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Cites 3 docs
Km. Neelima Misra vs Dr. Harinder Kaur Paintal And Ors on 21 March, 1990
Article 309 in The Constitution Of India 1949
Vimal Kumari vs The State Of Haryana & Ors on 4 February, 1998

User Queries
Delhi High Court
Ms. Poonam Sinha vs Union Of India (Uoi) And Ors. on 18 September, 2002
Author: S Sinha
Bench: S Sinha, A Sikri

JUDGMENT

S.B. Sinha, C.J.

1. This writ petition is directed against a judgment and order dated 07.12.1999 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter for the sake of brevity referred to as, 'the Tribunal') in O.A. No. 2325 of 1998 whereby and whereunder the Original Application filed by the respondent No. 3 herein claiming seniority was allowed.

2. The basic fact of the matter is not in dispute.

The petitioner and the respondent No. 3 herein pursuant to an advertisement issued by the respondent No. 2 for the posts of 'Data Entry Operator' applied therefore along with other eligible candidates. Both of them were selected by the Selection Board and in the select list, name of the respondent No. 3 was at serial No. 3, whereas that of the petitioner was at serial No. 1.

The petitioner herein was appointed on 01.01.1990. An offer for appointment of the respondent No. 3, however, was sent on 30.12.1987, Clause 2 whereof is in the following terms:-

"2. The conditions of the appointment are as follows:-

(1) This appointment is temporary and would not entitle you to make claim for permanent appointment.

(2) Till receiving qualification certificate in favor of candidates this appointment will be purely temporary and if the above certificate is not issued then the appointment would be cancelled. The candidate will necessarily have to give written promise in the enclosed form.

(3) This appointment could be terminated by any party i.e. by the appointing person or appointing authority by giving one month's notice without showing any reason. Even then, the appointment authority's power is saved in termination of the services of the appointed person either by giving one month's notice or making payment of salary and allowances in lieu of notice period immediately or upon expiry of the prescribed period mentioned in notice.

(4) Along with this appointment he is bound to do work in any part of India.

(5) The other service conditions will be governed by the relevant Rules and Orders applicable from time to time."

It is not in dispute that both the petitioner and the respondent No. 3 were above the prescribed age at the relevant time. Subject to fulfilllment of the conditions aforementioned, the respondent No. 3 was appointed in the initial pay-scale w.e.f. 05.01.1990 by an Order No. 044 dated 17.01.1990, which is in the following terms:-

"No. 3/8/89-EST.

GOVERNMENT OF INDIA

Department of Personnel and Training

Lal Bahadur Shastri National Academy of Administration, Mussoorie.

Dated : 17th January, 1990

OFFICER ORDER NO. 044

Shri Mohammad Aslam is appointed to the post of Data Entry Operator Grade 'B' in the Lal Bahadur Shastri National Academy of Administration, Mussoorie in the pay scale of Rs. 1350-3--1440-40-1800-EB-50-2200 at an initial pay of Rs. 1350-00 per month and other allowances as admissible under rule, with effect from the afternoon of 5th January, 1990. This appointment is purely temporary and on ad-hoc basis, and is subject to the terms and conditions already issued to him.

sd/-

(Anupam Kulshreshtha)

Deputy Director (Sr.)

3. On or about 17.01.1991, the Central Government in exercise of its power conferred upon it under the proviso appended to Article 309 of the Constitution of India made rules known as Lal Bahadur Shastri National Academy of Administration Data Entry Operator Grade 'B' Recruitment Rules (hereinafter for the sake of brevity referred to as, 'the said Rules').

Rule 4 of the said Rules provides for the manner in which inter-se seniority is to be determined, which reads thus:- "4. Inter-se seniority :- The inter-se seniority of persons holding the posts of Data Entry Operators Grade 'B' on the date of notification of these rules, shall be determined with reference to the date of their regular appointment to the respective posts."

Rule 6 of the said Rules reads thus:-

"6. Power to relax :- Where the Central Government is of the opinion that it is necessary of expedient so to do, it may by order, for reason to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons."

4. It appears that draft rules had been prepared prior to issuance of the said advertisement and relaxation of age of the petitioner as also the respondent No. 3 were made purported to be in terms thereof.

5. Relying on or on the basis of the said Rules, tentative gradation list was prepared on 16.07.1991 and the same was circulated inviting objections thereto from the concerned parties by 25.07.1991. In the said tentative gradation list, the name of the petitioner stood at serial No. 1 and that of the respondent No. 3 at serial No. 3 wherein their respective dates of appointments were shown as on 03.01.1990 and 05.01.1990 respectively. Both such appointments were shown to have been made on ad hoc basis. Upon consideration of the objections, as permanent seniority list was issued on 31.08.1992 wherein also the same position was maintained.

6. Only on 23.10.1997, the respondent No. 3 filed a representation before the respondent No. 3, through the Deputy Director, who by an order dated 03.03.1998 held that having regard to the merit list, the respondent No. 3 shall rank senior to the petitioner. The petitioner preferred an appeal thereagainst before the respondent No. 3. By an order dated 12.05.1998, the Appellate Authority held:-

"3. In the proposed RRs for the post of Data Entry Operator, the age limit proposed by the Academy was 18-23 years and, accordingly, the post was advertised and selection made on an ad hoc basis. The Government of India (DOPT) on the other hand, notified the RRs providing an 18-25 year range instead of 28 years. Both of them were above 25 years of age at the time of selection and, for Government Servants there was a further relaxation up to 40 years. Since Smt. Poonam Sinha was a permanent Government Servant before appointment as DEO and was within the age limit, she got the advantage of relaxation up to 40 years. Hence, at the time of selection, she fulfillled all the criteria whereas Shri. Mohd. Aslam was more than 25 years of age and he became eligible only on the issue of the DOPT's order dated 19th December, 1996 conveying the relaxation of age to him over 25 years.

4. In view of para 3, above, Smt. Poonam Sinha could have been confirmed at any time after the probation period was over, as she was eligible. However Shri. Mohd. Aslam became eligible for confirmation only after permission to relax the prescribed age limit was received from the DOPT. There is, therefore, enough substance in the argument advanced by Smt. Poonam Sinha that she should have been confirmed on expiry of 2 years of probation and would have automatically become senior to Shri. Mohd. Aslam.

5. In the light of the foregoing, I am satisfied that Smt. Poonam Sinha is to be treated as senior to Shri. Mohd. Aslam, and direct that the records be modified accordingly."

7. Questioning the aforesaid order, the respondent No. 3 filed the aforementioned Original Application before the learned Tribunal. According to the learned Tribunal, as at the relevant point of time the statutory rules were not in force and the inter-se seniority was governed by the Executive Instructions, the respondent No. 3 in terms thereof must be held to be senior to that of the petitioner.

8. Mr. Santosh Kumar, the learned counsel appearing on behalf of the petitioner, would raise two contentions in support of the present writ petition.

The learned counsel would first contend that having regard to the fact that the seniority list was finalized as far back as on 31.08.1992, the respondent No. 3 herein could not have made a representation after a lapse of more than 5 years. In the aforementioned premise, the learned counsel would contend that the learned Tribunal committed a manifest error insofar as it held that the Original Application was not barred by limitation. In any event, contends the learned counsel, having regard to the fact that inter-se seniority of the petitioner and respondent No. 3 were to be determined in terms of the statutory rules and, thus, the purported O.M. dated 03.07.1986 could not have been acted upon. The learned counsel in support of the aforesaid contentions relied upon Km. Neelima Misra v. Dr. Harinder Kaur Paintal and Ors. AIR 1990 SC 1407.

9. Mr. Rajiv Shakdar, the learned counsel appearing on behalf of the respondent Nos. 1 and 2, however, would submit that as at the relevant point of time, there did not exist any statutory rules, the aforesaid O.M. dated 03.07.1986 will prevail.

10. Dr. D.C. Vohra, the learned counsel appearing on behalf of the respondent No. 3, would contend that having regard to the fact that at the relevant point of time both the petitioner as also the respondent No. 3 were appointed on ad hoc basis, no question of raising objections as regards the seniority list would arise. In any event, the learned counsel would contend that as the order of regularization has been passed in 1997, a cause of action had arisen only thereafter.

11. Before embarking upon the question(s) raised in this writ petition, we may notice that the petitioner did not suffer from the age bar as she was already in employment of the respondent Nos. 1 and 2.

12. It, however, stands admitted that at the relevant point of time, the draft rules were in existence and an advertisement had been issued in terms thereof. The respondent No. 3 herein was not at all eligible for direct recruitment having regard to the age bar. He, therefore, was appointed on ad hoc basis only on the basic pay subject to filing of the said certificate.

13. From a letter dated 21.07.1995, it appears that a request for relaxation of age as regard the respondent No. 3 and one Shri Ashim Kumar Debnath was made, which is in the following terms:-

"Dated : 21st July, 1995

To

The Secretary to the Govt. of India

Ministry of Personnel, P.G. & Pension

Department of Personnel & Training

(Training Division)

Block No. 11, 2nd Floor,

CGO Complex, Lodhi Road,

New Delhi-110003.

(Kind attention : Shri Tarsem Singh, Under Secretary)

Subject: Recruitment Rules for the post of Data Entry Operator Grade "B"

Sir,

Kindly refer to your letter No. 13012 / 2 / 90-TIN / AIS - III dated 19.6.1995. A proposal to get notified the recruitment rules for the post of Data Entry Operator, Grade "B" was sent vide the Academy's letter No. 6/3/89-EST dated 12.10.1989 where in the prescribed age limit for the appointment to the post was 21 to 28 years.

2. A notice of vacancy was published in the Rojgar Samachar as well as in various newspapers through the DAVP on the basis of the proposed recruitment rule. The closing date for submitting application was 12.12.1989.

3. An examination / interview was held for appointment to the post of the Data Entry Operator, Grade "B" on 26.12.1989 on the basis of application received in response to the notice of vacancy. The following persons were appointed to the post of the Data Entry Operator, Grade "B" on purely temporary and ad-hoc basis as indicated against each on the basis of the interview:

1. Shri Mohd. Aslam 05.01.1990 (A.N.)

2. Smt. Poonam Sinha 03.01.1990

3. Shri Ashim Kumar Debnath 01.04.1991 (A.N.)

4. The prescribed age limit for the post of the Data Entry Operator Grade "B" was 21 to 28 years in the notice of vacancy as per the proposed recruitment rule. The age of the appointed persons as on the closing date for submitting applications was as follows: Sl. No.

Name

Date of  Birth

Age

1.

Shri. Mohd. Aslam

28.12.1963

25 years 11 months 14 days

2,

Smt. Poonam Sinha

4.2.1961

28 years 10 months 8 clays

3.

Shri   

Asim    Kumar

Debnath

5.1.1062

27 years 11 months 7 flays

5. Since Kumari Poonam Sinha was already in the government service, the maximum age limit for her was 40 years. As such, Smt. Poonam Sinha comes within the prescribed age limit.

6. S/Shri. Mohd. Aslam and Ashim Kumar Debnath were appointed through direct recruitment and both of them were below 28 years of age at the time \of recruitment according in the proposed recruitment rules and their appointments were approved by the Selection Committee. Hence, both of them were appointed to the post of the Data Entry Operator Grade "B".

7. The age limit for appointment to the post of the Data Entry Operator is 18 to 25 years as per the recruitment rules received from the DOPT Along with their letter dated 19.6.1995. As such, the age of S/Shri. Mohd. Aslam and Asiam Kumar Debnath exceed by 11 months and 14 days and 2 years 11 months and 7 days respectively as per the notified recruitment rules as on the closing date for submitting applications. Therefore, we are not in a position to give them regular appointment to the post of the Data Entry Operator Grade "B". However, both the officials have so far completed more than 5 1/2 years and 4 1/2 years ad hoc service respectively.

8. Since the procedure for filling up these posts was completed on the basis of the proposed recruitment rules and they fulfillled the condition of maximum age limit that was 21 to 28 years on closing date for submitting applications. You are requested to keep 28 years prescribed age limit for appointment to the post of the Data Entry Operator Grade "B" according to the proposed recruitment rules and to get the amendments notified so that both of the officials could be given regular appointment to the post.

9. In case, it is not possible to amend the maximum age limit prescribed in the notified recruitment rules, kindly give relaxation up to the age of 28 years to both the officials so that these appointment could be regularized.

Yours faithfully,

Sd/-

(Padamvir Singh)

Deputy Director Senior (Estt.)"

Such relaxation of age was granted by the Central Government only on 19.12.1996, which is as follows:-

"Subject : Recruitment Rules for the Recruitment of DATA ENTRY OPERAtor-Regarding.

I am directed to refer to your letter No. 6/1/95-Estt. dated 9.5.1996 on the above mentioned subject and to say that the proposal has been considered and agree to the relaxation of age to S/Shri Mohammad Aslam and Asim Kumar Devnath who were below 28 years and not to Smt. Poonam Sinha who was more than 10 months overaged even w.r.t. the 28 years mentioned in the advertisement.

Yours faithfully,

sd/-

(RARSEM SINGH)

UNDER SECRETARY

TO THE GOVT OF INDIA"

There, thus, cannot be any doubt whatsoever that advertisement and appointment had been made in terms of the said draft rules.

14. It is now a well-settled principle of law that if certain actions are taken in terms of the said draft rules and the said draft rules are approved within a reasonable time, an action on the basis thereof would be valid. Having regard to the fact that the parties were appointed in terms of the said draft rules, inter-se seniority shall be governed thereby.

15. In Vimal Kumari v. State of Haryana and Ors. (1988) 4 SCC 114, the Apex Court has clearly held that if the draft rules are intended to be notified in the near future, they can be followed in the interregnum to meet emergent situations.

16. The matter can be considered from another angle.

The aforesaid O.M. dated 03.07.1986 or the recruitment rules of 1991 do not envisage relaxation of age bar, which limit was fixed by reason of the recruitment rules in the year 1992 as at the point of time when recruitment of the respondent No. 3 was made, he was over-aged. He, therefore, was not eligible for appointment. From a letter dated 21.07.1995, a request was made to relax the age limit up to 28 years, which was beyond the purview of the said Rules. Thus, in the event it is held that the Central Government had no jurisdiction to relax the age limit, the appointment of the respondent No. 3 would be invalid. The learned Tribunal unfortunately had not considered the matter from this angle and came to the erroneous decision.

17. Furthermore, it is now a well-settled principle of law that normally a settled position as regards seniority should not be unsettled and, thus, even assuming that the said purported O.M. dated 03.07.1986 was in force at the relevant point of time, the seniority as was determined in the year 1991 should not have been unsettled in 1998.

18. Submission of Dr. Vohra to the effect that as relaxation of age was made only in the year 1996, such a question could be raised, is stated to be rejected.

19. As indicated hereinbefore, a tentative gradation list was published and objections thereto were sought for. Even if it be presumed that the respondent No. 3 has filed objections thereto, the same must have been over-ruled. In any event, as the final seniority list had been published 31.08.1992, it was not proper to unsettle the same after a period of more than 5 years. The original application filed by the respondent No. 3 on the said ground should not have been entertained.

20. For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. This writ petition is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.