petitioner during the period in question to be covered by the corollary of proposition- 'A' set out in paragraph 44 of the aforesaid judgment of the Apex Court and on that basis thought it proper to hold that the Petitioner would not be entitled to the benefit of the adhoc service rendered by him for computation of his seniority in the cadre of Transmission Executive. 4. The adhoc promotion of the Petitioner to the post of transmission Executive was made on the basis of the recommendation of a regular departmental promotion committee constituted in accordance with the service Rules in force. 4. The adhoc promotion of the Petitioner to the post of transmission Executive was made on the basis of the recommendation of a regular departmental promotion committee constituted in accordance with the service Rules in force. The aforesaid appointment was against an existing vacancy and his subsequent regularization made by order dated 23.10.1984 was on the basis of the same recommendation of the departmental promotion committee pursuant to which he was earlier appointed on adhoc basis by order dated 21.3.1983. The aforesaid facts, which would be crucial in determining the entitlement of the writ Petitioner to the reliefs claimed are not in dispute. 5. The judgment of the Apex Court in the case of Direct Recruit Class-II Engineering Officers Association (supra) particularly the proposition 'A' and 'B' laid down in paragraph 44 of the aforesaid judgment has been amplified and elaborated in a subsequent decision of the Apex Court in the case of State of West Bengal-v.-Aghore Nath Dey reported in 1993 3 SCC 371 . The Apex Court in the case of Aghore Nath Dey (supra) had laid down that proposition 'A' would apply to cases where an incumbent had been appointed according to the rules. The corollary set out to proposition 'A', has been held to be applicable to those cases where the initial appointment was purely adhoc and made by way of a stop-gap arrangement. Proposition 'B' has been interpreted by the Apex Court, to mean, to cover those cases, where the initial appointment is not made by following the procedure laid down by the rules(emphasis is ours). The confusion, if any, between the corollary of proposition 'A' and proposition 'B' has been set at rest by the Apex Court to mean that in case of corollary to proposition 'A', the appointment must be purely adhoc and made by way of a stopgap arrangement and contrary to rules. Proposition 'B' has been explained to cover such appointments, where in making the appointments the procedure prescribed by the rules has been followed. 6. Adverting to the facts of the present case, what is clearly noticeable is that the initial appointment of the Petitioner being on adhoc basis, the same would not be covered by proposition 'A' as above. Proposition 'B' has been explained to cover such appointments, where in making the appointments the procedure prescribed by the rules has been followed. 6. Adverting to the facts of the present case, what is clearly noticeable is that the initial appointment of the Petitioner being on adhoc basis, the same would not be covered by proposition 'A' as above. At the same time, the appointment being against a substantive vacancy and on the recommendation of the departmental promotion committee, though the label 'adhoc' has been used, the same would not be purely adhoc promotion/appointment by way of stop-gap arrangement. The said appointment for all intents and purposes was a regular appointment made in accordance with the provisions of the rules, but the same had to be labeled as an adhoc appointment possibly because certain formalities had not been completed before the appointment was made. The said appointment was subsequently regularised by order dated 23.10.1984 on obtaining the approval of the Station Director, All India Radio, Bangalore on 11.10.1984. The materials on record do not disclose any conceivable reason as to why the Petitioner had to be appointed on adhoc basis except that the requisite approval of the authority was not obtained at the time of his initial appointment, which was subsequently received. That apart, the regularisation of the Petitioner's adhoc appointment made by order dated 23.10.1984, as it has been noticed hereinbefore, was on the basis of the recommendation of the same departmental promotion committee and no fresh departmental promotion Committee was held. In such a situation, the case of the Petitioner appears to be covered by proposition 'B' of paragraph 44 of the Direct Recruit's case as explained in the case of Aghore Nath Dey (supra). The Petitioner, therefore, would be entitled to have the benefit of the period of his adhoc service counted for seniority in the cadre of transmission Executive. In view of the foregoing discussion, this Writ petition is allowed and the judgment and order dated 01.07.1997 passed by the learned Central Administrative Tribunal, Guwahati Bench, in Original Application No. 9/1997 shall stand appropriately interfered with. Petition allowed