Judgment:
1. Applicant, Shri N.C. Sharma, Upper Division Clerk (UDC, in short) in the office of the Regional Labour Commissioner (C), Asansol being aggrieved by the order dated 6.4.1990 in respect of regularisation of his service in the cadre of UDC and rejection of the representation dated 17.4.1990 vide letter dated 30.3.1992 had filed this application for regularisation of his past adhoc service in the cadre of UDC with effect from 3.7.1982 and for assignment of appropriate seniority of the applicant in the grade of UDC above the position of Shri R.M. Prasad, UDC and Shri M.P. Mahato, UDC who were junior to the applicant as LDC and promoted as UDCs later on a permanent basis before the applicant was declared permanent. The case of the applicant, in short, is that he was appointed as LDC in the office of the Regional Labour Commissioner (Central), Asansol on 11.4.1968. Thereafter he was promoted to the post of UDC in the said office with effect from 3.7.82 in a vacancy occurred when Shri M. Nag, UDC was promoted as Labour Enforcement Officer. But the applicant's service has not been regularised with effect from 3.7.82 after rendering service for more than 5 years in the cadre of UDC and accordingly he approached the CAT, Calcutta Bench vide OA 804/87 for regularisation of the appointment as UDC. The respondents contested the said case by filing written statement. In that OA 804/87 the Tribunal directed the respondents to consider the applicant's claim before 31.12.87 for the purpose of regularisation vide order dated 26.10.87. Thereafter the respondents had convened a meeting of the Departmental Promotion Committee (DPC) on 6.4.90, (Annexure/A) and on the recommendation of the DPC the applicant was promoted to the post of UDC in the scale of pay of Rs. 1200-2040/ on regular basis with effect from the date of the meeting of the DPC i.e., 6.4.90. The applicant filed representation to the authority; but the respondents did not consider the same and rejected it vide order dated 30.3.90. Hence he has filed this application again for a direction upon the respondents regularising service with effect from 3.7.82 instead of 6.4.90, since he rendered service in the cadre of UDC for nearly 8 years without any break. It is alleged by the applicant that the act of the respondents for non consideration of his regularisation with effect from 3.7.82 had resulted in denial of his legitimate claim and such action is violative of the Arts. 14, 16 of the Constitution. It is also alleged by the applicant that due to administrative delay in holding the DPC meeting in time he had to remain on ad hoc basis for over a period of 8 years till the DPC meeting on 6.4.90 and during this period his juniors have became UDC on regular basis and they become senior to the applicant in the seniority list of UDC for the purpose of OS and LEO (C) and he submits that in view of the decision of the Hon'ble Apex Court Kuldeep Chand Sharma and Anr. v. Delhi Administration and Anr., 1978(2) SLR 379=1978 SLJ 461 (Delhi) and Anr. judgment RagbirSingh and Ors. v.Union of India and Ors., (1992) 19 ATC 315 (SC) his past service on ad hoc basis ought to have been counted by the respondents for the purpose of seniority. It is also alleged by the applicant that his juniors, Shri Ram Prasad and Shri Gopal Ram, UDC were promoted to the post of UDC in the year of 1987 ignoring the case of the applicant on the basis of the DPC held on 10.12.86. It is also alleged by the applicant that similarly circumstanced employees viz., Smt. Urmila Baxalaand Shri A.K.Majumdar who rendered adhoc service were taken into account while fixing the notional seniority vide order dated 27.5.96, Annexure 'X' to the supplementary application, but the applicant's case was not considered. Therefore, the action of the respondents is violative of the Art. 14 and liable to be quashed and the applicant is entitled to get his past service counted for the purpose of seniority and he should be assigned seniority in the cadre of UDC above the position of Shri Ram Prasad and M.P. Mahato, UDC who were junior to him as LDC and promoted to the post of UDC later on permanent basis before the applicant was declared permanent.
3. The respondents files written reply to the OA and also written reply to the supplementary application. The respondents denied the claim of the applicant and it is stated by them in their reply that there was no regular vacancy of the post of UDC with effect from 3.7.82. On account of promotion of Shri M. Nag, UDC in the post of LEO (C) on ad-hoc basis, the applicant was appointed against that vacancy and it is established procedure that unless the promotee is promoted from the substantive post to higher post scale on regular basis, there cannot be any regular vacancy in the post of UDC. So, the applicant has no legal ground for regular promotion as UDC on account of promotion of Shri M.Nag from the post of UDC to the post of Labour Enforcement Officer (Central) on ad hoc basis who retired from service on and from 31.1.1993. But due to pending decision in Court case a regular post was to be kept reserved for Shri Nag. It is also stated by the respondents that supersession by S/Shri R.N. Prasad and N.P. Mahato, UDCs on regular basis are concerned, it is stated that in the case of Shri R.N.Prasad's promotion open consent was called for from all the concerned eligible LDCs of this Region at the request of Regional Labour Commissioner (Central), Chandigarh and similarly in the case of Shri Mahato also open option was obtained from the LDCs for the post of UDCs in Chandigarh Region and through DPC held by the RLC (C), Chandigarh both the above persons have got their promotion on regular basis in Chandigarh Region and their seniority was maintained in Chandigarh only. Therefore, their promotion as UDC on regular basis has caused no hardship or injury to the applicant, who was UDC on ad hoc basis in Asansol region. It is stated by the respondents that however, Shri R.N.Prasad regular UDC of Chandigarh Region has been transferred to this Region vide CLC (C)'s office order dated 18.5.89 and he joined as UDC w.e.f. 21.8.89 and Shri Prasad was transferred against a post reserved for examination quota in view of his personal family problems. It is also mentioned there that seniority of the transferred UDC will be fixed below all the UDCs of the respective region and since the applicant was holding the post of UDC on adhoc basis at that time Shri Prasad became senior to him in the Asansol region. Consequent on regularisation of Shri R.N. Dwivedi as regular Office Superintendent at Patna region one regular post of UDC had fallen vacant in Asansol region and Shri R.N. Prasad has been accommodated against that post and subsequently in the vacant post of Shri D.P. Mukherjee who has been transferred to Calcutta region vide office order dated 18.5.89 (Annexure-II to the reply) and in pursuance of the CLC (C)'s direction contained in the memorandum dated 15.5.89 (Annexure-I to the reply), applicant has been regularised through DPC hefd on 6.4.90. So, in view of the aforesaid circumstances there was no chance for his regularisation till Shri D.P. Mukherjee was transferred. Therefore, there was no other choice to the applicant but to continue as UDC on ad hoc basis during the intervening period of his own as the petitioner did not opt to go outside the region and accept the promotion. His juniors opted and got promotion in other region. So, the application is devoid of merit and liable to be dismissed.
4. We have heard the learned advocates of both the parties and perused the records. It is contended by the learned advocate, Mr. Ghosh on behalf of the applicant that the applicant was promoted to the post of UDC on ad hoc basis against the substantive vacancy, but his ad hoc service was not regularised by the Department despite the vacancy was available and the respondents regularised the service of the applicant in the cadre of UDC on the recommendation of the DPC which was constituted as per direction of the Tribunal passed in OA 804/87 which was disposed of on 26.10.87 and the DPC which met in the year of 1990 did not make the selection according to the vacancy which occurred in each year during the period of 1980-90. That inaction of the DPC held by the respondents has resulted injustice to the applicant. Secondly, learned advocate, Mr. Ghosh further contended that the applicant was working in the region with effect from 6.4.90 and similarly circumstanced employees viz., Smt. Urmila Baxalaand Shri A.K. Majumdar who rendered ad hoc service were taken into account while fixing the notional seniority vide order dated 27.8.96, Annexure-II to the supplementary application; but the respondents did not take into account the ad hoc service of the applicant for notional seniority and acted discriminately in denying the same benefit of seniority to him.
Thirdly, learned advocate, Mr. Ghosh contended that on the seniority list Of LDCs, Annexure-X3 to the supplementary application as on 30.10.87 there were vacancies due to retirement of UDCs, but the applicant was not considered and he made representation to that effect, but to no effect and it is contended by the learned advocate, Mr. Ghosh that Shri R.N. Prasad, LDC and Shri Gopal Ram, LDC were promoted to the post of LDC vide letter dated 21.1.87 on the recommendation of the DPC held 10.12.86 in the Chandigarh Region and subsequently, said Shri Ram has been accommodated in the cadre of UDC in Asansol region ignoring the case of the applicant. Therefore, he is entitled to get the seniority over Shri Ram Prasad and he is entitled to be regularised in the cadre of UDC with effect from 3.7.82 i.e., from the date of ad hoc promotion to the cadre of UDC since substantive vacancy was available during the period of 1982-90. So, actions of the respondents are highly arbitrary and illegal in the matter of denying the claim of seniority of the applicant as well as regularisation of the service and relief sought for in the application should be allowed.
5. Mrs. Banerjee, learned advocate appearing on behalf of the respondents submits that the application has been filed on misconception of fact and law involved in this case. The applicant cannot claim seniority over Shri R.N. Prasad, who opted for promotion to the post of UDC in the Candigarh Region. But the applicant did not exercise option. Therefore, his case was not considered for promotion to the post of UDC in Chandigarh region from the post of LDC. Shri Ram Prasad, who exercised option, was appointed as UDC earlier than the applicant on regular basis. Therefore, he is senior to the applicant in the cadre of UDC and none of the persons above whom the applicant claimed seniority in the cadre of UDC on the basis of the promotion was made a party in this OA and therefore, the application suffers from nonjoinder of necessary parties. Mrs. Banerjee, learned advocate further submits that Shri R.N. Prasad has been transferred to Asansol region on his personal ground with a stipulation that he will get bottom seniority in the cadre of UDCs who were appointed on regular basis, but when Shri R.N. Dwivedi has been regularised as OS at Patna region on regular basis, one post of UDC had fallen vacant at Asansol region and Shri R.N. Prasad has been accommodated in that post and subsequently in the vacant post of Shri D.P. Mukherjee who has been transferred to Calcutta region vide letter dated 18.5.89, Annexure-II to the reply the applicant has been accommodated on the recommendation of the DPC held on 6.4.90 on regular basis and therefore, the applicant is not entitled to claim seniority either before Shri R.N. Prasad or others and the application is devoid of merit and liable to be dismissed. Mrs. Banerjee also refers to various judgment of the Hon'ble Apex Court Chief of Naval Staff and Anr. v. UOI and Ors., 1996 SCC (L&S) 328 and another case E. Ramakrishnan and Ors. v. U.O.I and Ors., 1996 (2) SCSLJ 403 and another judgment Dr. Surinder Singh Jaswal and Anr. v. U.O.I. and Ors., 1990 (2) SCSLJ 240 and Hindustan Shipyard Ltd. & others v. U.O.I, and Ors., 1996 (1) SCSLJ 240. Referring to the aforesaid judgments, Mrs. Banerjee contended that the seniority in the post of UDC will be reckoned only on the basis of the regular selection and not from the date of ad hoc appointment and since the applicant was appointed as UDC on ad hoc basis and for a stopgap arrangement, therefore, his case for seniority cannot be entertained and the application is liable to be dismissed.
6. In view of the divergent arguments advanced by the learned advocates of both the parties it has to be considered by us whether the applicant is entitled to get seniority on the basis of the ad hoc appointment in the cadre of UDC with effect from 1982 and whether the applicant was wrongly superseded for promotion to the post of UDC when substantive vacancy arose in the Department for the purpose of regularisation of the service of the applicant. It is not disputed by the applicant that he was appointed on ad hoc basis against the vacancy arose due to promotion of one Shri Nag from the post of UDC to LEO (C) on ad hoc basis, but Shri Nag retired in the year of 1993 on ad hoc basis and his service was not regularised by way of regular appointment till 1993.
So, the applicant cannot claim the regularisation in the cadre of UDC unless it is shown by him that he had been appointed against the substantive vacancy in the cadre of UDC. From the record we find that during the period 1982-90 i.e., when the applicant was not regularised a substantive vacancy in the cadre of UDC arose in the Chandigarh region and option was called for from the eligible candidates for promotion to the post of UDC in Chandigarh Region. It is admitted fact in this case that the applicant did not opt for promotion against the vacancy arose in other region i.e. in the Chandigarh Region. It is found that Shri R.N. Prasad and another officer was mentioned in the application had opted for promotion to the post of UDC in the Chandigarh Region and the DPC held for consideration of their promotion and accordingly, they were found fit and as per recommendation of the DPC, Shri R.N. Prasad was appointed on promotion on regular basis to the post of UDC in Chandigarh Region. But the applicant was working in Asansol region. It is admitted by the respondents that Shri R.N. Prasad has been transferred from Chandigarh region to Asansol region at his own request on family affairs and he has been transferred to Asansol region with a direction that his seniority will be the bottom seniority in the cadre of UDC and below the officers who are regularly appointed in the cadre of UDC of Asansol region, but the respondents in the written reply admitted that Shri R.N. Prasad, regular UDC in Chandigarh region has been transferred to Asansol region against the post of UDC fallen in examination quota and joined in the post of UDC on 21.8.89, on which date the applicant was holding the post of UDC on ad hoc basis. Therefore, Shri Prasad became senior to the applicant. It is also admitted by the respondents that one regular post of UDC in Asansol region arose due to regular promotion of one Shri R.N. Dwivedi as OS at Patna region and Shri R.N. Prasad has been accommodated against that post. It is also admitted by the respondents thereafter another vacancy arose in the Asansol region due to transfer of Shri D.P. Mukherjee to Calcutta Region from Asansol Region and accordingly, the applicant has been acted against the vacancy arose due to transfer of Shri D.P. Mukherjee and he has been regularised on the recommendation of the DPC held on 6.4.1990 with effect from 6.4.90. In view of the admitted position we find some anomaly in the matter of regularisation of service of Shri R.N. Prasad who has been transferred to Asansol from Chandigarh region as UDC. It is also admitted by the applicant that he did not exercise option for promotion to the post of UDC which falls vacant outside the region of Asansol. It is not understood why the respondents did not accommodated the applicant, Shri Sharma against the vacancy which had fallen vacant in Asansol region due to regular promotion of Shri R.N. Dwivedi despite the direction given by the Tribunal for consideration of the case of the applicant for regularisation by holding regular DPC. From the said admitted fact it is found that there was aregular vacancy at Asansol region in the cadre of UDC arose due to regular promotion of Shri R.N. Dwivedi as Office Superintendent at Patna region, but the applicant's case was not considered and Shri R.N. Prasad has been accommodated against that vacancy. It is not understood why the respondents accommodated Shri Prasad against that post or vacancy which occurred due to promotion of Shri R.N. Dwivedi since Shri R.N. Prasad already got promotion to the post of UDC in Chandigarh region prior to promotion of Shri R.N.Dwivedi as regular OS at Patna. It is admitted by the respondents that Shri R.N. Prasad has been transferred to Asansol region with his bottom seniority. So, it does not require to be absorbed against the post or vacancy which independently arose due to promotion of Shri R.N.Dwivedi. The respondents committed mistake by consuming that post by making accommodation of Shri R.N. Prasad against that post. So, timely DPC did not consider this fact and recommended the promotion of the applicant for promotion to the post of UDC on regular basis when substantive vacancy arose due to transfer of Shri D.P. Mukherjee from Asansol to Calcutta vide order dated 18.5.89, Annexure-II. Therefore, the applicant has acquired right to consideration for regularisation in the cadre of UDC in Asansol region when regular vacancy arose due to promotion of Shri R.N. Dwivedi as regular OS at Patna. It is found that without considering the case of promotion of the applicant against the vacancy arose due to promotion of Shri R.N. Dwivedi, the respondents accommodated Shri R.N. Prasad and put him in the seniority list maintained in the Asansol region above the applicant. We find no justification for accommodation of Shri R.N. Prasad against the substantive vacancy which arose due to promotion of Shri R.N. Dwivedi and therefore, such action is not sustainable. So, we are of the view that due to wrong action on the part of the respondents by way of absorption of Shri R.N. Prasad, UDC in the regular vacancy occurred in the Asansol Region, as mentioned above, the applicant has been denied the benefit of regularisation despite the fact that the Tribunal directed the respondents to consider the case of the regularisation of the applicant. It is admitted by the respondents that Shri R.N. Prasad was transferred to Asansol region as UDC with bottom seniority. But due to absorption of Shri R.N. Prasad the applicant has been denied the benefit of regularisation, though it is within the knowledge of the respondents that the applicant was holding the post of UDC on ad hoc basis from 3.7.82 and by that wrong action Shri R.N. Prasad became senior to him in the Asansol region.
7. It is found that the applicant did not implead Shri R.N. Prasad and Shri M.P. Mahato, UDC as necessary parties in this case, but claimed seniority over them. We find that it would be unjust to disturb their seniority without hearing them. We find that the applicant could have been regularised against the vacancy in which Shri R.N. Prasad, UDC has been absorbed against the examination quota. But that appointment has not been challenged by the applicant in this case. Since the applicant did not add the aforesaid Shri R.N. Prasad and Shri M.P. Mahato, UDC as party respondents in this case, therefore, we are not going to disturb the seniority of Shri Prasad and Shri Mahato.
8. In view of the aforesaid circumstances we are of the view that the applicant is not entitled to get regular promotion with effect from 3.7.82 as claimed in the application. At the same time we cannot direct the respondents to assign the seniority of the applicant in the grade of UDC above Shri R.N. Prasad and Shri M.P. Mahato, who opted for promotion in the Chandigarh Region prior to him who did not exercise option.
9. In. view of the aforesaid circumstances the application is liable to be dismissed for want of necessary party. Accordingly the application is dismissed awarding no costs.