Judgment:
1. Shri K.C. Vyas, R.G. Arora and O.S. Sisodia have preferred this joint Original Application under Section 19 of A T Act, 1985 and have prayed for the following reliefs: (a) by an appropriate writ, order or direction respondents may be directed to allow the same relief as have been extended to identical circumstances persons in view of the judgment dated 19.09.2002 in O.A. No. 257/2001, Shri K.P. Bissa and Ors. v. UOI and Ors. and judgment dated 09 July, 1993 in O.A. No. 3/89 Dilip Kumar and Ors.
v. UOI and Ors. and judgment dated 21. Oct. 1994 in O.A. No. 838/89 Asha Vadhvani v. UOI and Ors. and the applicants also be regularised from the date of their initial entry into service with all consequential benefits.
(b) Any other relief which is found just and proper, may be passed in favour of - the applicants in the interest of justice.
2. We have heard elaborate arguments advanced at the bar by all the learned Counsel representing the contesting parties and also perused the pleadings as well records of this case.
3. The factual background of this case may be succinctly summarised in few words. All the applicants were initially appointed to the post of Clerk Gr.II in the pay scale of Rs. 260 400 (known as C.G-II) on 29.08.79, 08.08.80 and 06.12.80 respectively, on ad hoc basis. Their names were sponsored through the employment exchange and a duly constituted selection committee held the selection wherein all the applicants were found successful. Thereafter, they were appointed onad hoc basis as mentioned above. As per the Recruitment Rules, the recruitment for the post of CG II is to be done through the Staff Selection Commission (SSC for short). The vacancies are intimated to the SSC nomination of qualified candidates. In the instant case the SSC could not provide the qualified candidates and some persons including the applicant were appointed on ad hoc basis with the approval of SSC in order to run the stations smoothly. The appointment letters contain specific riders/ conditions namely, one cannot be appointed on regular basis till his name is sponsored by SSC, can be terminated without notice or disclosing reasons, will not confer any right for regular appointment, ad hoc period shall not count for seniority etc.
Subsequently they were subjected to a special examination conducted by the SSC in the year 1982/1983 for the post of CG II in which all the applicants qualified. They were therefore regularised as CG. II with effect from 21.04.82,22.08.82 and 30.06.1983 respectively. Their seniority was also fixed as per the directions of SSC/DOP & AR. They have been further promoted to the post of CG. I/UDC in the pay scale of Rs. 1200-2040 with effect from 31.07.85,17.06.89 and 30.07.90, respectively. The matter relating to regularisation on the post of CG II with effect from the date of initial entry was taken up by the respondent No. 4 to the respondent No. 3 on the basis of the regularisation in respect of other similarly situated persons who filed the cases before this very Bench of the Tribunal, but no decision has been taken. Numerous grounds have been enumerated which we shall examine in the latter part of this order.
4. As regards the variances in facts, the official respondents as well as the private respondents have taken certain preliminary objections in their replies. One of the preliminary objections is that this Original Application is time barred in as much as the applicants were regularised about two decades back and they did not represent at any time. They have already been promoted to the next higher grade and if the ad hoc period is treated as regular several review DPCs may have to be conducted as the entire seniority list will have to be revised. It may open the flood gates for persons adversely affected. The applicants are now estopped from claiming regularisation from the date of their entry since they have not made any specific challenge soon after their ad hoc appointment was regularised. The facts of cases of Shri D K Jain, Radha Mohan and Asha Vadwani are different in nature and there is no question of any discrimination. It is averred in the reply of private respondents that respondent No. 5 was directly recruited as CG-II/LDC dated 18.3.1981 on probation after passing the requisite examination conducted by SSC and has been assigned consequent seniority and other benefits. If the applicants in this O.A. are given the benefits of their ad hoc service, they may become senior to the private respondents having a march over the regular and substantive appointees.
5. The learned Counsel for the applicants has vociferously submitted that the applicants are similarly situated persons to those who have gone into litigation and enjoyed the due benefits but the applicants have not been granted the same. They have been visited with hostile discrimination and their action is infraction of Article 14 of the Constitution. After due selection, they were appointed to the post of CG-II on ad hoc basis which was followed by regularisation on the same post without any interruption. They are entitled to count the period of their ad hoc service towards their seniority. As regards the delay, he has submitted that similarly situated persons have been granted the said benefits only vide order dated 04.10.2004, giving rise to a cause of action and immediately thereafter this O.A. has been filed on dated 31.3.2005. The same is very much within limitation. Further he has cited numerous judgments in support of his contentions relating to the limitation as well as merits of this case, which we shall deal with in the later part of this order. He has next contended that limitation would not come in the way since the similarly situated persons have already enjoyed the due benefits and on the same principles the applicants should also be extended the same. As a matter of fact the respondents should have extended the due benefits to the applicants in particular and other similarly situated persons in general without dragging to the Court of law. This Court made a specific query as to when for the first time the applicants took up their matter with the respondents. No satisfactory reply was forthcoming and he only referred to certain internal/official correspondences amongst the respondents.
6. Per contra, the learned Counsel for the official and private respondents have reiterated the grounds of defence as set out in their respective replies. They have stressed hard on the preliminary objection of limitation. It was also submitted that the applicants have not filed any application for condonation of delay despite the fact that the basic claim relates to the year 1983 and this O.A. is filed on 31.03.2005. They very well knew the conditions of their appointment, i.e. the ad hoc appointment will not count for seniority and also will not confer any right to hold the post. They can get the regular appointment only after their names are sponsored by the SSC. Soon after clearing the requisite examination conducted by the SSC they have rightly been given regular appointment and the seniority thereof. The orders of their regular appointment from a prospective date have not been challenged. The applicants have enjoyed numerous benefits on the basis of the same including the next promotion. The position of other candidates especially that of the direct recruits was also settled at the relevant time. The grant of relief to the applicants would result in unsettling the settled position of number of persons who are not before this Court and their seniority and other service conditions shall be adversely affected without having their say in the matter.
7. Before adverting to the factual and legal aspect of this case, we would examine the preliminary objection relating to the limitation.
Admittedly, the basic claim of the applicants is for counting their period of their ad hoc service from 1979/1980 to 1982/1983 on the post CGII towards seniority as well as for other consequential benefits, on their regularisation i.e. by pre-poning their date of regularisation to the date of their initial appointment as ad hoc. Therefore the initial cause of action to the applicants had arisen in the year 1982/1983.
Admittedly, no representation has ever been filed by them in regard to the same, therefore the Original Application ought to have been filed in the year 1983/1984, but the same has been filed on 31.03.2005. Thus as per Section 21 of the A.T. Act, 1985, there is a delay of over two decades in filing of the Original Application. Admittedly, no application for condonation of the delay in filing this O.A. has been filed.
8. As regards the judgments cited on behalf of the applicants relating to grant of benefits to them on the basis of the benefits granted by this bench of the Tribunal to similarly situated persons is concerned, the position of various such decisions is as under: 1. O.A. No. 838/89 dated 21.10.1994, Asha Vadhwani v. UOI and Ors.
The case was for seeking regularisation from the date of their initial appointments i.e. date of ad hoc appointment. Reliance was placed on the judgments of the Apex Court in case of State of Haryana and Ors. v. Piara Singh and Ors. 1992 SCC (L&S) 825 and H.C. Putta Swamy v. Chief Justice of Karnataka High Court . This bench of the Tribunal directed to consider their regularisation on the post of CG-II from the date of their initial appointments. Both the said judgments of Apex Court have been impliedly overruled by a constitution bench judgment of the Hon'ble Supreme Court in case of Secretary to State of Karnataka and Ors. v. Umadevi and Ors.
directions clearly run counter to the constitutional scheme. Even in para 50 of the decision in case of State of Haryana and Ors. v. Piara Singh and Ors. provides that if and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be. Therefore, the decision in Asha Vadhwani is to be taken as per incuriam would not be a precedent.
2. O.A. No, 3/89 Dilip Kumar v. UOI and Ors. dt. 9.7.93 - Termination - for making a way for direct recruit - Principles of natural justice not followed hence order quashed. The said case was totally in different content and decision is not even remotely connected to the instant case. Hence it is of no help to the case of applicants.
3. K.P. Bissa and Ors. v. Union of India and Ors. passed on dated 19.9.2002 in O.A. No. 257/2001- The prayer was for grant of same relief which were extended to identically circumstanced person in view of judgments in Dilip Kumars. UOI and Ors. and Asha Vadhwani v. UOI and Ors. The respondents were directed to consider the case of applicants therein for regularisation from the date of their initial appointments. This decision also meets with the same fate as the decision in case of Asha Vadhwani supra.
4. (1988) 6 ATC 609 (CAT) - Laxman Dass v. UOI and Ors.
-Limitation-condonation of delay - applicant waiting for outcome of a case and then submitting a representation to the office - Meanwhile limitation period expired - held circumstances justified condonation of delay. Firstly, in the instant case there is no application for condonation of delay where the principles laid down in the said case can be applied. Secondly, we take judicial of notice of a decision of Hon'ble Supreme Court in the case of State of Karnataka and Ors. v. S.M. Kotrayya and Ors. . In that case the respondents woke up to claim the relief that was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay.
Therefore, the State approached Apex Court and Their Lordships of Supreme Court after considering the matter observed as under: Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in Sub-section (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August, 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all what was required of them to explain under Sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under Sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay.
In the instant case, even the case of Asha Vadhwani supra came to be decided on dated 21.10.1994, but the applicants did not react and filed this O. A. only on dated 24.12.2004. In view of the above proposition law, though no application for condonation of delay has been filed in this case and even if there had been any application for condonation of delay, the same would have met with a dismal failure.
9. The net result is that this 0. A. is not within limitation as per Section 21 of AT Act, 1985 and question of condoning of the delay does not arise since there is no application to this effect. Now we will advert to the question that if the O.A. is not within the limitation, what should be the fate of this case? We may point out that this issue does not need elaborate discussion, since the same has been settled by the Apex Court in the case of Ramesh Chand Sharma v. Udham Singh Kamal 2000(2) SLJ 89 (SC) : 2000(1) ATJ 178 (SC), wherein, Their Lordships have held that the Tribunal was wrong in adjudicating the case relating to promotion on merits once the very O.A. was not within the limitation and the delay was not condoned. It has been categorically held that unless and until the Original Application is found to be within the limitation or the delay in filing of it is condoned, the Tribunal would not adjudicate the matter on merits. Therefore, the very O.A. cannot be sustained and we are not required to adjudicate this case on merits.
10. However, keeping view that vital issues of seminal significance are involved in this case, we would like to adjudicate this case on merits also. Primarily two major issues are involved, namely (1). Whether the ad hoc service rendered by the applicants prior to their regular appointment after passing the examination conducted by SSC, should be counted for seniority etc. and (2). If the benefits extended to certain persons are not extended to the similarly situated persons, will it tantamount to discrimination? Admittedly, the post of CG-II is required to be filled in by SSC as per recruitment rules. The applicants were initially appointed on ad hoc basis after subjecting them to test at departmental level during the year 1979-80. Their names were sponsored through employment exchange.
It was specifically mentioned in their appointment letters that they had no vested right to hold the post as well as the ad hoc appointment shall not count for seniority. Steps were taken immediately to arrange for special examination conducted by SSC and after qualifying the same; all the applicants were appointed on regular basis by putting them on probation for two years which they completed satisfactorily.
Thereafter, they were extended the due benefits of further promotions by taking date of their regular appointment as date of initial appointment (i.e. without taking the ad hoc service into account). The complete position was acceptable to them without any demur. They seem to have become wiser only when some official correspondences were exchanged between various authorities and also from some orders passed in respect of persons who went into litigations. When the applicants were holding the post of CG-II on ad hoc basis, some persons like private respondents were appointed on regular basis after qualifying the examination conducted by SSC in the earlier selection to that of applicants and have been enjoying due benefits according to date of their regular appointments and also placed above the applicants in the seniority lists ever since their appointments.
11. Now we would advert to the legal facet of the issue. The law on this point is well settled now. The regularisation should normally be from a prospective date and that too keeping in view the vacancy position and reservation roster. The regularisation can be made only in accordance with a specific scheme. In the instant case there was no scheme of regularization as such and the word regularization used is a misnomer and the respondents rightly used the word xyz presently working on ad hoc basis is appointed in the temporary officiating capacity on regular basis to the post of CG-II' w.e.f. (date of passing the test conducted by SSC). It is thus not a case of regularization at all. The Apex Court in a constitution Bench judgment in case of Secretary to State of Karnataka and Ors. v. Umadevi and Ors.
, have settled the law on regularization. It has been held that any appointments made on contract, ad hoc, casual, for fixed term basis etc. i.e. de hors of the rules, cannot be regularised. The ad hoc service, rendered on appointment de hors of the rules, cannot count for seniority. Otherwise also one selected earlier shall rank senior to the one selected later, is the general rule. We also find support of this proposition of law from the verdicts of Apex Court mentioned in the succeeding paras.In Direct Recruit Class II Engineering Officers Association v.State of Maharashtra and Ors. , the Constitution Bench 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 law was summed up in the form of eleven propositions. It is sufficient to refer to the first one of them, which is in the following terms: (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 stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
13. We also find support of the same from a very recent decision of Apex Court in case of Mohammed Israils and Ors. v. State of West Bengal and Ors. 2002(3) SLJ 80 (SC) wherein Their Lordships have held that the service rendered on ad hoc basis which was subject to approval by the Public Service Commission can not count for seniority till such approval is given. In that case the promotion was made on ad hoc basis for six months in 1980 subject to approval of Public Service Commission but PSC approved only in the year 1988. It was held that ad hoc promotion was against rules so any service prior to 1988 cannot count as regular one and therefore the same cannot count for seniority. In other words one can get seniority only from the date he fulfils all the eligibility conditions.
In case of State of Haryana and Ors. v. Piara Singh and Ors. 1992(3) SLJ 34 (SC) : 1992 SCC (L&S) 825 Para 50 (though overruled on other points as indicated above), it has been laid down that if and when such ad hoc/casual labour is regularized, he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
14. We may assert that this bench of the Tribunal in cases cited by the learned Counsel for the applicants, did not lay down any principle for counting the ad hoc period of service towards seniority or to make them regular from the date of ad hoc appointment and whatever benefits were extended to certain persons, were extended by the respondents themselves. If at all any law was laid down, it was per incuriam as explained above while dealing the point of limitation with reference to the case of Asha Vadhwani supra. Therefore, the first issue is answered in negative.
15. Now turning to the second issue i.e. if the benefits extended to certain persons are not extended to the similarly situated persons, will it tantamount to discrimination? The principles of law of discrimination has been lucidly laid down by the Apex Court in case of National Institute of Technology Jamshedpur and Ors. v. Chandra Shekhar Chaudhary 2006(8) Supreme 842, and contents of relevant paras are reproduced as under:In State of Haryana and Ors. v. Ram Kumar Mann , this Court observed: The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstances without any rational basis or relationship in the behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them i.e. benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can similarly circumstances persons claim equality under Section 14 for Reinstatement? The answer is obviously "No".
10. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right enforce the wrong order and claim parity or equality. Two wrongs can never make a right". [See: State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. (2006) 9 SCC 94, Vikrama Sharma Shetty v. State of Maharashtra and Ors.
; South Eastern Coalfields Ltd. v. Prem Kumar 16. Applying the aforesaid proposition of law, we are not persuaded that the applicants have been able to show any enforceable right in their favour. Therefore, there has been no infraction of Article 14 of the constitution in the case of the applicants. The cases cited i.e.
Miss Shirely S. Chauhan and Ors. v. Union of India and Ors.
- State of Karnataka and Ors. v. C. Lalita (B) (F), - Union of India and Anr. v. P. Sathi Kumarana Nair and Ors. (2004) 3 ATJ 255 (CAT); Man Singh v. Union of India and Ors. 1985(2) SLR 248 (SC); Inder Pal Yadav and Ors. v. Union of India and Ors. DBC Spl. Appeal No. 90/2004; Dr. Sneh Saiwal v. State of Rajasthan, decided on 01.06.2004; Kamaljeet Singh v. UOI and Ors.
decided by Jodhpur Bench of the Tribunal in O.A. No. 221/2004 dated 5.9.2006 and relied upon on behalf of the applicants are of no help to them. The second issue is also decided in negative and against the applicants.
17. Looking the matter from yet another angle, even as per the theme of similarly situated persons, one cannot get any benefit at a belated stage, of a judgment which lays down the principle of law and this proposition has been propounded by the Apex Court in case of Chairman, U.P. Jal Nigam and Anr. v. Jaswant Singh and Anr. Appeal (Civil) 4790 of 2006 decided on dated 10.11.2006, .
In view of the statement of law as summarized above, the respondents are guilty since the respondents has acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent.
Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted.
18. In view of what has been said and discussed above and the legal position crystallised, we reach to an irresistible conclusion that this Original Application is hit by law of limitation as well as devoid of any merit or substance. The same stands dismissed, accordingly.
However, all the parties are directed to bear their respective costs.