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2009 DIGILAW 607 (ORI)

NARAYAN CHANDRA PRADHAN v. UNION OF INDIA (UOI)

2009-08-05

B.N.MAHAPATRA, L.MOHAPATRA

body2009
JUDGMENT : L. Mohapatra, J. - O.J.C. No. 16353 of 2001 and O.J.C. No. 16769 of 2001 are directed against the order of the Central Administrative Tribunal, Cuttack Bench, Cuttack dated 10th October, 2001 passed in O.A. No. 743 of 1996 whereas O.J.C. No. 17021 of 2001 and O.J.C. No. 17022 of 2001 are directed against the order of the Central Administrative Tribunal, Cuttack Bench, Cuttack dated 23rd May, 2000 passed in O.A. No. 42 of 1994. All the four writ applications involve similar fact and common question to be decided and therefore, all the four cases were tagged together and heard analogously. 2. Out of the three applicants in O.A. No. 743 of 1996, applicant No. 1 Narayan Chandra Pradhan has filed O.J.C. No. 16769 of 2001 and applicant No. 2 Prahallad Barik has filed O.J.C. No. 16353 of 2001. Similarly, out of five applicants in O.A. No. 42 of 1994, applicants 1, 2, 4 and 5 have filed O.J.C. No. 17021 of 2001 whereas applicant No. 3 has filed O.J.C. No. 17022 of 2001. For convenience we deal with the case of Narayan Chandra Pradhan which was argued before us and the findings in this case shall cover the rest three writ applications. 3. All the Petitioners were working as Khalasis belonging to Group-D category. On 7.6.1980 the Divisional Personal Officer, Khurda invited applications from the Group-D employees for appearing in an aptitude test for ad hoc promotion to the post of Junior Clerk. The list of candidates to appear in the test was published on 11.8.1980 and the test was conducted on 26.8.1980. The result was declared and the Petitioners were considered suitable for ad hoc promotion to the post of Junior Clerk and accordingly, they were given ad hoc promotion. The Petitioner Narayan Chandra Pradhan apprehending reversion to the post of Group-D filed O.J.C. No. 2000 of 1983 before this Court. An interim order was passed directing stay of order of reversion, if not already effected. The Railway Administration took a stand that the Petitioner had already been reverted, but ultimately the said writ application was disposed of on 10.1.1985 quashing the order of reversion with a further direction that the Petitioner is entitled to service benefits and he would be deemed to be continuing in the post of Junior Clerk. The Railway Administration took a stand that the Petitioner had already been reverted, but ultimately the said writ application was disposed of on 10.1.1985 quashing the order of reversion with a further direction that the Petitioner is entitled to service benefits and he would be deemed to be continuing in the post of Junior Clerk. The Department filed an appeal before the Supreme Court and the said SLP was rejected on 26.08.1987. However, the Supreme Court observed that it will be open for the Railway Administration to file a review before this Court. Accordingly, a review was filed bearing Review Petition No. 28 of 1987, but the same was rejected on 04.04.1991. After rejection of the Review Petition, the opposite parties implemented the order of this Court giving all service benefits to the Petitioner. There being dispute with regard to inter-se seniority in the rank of Senior Clerk and the period of ad hoc service rendered by the Petitioner having not been taken into consideration, the Petitioners in all the four cases, as stated earlier, filed two different Original Applications vide O.A. No. 743 of 1996 and O.A. No. 42 of 1994 claiming that the period of ad hoc service should be counted towards seniority and they should be given promotion to the post of Senior Clerk from the date their juniors were given promotion. A counter affidavit was filed before the Tribunal by the opposite parties stating therein that the Petitioners were promoted to the post of Junior Clerk on ad hoc basis only on the basis of a literacy test but not on the basis of prescribed departmental examination for consideration before promotion to the rank of Junior Clerk. The judgment of the High Court in the aforesaid writ application only speaks about legality of the reversion order but there is no direction by this Court to consider the period of ad hoc service for the purpose of seniority. It was also stated in the counter affidavit that a departmental test was conducted and the Petitioners have been empanelled by order dated 13.05.1995 for regular promotion as Junior Clerk and they can only claim seniority from the date they are actually given regular promotion to the post of Junior Clerks. The Tribunal, in the impugned judgment, referred to a decision of the Apex Court in the case of The Direct Recruit Class-II Engineering Officers' Association and others Vs. The Tribunal, in the impugned judgment, referred to a decision of the Apex Court in the case of The Direct Recruit Class-II Engineering Officers' Association and others Vs. State of Maharashtra and others, as well as another decision of the Apex Court in the case of State of W.B. and Others Vs. Aghore Nath Dey and Others, and held that if ad hoc appointment is made not in accordance with rules, period of officiating service will not be taken into consideration for the purpose of seniority. Seniority will be counted only after such ad hoc service is regularized according to the rules. On this finding, both the original applications were dismissed. 4. In order to find out as to whether the ad hoc period can be taken into consideration for the purpose of seniority or not, it is required to look into the aforesaid two decisions of the Hon'ble Supreme Court. In the case of Class-II Engineering Officer's Association (supra) the Apex Court in paragraphs 47(A) and 47(B) held as follows: 47(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. 47 (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted. This has been explained in a subsequent decision of the Apex Court in the case of State of West Bengal v. Aghore Nath Dev (supra) and the relevant passage is quoted below: We shall now deal with conclusions (A) and (B) of the constitution bench in the Maharashtra Engineers case quoted above. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed 'according to rules'. The corollary set out in conclusion (A), then is, that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such posts cannot be taken into account for considering the seniority. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stop gap arrangement. The case of the writ Petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority. This being the obvious inference from the conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within it's ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A). In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the 'rules' and the latter expression' 'till the regularization of his service in accordance with the rules'. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the 'rules' and the latter expression' 'till the regularization of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against as existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularization, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularization of his service, in accordance with the rules. In such cases, the appointee is not blamed for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop gap arrangement and not according to rules.... 5. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop gap arrangement and not according to rules.... 5. In the light of the aforesaid two decisions it was contended on behalf of the department that appointment/promotion having not been given in accordance with the rules, the officiating period in the said post cannot be taken into account for the purpose of seniority. Shri Kanungo, the learned Counsel appearing for the Petitioners referring to the very same two decisions submitted that in paragraph 47-A of the judgment in the case of Class-II Engineering Officer's Association (supra) it was held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. This finding according to Shri Kanungo, the learned Counsel appearing for the Petitioners has no application to the facts of this case since initial appointment/promotion though was only on ad hoc, it had not been made as a stop gap arrangement. Paragraph-47 (B) of the said judgment was explained lateron in the case of State of West Bengal v. Aghore Nath Dev (supra) and the explanation is applicable to the case of the Petitioners even if the contention of the learned Counsel for the department is accepted. 6. From the documents placed before us, it appears that under Annexure-3 it was proposed to conduct the literacy test (written) in favour of the Class IV staff indicated therein who have got lion in the division in the Engineering Branch for ad hoc promotion to the post of Junior Clerk on ad hoc basis. The Petitioners were empanelled in the said list and were given ad hoc promotion to the post of Junior Clerk after having qualified in the literacy (written) test. Therefore, it cannot be said that no test whatsoever was conducted for the purpose of giving promotion to the post of Junior Clerk. The Petitioners were empanelled in the said list and were given ad hoc promotion to the post of Junior Clerk after having qualified in the literacy (written) test. Therefore, it cannot be said that no test whatsoever was conducted for the purpose of giving promotion to the post of Junior Clerk. There is no dispute that the Petitioners after being promoted to the post of Junior Clerk on ad hoc basis continued without interruption till they were regularly absorbed in the post. If Clauses 47(A) and 47(B) of the judgment in the case of Class-II Engineering Officer's Association (supra) are read harmoniously, it will be clear that the case of the Petitioners is covered by the ratio laid down by the Hon'ble Supreme Court that they having been appointed/promoted to the post of Junior Clerk through a test and having continued on ad hoc basis till they were regularly absorbed as junior Clerks, their ad hoc period of service cannot be overlooked and the same has to be taken into account for the purpose of seniority. Such ad hoc promotion was neither made as a stop gap arrangement nor had it been interrupted at any point of time. Moreover this Court while disposing of O.J.C. No. 2000 of 1983 had specifically observed that the Petitioner shall be deemed to be continuing in the promotional post. We are, therefore, of the view that ad hoc period of service of the Petitioners as Junior Clerk should be taken into account for the purpose of fixation of seniority in the rank of Junior Clerk. 7. For the reasons stated above, we set aside the impugned judgments in all the four cases and hold that the ad hoc service rendered by the Petitioners in the post of Junior Clerk be taken into account for the purpose of fixation of seniority in the rank of Junior Clerk. Accordingly, all the four writ applications are allowed. Final Result : Allowed