R. Ganesan, Member (A)
1. The applicant working as Deputy Director All India Radio, Chennai has sought the following reliefs:
to call for the proceedings of the second respondent in its C. 18011/06/05-S1 (A) dated 25.8.2006 and quash the same and consequently direct the respondent to regularise the services of the applicant in the STS (Senior Time Scale) with effect from 31.12.1998 with all consequential and attendant benefits and pass such other order or orders as may be deemed fit.
2. The applicant who joined the service initially in Doordarshan Kendra as Script Writer on 1.7.1975 was recruited through Union Public Service Commission as Programme Executive vide order dated 28.8.1980. He was later promoted to Junior Time Scale (JTS for short) on ad hoc basis by order dated 14.6.1993 which was subsequently regularised by order dated 15.2.1999 with retrospective effect from the date of ad hoc promotion namely June, 1993.
3. Thereafter, the applicant was promoted to Senior Time Scale (STS for short) on ad hoc basis along with many others vide order dated 31.12.1998. According to the applicant, he expected that the promotion to STS would be regularised with effect from initial date of ad hoc promotion as several vacancies were available. However, the respondents issued order dated 17.3.2004 in which the applicant's promotion to STS was regularised with effect from 28.1.2004 instead of from the initial date of officiating in STS. Thus the applicant had to virtually fore go six years of continuous service in STS. On his representation dated 7.4.2004 and 15.2.2005 they were disposed of by order dated 28.2.2005 by the respondents who rejected them on the ground that a similar matter in O.A. No. 3107/03 filed by Programme Staff Association had been dismissed by the Principal Bench of this Tribunal and hence the applicant's claim cannot be entertained.
4. The applicant challenged the above order dated 28.2.2005 in this Tribunal in O.A. No. 403/2005 which was decided by the Tribunal in its order dated 3.5.2006 with the observations that the applicant's grievance was genuine and require to be properly addressed by the respondents in the light of the Hon'ble Supreme Court's order in Maharashtra Direct Recruit case 1990 (2) SLJ 40 (SC) : 1990 (2) SCC 715 and directed the respondents to consider his representation and pass a speaking order within 12 weeks. The applicant submitted another representation dated 12.5.2006 but he was given reply dated 25.8.2006 by the second respondent who rejected his representation on untenable grounds. None of the reasons which weighed with this Tribunal in giving the directions has been properly taken note of by the second respondent who appears to have been pre- determined to reject his representation.
5. The grounds adduced by the applicant in support of his claims are as under:
(a) A promotion in his case which has continued for about six years, though termed ad hoc, has to be treated as regular as per the judgment of the Hon'ble Supreme Court in several cases especially in the case of Maharashtra Direct Recruit Engineers' case, wherein the Hon'ble Supreme Court has held that ad hoc promotion if at all can be only for a very minimal period and continuance of the same beyond two to three years leads to the irresistible conclusion that the promotion is regular for all purposes.
(b) Instructions of the Govt. of India on ad hoc promotion clearly stipulates that the same has to be only for a barest minimum period and in exigencies where filling up a regular post can take considerable time which will in turn affect the administrative set up. Several vacancies in the STS cadre existed from 1998 and the respondents should have conducted DPC every year in accordance with the orders on the subject.
(c) The respondents have failed to appreciate the ratio of the order of this Tribunal in O.A. 403/2005 and misdirected themselves in not properly addressing the applicant's grievance.
(d) They made hair splinting distinction between ad hoc appointment and officiating appointment without properly understanding their true import. In keeping with the decisions of the Hon'ble Supreme Court time and again in such context wherein it has been observed that the meaning of the word in a particular situation is not determination or conclusive and use of terms like ad hoc, officiating, temporary etc., does not take away the right of a person to claim seniority and what is to be seen in the circumstances under which the said promotion was made. The applicant having been promoted by following the prescribed procedure, the promotion has to be termed as regular.
(e) The respondents taking the view that the delay in conducting the DPC was because of disassociation of UPSC initially is not the correct position as the DPC for STS does not involve UPSC and being a local DPC, it should have been held then and there.
(f) The respondents have been adopting different standards one for JTS wherein the regularisation was with reference from the date of ad hoc promotion and another for the STS where the regularisation is given about six years after the ad hoc promotion into STS. By the impugned order the applicant has to lose nearly six years of service which would affect his future promotion to higher grade and hence the O.A.
6. The respondents have replied denying the averments made in the O.A. They stated that as per the extant instructions of DOP&T regular promotions are always prospective from the date of validity of the panel or from the date of actual promotion whichever is later. It has been the consistent policy of the Govt. to treat a promotion as regular only when the same is after selection through normal procedure as per rules. Any extension of ad hoc appointment issued from time to time made clear that the appointment/ promotion was only on ad hoc basis and it would not confer any right or privilege for continued or regular appointment in the grade/cadre. It was also the condition that the officer will get automatically reverted to his respective feeder/parent grade after completion of the said ad hoc promotion.
7. Further, the Hon'ble Supreme Court of India has in UOI v. K.K. Vadhere and Ors. 1990 (1) SLJ 106 (SC) : 1989 Supp. (2) SCC 625 and UOI and Ors. v. Majji Jangammayya and Ors. 1977 SLJ 90 (SC) held that after a post becomes vacant for any reason, whatsoever, a promotion to that post should be from the date of promotion and not from the date of ad hoc promotion, or when the post became vacant, and promotion should be made prospectively and not retrospectively. The Apex Court in the matter of State of Orissa v. Dr. Piari Mohan Mishra held that mere continuous ad hoc service does not ripen into regular service to claim permanent or substantive status. The Apex Court in the matter of K. Madhavan v. UOI has also held that in non-holding of DPC meeting was not arbitrary or malafide, the employees concerned can have no grievance and the Govt. will not be bound to give retrospective promotion. Again in De. Surendra Sentwal v. State of J&K. (1996) 8 SCC 619 the Hon'ble Supreme Court held that even 13 years of service cannot entitle an ad hoc employee to claim regularisation. The applicant has wrongly drawn a parallel between his case and that of Direct Recruitment Class-U Engineering Officer's Association v. State of Maharashtra and Ors. 1990 (2) SLJ 40 (SC) and the Supreme Court has in fact ruled time and again that an ad hoc since even if followed by regular service does not establish automatic claim in favour of the Govt, servant for regular promotion retrospectively.
8. The representation of the applicant has been disposed of by the Department in pursuance of direction of this Tribunal in O.A. No. 403/2005 by the speaking order dated 25.8.2006. The order has been issued after detailed consultation with Ministry of I&B and Ministry of Law. The UPSC being the constitutional body cannot, in any way be forced by the Department to participate itself with the promotions in Prasar Bharathi, Consequent upon Prasar Bharathi became the autonomous body in 1997, the Commission disassociated itself from holding promotions for Prasar Bharathi posts and agreed for holding DPCs in Prasar Bharathi only after a direction from the Court. Thereafter the DPCs have been held regularly. No Court has found any fault till date with this action of the Department. The CAT Principal Bench New Delhi have, in fact, upheld the department's action in O.A. No. 3107/03 filed by the PSA seeking similar relief.
9. The respondents stated that a promotion given to the applicant in JTS was regularised with effect from 14.6.1993 the date of ad hoc promotion because of the review DPC held in pursuance of the implementation of the judgment of CAT PB dated 18.9.1997 in O.A. No. 958/97. In this case the regular promotions were actually made in 1994 itself. Hence the applicant cannot draw a parallel with this to the ad hoc promotion given in STS and seek regularisation from the date of ad hoc promotion in the higher grade. For these reasons they pleaded for the dismissal of the O.A.
10. We have heard the learned Counsel for the applicant and the Senior Panel Counsel Mr. B. Shanthakumar for the respondents and perused the relevant records carefully.
11. The learned Counsel for the applicant strenuously argued relying on the order of the Hon'ble Supreme Court in Direct Recruit Class II Engineering Officer's Association v. State of Maharashtra and Ors. (supra) and contended that the applicant's case is squarely covered by the said order. He also referred to the order of this Tribunal in O.A. No. 403/2005 wherein this Tribunal had, after discussing the merits of the applicant's case, directed the respondents to pass a speaking order within a stipulated time and as this Tribunal has observed in detail regarding the justification of the claim of the applicant. In such a background, the respondents issuing a speaking order rejecting the applicant's representation dated 12.5.2006 by the impugned order dated 25.8.2006 is clearly arbitrary and illegal. He added that there were clear vacancies when the applicant was initially promoted on ad hoc basis and without any valid reasons, the respondents failed to conduct DPC in time for which the applicant cannot be made to suffer by loss of service made in ad hoc promotion. The applicant having been regularly promoted in continuation of the ad hoc promotion without any break, the respondents ought to have given him regular promotion from the initial date of ad hoc promotion in keeping with the para 47B of Hon'ble Apex Court's order in Direct Recruit Class-U Engineering Officers' Association case. He also stated that in accordance with the recruitment rules, the DPC of STS is on without any involvement of UPSC and therefore the respondents cannot take the plea that because of their discussions with UPSC regarding its association with the DPC to be held in Prasar Bharathi there was delay in holding the DPC cannot be sustained. He also relied on the following decision of the Hon'ble Supreme Court in support of his claim
1. K. Madhavan and Anr. v. UOI and Ors. and batch .
2. Rudrakumar Sain and Ors. v. UOI and Ors. .
3. UOI and Ors. v. Majji Jagammayya and Ors. .
12. The learned Senior Counsel however, contested the applicant's claim on several counts. He relied on various provisions of the recruitment rules and submitted that the DPC has to be conducted in accordance with the provisions of the said rule and UPSC had to be associated with the DPC and as the same was not coming forth with the UPSC not wanting to be part of the DPC in Prasar Bharathi while there was continuous discussions and only after it was resolved the DPC was held, without any delay and regularly. As there were administrative exigencies because of which the DPC could not be held, the applicant cannot try to take advantage of unintended delay in holding the DPC.
13. Further, the applicant was not promoted on ad hoc basis after holding of the DPC and hence he cannot seek any relief as if he was regularly promoted to count his service from the date of ad hoc promotion. The seniority has been settled based on the ad hoc promotion regularised with effect from the date of issue in the impugned order and the applicant cannot try to destabilise the same by seeking regularisation of his services in STS from the date of ad hoc promotion in 1998. The learned Senior Counsel further argued that promotion to STS is by selection any promotion given ad hoc without holding DPC cannot have any merit for retrospective promotion. The order issued in 1998 was clearly worded that the promotion was only ad hoc and the applicant could be reverted and for these reasons the said order cannot give any protection of past services inadhoc position. He also added that the applicant who was promoted, though as ad hoc in 1998 and thus has been working in the higher grade and so he did not suffer any loss of emoluments or position and therefore he has nothing to lose by the impugned order which was issued duly after convening the DPC in accordance with extant orders. He stated that the order of this Tribunal in O.A. No. 403/2005 was duly considered by the respondents and the impugned order dated 25.8.2006 was issued after taking into account the legal position in respect of various contentions made by the applicant in his representation dated 12.5.2006. The said order being a detailed speaking order in keeping with the stated legal position, the applicant has no case to reopen the issue once again.
14. Having heard the rival contentions, the short question that arises is whether the claim of the applicant who was promoted onadhoc basis with effect from 31.12.1998 and who is seeking regularisation of his promotion with effect from the same date and not from 28.1.2004 as made out in the order dated 17.3.2004 is legally sustainable.
15. The various claims made by the applicant for regularisation of his promotion from the date of ad hoc promotion have been dealt with in O.A. No. 403/2005 dated 3.5.2006 as under:
5. The 3 grounds on the basis of which the applicant has distinguished the inapplicability of the orders of the Principal Bench in O.A. No. 3107/2003 have to be accepted in his favour. Further in view of the reliance placed on the Constitution Bench decision of the Hon'ble Supreme Court in what is popularly called as Direct Recruit Class II Engineering Officers' case has become substantially applicable to the case on hand for considering promotion of the applicant retrospectively with effect from 31.12.1998. However, on perusal of the additional reply filed by the Director General, All India Radio, the following two points emerges for consideration.
Promotion of STS is hermetically linked with promotion to JAG as the failure to hold JAG DPC first will not let the STS Officers to move upwards as these posts are required to be relevant for being filled up by their juniors awaiting promotion to STS. The respondents further state that the UPSC had disassociated itself from promotion/appointment in Prasar Bharathi when it became an autonomous body in 1987 and only after the Hon'ble Court's directions, the UPSC agreed to hold DPC for Prasar Bharathi posts and accordingly DPC was convened for promotions to JAG in 2003. Thereafter, the process for convening the DPCs for promotion to STS started and were held in 2004. The explanation given is absolutely plausible and acceptable from the point of view of holding the said DPCs belatedly but it does not answer the question as to why retrospective promotions, were not ordered in respect of the STS promotees. In our considered view, the respondents are required to go through the ratio laid down by the Constitution Bench of the Hon'ble Supreme Court in the case cited supra and take a view on the issue of according retrospective promotion to the applicant and persons similarly placed like him. As the decision of Constitution Bench of the Hon'ble Supreme Court would prevail, we have to gone into other case laws relied upon by the respondents in their reply.
6. In view of the above facts and circumstances of the case, we are of the considered view that it is an appropriate case to issue direction to the respondents to obtain a detailed representation from the applicant, inter alia, including the various grounds taken by him in this O.A. and also his further replies on the grounds taken by the respondents, consider the same in the light of the decision of the Hon'ble Supreme Court in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. (supra) and pass an appropriate order within a period of 12 weeks from the date of receipt of a copy of the representation from the applicant. The applicant is directed to submit his detailed representation to the respondent No. 4 within a period of four weeks from the date of receipt of a copy of this order.
7. The O.A. is disposed of accordingly with no order as to costs.
16. The respondents have been directed to issue a speaking order after considering the merits of the applicant's representation in the light of the observations of this Tribunal cited supra within the stipulated time and it is unfortunate that the opportunity given to the respondents has not been properly made use of by them when they issued the impugned order dated 25.8.2006 more or less restating their view points in the said O.A. and ignoring specific observations made by this Tribunal in the said order and so the respondents cannot take the plea regarding those aspects having been already settled by this Tribunal. We are unable to appreciate the distinction tried to be made by the respondents between officiating appointment and ad hoc appointment. As for the reference to other cases relied on by the respondents we find that the facts and circumstances differ while comparing with those of this cast. While declining the request of the applicant, the respondent also relied on the decision of the Hon'ble Supreme Court in K. Mahadevan and Anr. v. UOI and batch (supra) but they ignored the fact that the applicant's claim is based not only on the delay in holding DPC but also on other grounds such as availability of vacancies and also none else will be aggrieved by granting promotion from the original dale of ad hoc promotion as all others similarly placed are also entitled for such a treatment on par with the applicant. Therefore, we find that the respondents reasoning in the impugned order is not supported by law on all counts.
17. On the other hand, the order of the Hon'ble Supreme Court in Direct Recruit Class II Engineering Officers' Associations. State of Maharashtra and Ors. (supra) in Para 47B there is a clear direction which is squarely applicable to the facts and circumstances herein as under:
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 regularisation of his service in accordance with the rules the period of officiating service will be counted.
18. The ratio of this order should not have been given a go bye by the respondents when they issued the impugned order stating that this order of the Hon'ble Supreme Court would be applicable only for officiating promotion and not for ad hoc promotion an artificial distinction which is not tenable. In S.P. Gupta and Ors. v. State of J & K and Ors. 2000 (4) SLR 486, Their Lordships have observed that summarizing the position, we therefore, hold that the ad hoc/stop gap service of the promotees cannot be treated as nonest merely because PSC was not consulted in respect of continuance of ad hoc/stop gap service beyond six months. Such service is capable of being regularised under Rule 23 of the J&K (CC) Rules, 1956 and rectified with retrospective effect from the date of occurrence of a clear vacancy in the promotion quota subject to eligibility and other relevant factors." The Hon'ble Supreme Court in Santosh Kumar v. State of A.P. 2003 (3) SLJ 39 (SC) : 2003 (3) ATJ 551 had upheld the judgment of the Hon'ble High Court wherein it was held that "ad hoc service would also be counted for the purpose of seniority as the promotees had continued till the regularisation and the regularisation was against the quota meant for promotees and in considering the issue the Hon'ble Supreme Court had also taken into account that decision in Direct Recruit Class-U Engineering Officers' case which has been relied on by the applicant herein."
Further, the learned Counsel for the applicant relied on the order of the Hon'ble Supreme Court in R.K. Sain and Ors. v. UOI and Ors. to state that there is no hard and fast rule regarding the use of the terminology of officiating, stop gap, ad hoc with a specific annotation and we will reproduce the relevant portion of the order as under:
19. The meaning to be assigned to these terms while interpreting provisions of a service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then "stop gap". If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as "fortuitous" in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a "Stop gap" arrangement and appointment in the post as "ad hoc" appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the questions of inter se seniority of officers in the cadre.
19. Thus the distinction tried to be made by the respondents in their impugned order to deny the application of Para 47B of Hon'ble Supreme Court's order in Direct Recruit Class II Engineering Officers' case has no legal basis and we are of the considered view that after this Tribunal order in O.A. No. 403/2005 wherein all aspects of the applicant's case has been examined on merits, the applicant's promotion with effect from 31.12.1998 should have been considered by the respondents for regularisation from that date. In fact the order of this Tribunal has also observed giving such a benefit not only to the applicant but also to "persons similarly placed like him". The respondents paid no heed to these observations of the Tribunal, thus resulting in the applicant having to come in the second round of litigation which is an avoidable one.
20. The O.A. is, therefore, allowed with a direction to the respondents to promote the applicant with effect from 31.12.1998 in STS on a regular basis and issue necessary orders to that effect within a period of 8 weeks from the date of receipt of a copy of this order. No order as to costs.