Shivani Adhikari vs Indian Red Cross Society, (Nhq)

The applicant - Smt. Shivani Adhikari was appointed as Field Officer in Child Alive Project (CAP) under the Indian Red Cross Society (IRCS) on temporary basis vide Office Order dated 09.05.1989 on a consolidated emoluments of Rs.1800/- per month. Her services were terminable on one month's notice. Since the duration of the Project was limited, she was given the benefit of subsequent assignment to keep her in employment. She was transferred from CAP to CAPART Project on the same terms & conditions. Vide Office Order No.2 dated 12.01.1990 (Annexure A-3), the applicant along with others was placed in pay scale of Rs.1200-30-1560-EB-40-2040 w.e.f. 01.01.1990 and was made entitled for all other benefits as permissible to such other staff members in the Society. Subsequently, an Office Order No.2 was passed on 10.01.1991 by which the applicant along with several other project staff was placed on regular establishment of the Headquarter Secretariat to be governed by the rules and regulations as applicable to other regular employees. Since there were no regular post on which the staff was to be accommodated, it was only vide Office Order No.46 dated 30.11.1995, the applicant along with five other staff were absorbed against regular cadre of the Society as LDCs w.e.f. 01.12.1995 in the pay scale of Rs.950-20-1150-EB-25-1500 and placed on probation for a period of one year during which they would have to qualify the type test to have themselves confirmed against the regular vacancies. Subsequently, the applicant was asked to appear for type test but, vide her letter dated 15.10.2001, which is on record, she conveyed her willingness for type test but requested the deadline to be extended for 15 days as a special case. She cleared the type test in 2002 and her services were confirmed as LDC in 2005 w.e.f. 2002. Throughout the period when she was accommodated on various posts, including that of the LDC, her pay protection was ensured. Thus, though she was LDC, she was in the pay scale of UDC.

The applicant filed OA No.1146/2009 before this Tribunal seeking a direction to the respondents to continue her in the pay scale of 1200-30-1560-EB-40-2040 (UDC scale) and give her the benefit of regular and continuous service since 01.01.1990 in terms of their order dated 10.01.1991 and fix her pay after appointment as LDC as per order dated 30.11.1995, along with consequential benefits. The Tribunal allowed the OA vide order dated 08.01.2010. Aggrieved by the said order, the respondents challenged the same before the Hon'ble High Court of Delhi in WP(C) No.4722/2010 wherein the following order was passed:-

"6. We have heard counsel for the parties. While there is clarity on the fact that initially th respondent was appointed on ad hoc basis, in case the respondent was not to be absorbed or her services not to be were regularized, they would have been no purpose of office order dated 10.01.1991 but there is also no explanation as to why subsequent office order No.46 dated 30.11.1995 was issued. We expect the petitioner to look into the aspect while disposing the representation of the respondent as both the office orders cannot be ignored. Accordingly, the concluding para of the CAT is set aside. As agreed by the parties, representation of the respondent would now be decided on the above lines as has been observed by this Court. It is expected that petitioner would decide the representation within one month and thereafter a personal hearing will also be granted to the respondent and a speaking order would be passed.

In view of the above, the present writ petition along with pending applications are disposed of."

Against the above order, the applicant filed an application before the Hon'ble High Court of Delhi seeking restoration of the Writ Petition. However, she withdrew the said application in order to seek appropriate remedy by challenging the aforesaid order in accordance with law, including by approaching the Tribunal. Accordingly, on 08.03.2016, the said application was dismissed as not pressed.

In pursuance of the above orders of Hon'ble High Court of Delhi, the respondents-IRCS passed an order dated 15.10.2015 disposing of the representation dated 07.04.2008 received from the applicant. In this order, the stand of the respondents was reiterated and the request of the applicant was not acceded to. It was also recorded in the order that a personal hearing was given to the applicant during which she desired to give written submission. The applicant in the written submissions reiterated all the issues raised by her in the OA and in the counter filed before the Hon'ble High Court of Delhi. Relevant para 7 of the order dated 15.10.2015 is reproduced as under:-

"7. In terms of the directions given by the Hon'ble Delhi High Court in its order dated 3rd September, 2015, it is clarified that Smt. Shivani Adhikari was given the scale of pay w.e.f. 01.01.1990, but she was holding the post which was existing in the Project, and it was governed by the terms and conditions of the Project. She was given regular appointment against the post of LDC in the cadre of the Indian Red Cross Society when the term of the project as well as all the project posts had lapsed vide Office Order No.46 dated 30.11.1995 w.e.f. 01.12.1995. Smt. Shivani Adhikari accepted the terms and conditions of the post of LDC before her appointment as LDC. However, the pay drawn by Smt. Adhikari earlier against the project post was protected in the pay scale of the post of LDC. AS per the condition stipulated in the order dated 30.11.1995, she was required to qualify the typewriting test to get herself confirmed against the post of LDC. She qualified the typewriting test on 01.06.2002 and was accordingly confirmed as LDC from that date and her seniority in the cadre of LDC of IRCS, NHQ, was accordingly fixed. Thereafter she had also availed promotion to the next higher post of UDC from the cadre of LDC."

It is the contention of the applicant that in the year 1990, she was given regular pay scale of UDC, in 1991 her services were made permanent and she was placed on regular establishment of Headquarter Secretariat on probation for one year. Thereafter she was designated and appointed as Assistant Warden but in 1995, the respondent no.1 arbitrarily and without her consent decided to absorb her along with some other employees in regular cadre of the Society as LDC and was again put on probation for one year subject to passing of the type test. The applicant has also alleged discrimination by stating that Ms. Gargi Gosain and Sharmila Sarkar, who were similarly situated, were left out, and even her increment was stopped. She has further contended that though she was given the benefit of 1st ACP, she was denied the 2nd ACP without any justification and due to this discriminatory treatment, she approached the Tribunal in OA No.1146/2009 and subsequently the Hon'ble Delhi High Court vide WP(C) No.4722/2010.

Aggrieved by the inaction of the respondents, the applicant has now filed the present OA seeking the following reliefs:-

"a. That the order dated 15.10.2015 may be set aside and the services of the Applicant may be treated as regularized on regular pay and regular scale of pay of UDC, from 10.01.1991 and her pay may be fixed accordingly and she may be given all the consequential benefits including payment of differential arrears of her salary, seniority and other statutory benefits.

b. The respondents may be directed to grand 2nd ACP forthwith to the applicant counting her services from 1990.

c. Any other order may be passed which may be deemed fit in the interest of justice in the facts and circumstances of the present case."

The respondents have controverted the claims of the applicant and have taken the initial plea of the OA being barred by time. They have contended that the applicant was appointed as project staff and along with few other employees were taken on regular establishment of the Headquarter Secretariat w.e.f. 01.01.1990 in the pay scale of Rs.1200-2040 but without any change in the terms & conditions of their initial appointment. In other words, she and other such employees remained project staff. She was transferred to the Central Training Institute at Bahadurgarh vide Office Order No.7 dated 11.04.1991 but in the order her designation was erroneously/inadvertently shown as UDC though she was never appointed as UDC but was kept in the scale of UDC in order to give her pay protection. They have further contended that regularization can only be against a regular post. Through Office Order No.2 dated 10.01.1991 though the applicant along with few other employees was taken on regular establishment of Headquarter Secretariat w.e.f. 01.01.1990 but without any change in terms & conditions of the initial appointment, which clearly indicates that they remained as project employees. They have gone on to point out that the applicant along with five others was appointed as LDC vide Office Order No.46 dated 30.11.1995 with the condition that they would remain on probation for a period of one year and during which period she along with others would have to qualify the type test to have themselves confirmed against the regular vacancies. The applicant cleared the type test only in the year 2002. After her absorption in the cadre of LDC, she got promotion in the cadre of UDC. The respondents have denied that there was any compulsion for the applicant to appear in the type test, rather she gave her willingness in the post of LDC and qualified the type test though belatedly. The respondents have enclosed applicant's representation dated 01.02.2007 as Annexure R-1 wherein she has claimed that in the seniority list of LDCs, her name appears at S.No.23 whereas those appointed much later than her have been made senior to her and shown to have been given promotion, hampering her promotional avenues in December, 2000 and in future as well. She has further stated in the said representation that there are instances that certain LDCs, who have not even passed the type test, have been confirmed in their positions and given due seniority. Therefore, she has prayed for re-consideration of her claim pertaining to seniority. This clearly brings out that she willingly accepted her appointment as LDC w.e.f. 01.12.1995. The respondents have averred that the OA is thus barred by estoppel.

The respondents have further stated that till that point of time, the applicant did not represent to be made UDC. They have also stated that grant of 1st ACP to the applicant w.e.f. 03.01.2002 was a clear case of inadvertent mistake and when the matter was re-examined, necessary corrective action would be taken. They have denied any discrimination meted out to the applicant and have stated that the case of the applicant is different to that of Ms. Gargi Gosain and Mr. Navneet Sharma. Since they did not give their willingness to be absorbed against the regular post of LDC in IRCS, NHQ, they were not absorbed in the IRCS and they still hold isolated posts.

Heard Sh. Krishna Mohan, learned counsel for the applicant and Shri L.R. Khatana, learned counsel for the respondents.

The respondents have raised the point of limitation. However, since the applicant has been continuously raising various claims from time to time which have also been considered in various judicial fora, therefore, the instant OA cannot be treated to be barred by time.

It is an undisputed fact that the applicant along with others was recruited in a Project as Field Officer on ad hoc and temporary basis on a consolidated emolument of Rs.1800/- per month. Normally, when a project comes to an end, the appointment of such temporary and ad hoc project staff also comes to an end. However, in this case various project employees were given the benefit of employment in IRCS itself. The matter has been complicated by the stand of the respondent no.1 at different points of time, which is sometime not in accordance with rules/regulations/guidelines. Relevant portion of the Office Order No.2 dated 10.01.1991, issued by respondent no.1 pertaining to the applicant and others, is reproduced as under:-

"It has been decided to place them on the regular establishment of the Head quarter secretariat. They will therefore be governed by the Rules and Regulations of employment as applicable to other regular employees at the headquarters.

They will be on probation for one year w.e.f. 1.1.191. During the probationary period their services will be terminable without notice and without assigning any reason. If confirmed, after completion of the probationary period their services would be terminable on one month's notice on either side. In case they do not receive confirmation order, in writing, on the expiry of probationary period, their probationary period would be deemed to have been extended.

The services of the aforesaid employer would be transferable to any station in India."

There are two elements of this office order. The first is that there appears to be a decision to place them on regular establishment of Headquarter Secretariat to be governed by rules and regulations of the employment as applicable to other regular employees at the headquarters. It is true that any person can be taken on regular establishment but only if a regular post is available, which in this case does not appear to have been done nor was there any regular post. The post came up subsequently when the applicant along with other staff was offered the LDC post. Relevant portion of the Office Order No.46 dated 30.11.1995 reads as under:-

"The Secretary General has decided to absorb the following project staff against the regular cadre of the Society as Lower Division Clerks w.e.f. 1.12.1995 in the pay scale of Rs.950-20-1150-EB-25-1500. They will remain on probation for a period of one year. During this period they have to qualify the type test to have themselves confirmed against the regular vacancies:

Sh. Mohan Singh

Sh. A.K. Bansal

Kum.Tapti Sarkar

Smt. Gayatri Nayyar

Smt. Shibani Adhikari

Smt. Madhu Gurbani."

On perusal of this order, it emerges that this is the office order by which the applicant along with others have been absorbed against regular cadre of the Society as LDC with prospective effect i.e. 01.12.1995. They are to remain on probation for one year during which time they will have to qualify the type test to be confirmed against regular vacancies. In other words, confirmation will take place only after qualification of type test.

The second condition laid is that they would be on probation for one year w.e.f. 01.01.1991 and in case they do not receive confirmation order in writing on expiry of the probationary period, their probationary period would be deemed to have been extended, which means their services would continue to be terminable without notice and without assigning any reason. This order, therefore, cannot be treated as regularization of the concerned persons against regular posts along with other benefits and protection which are given to regular employees.

It is apparent from perusal of the applicant's representation dated 01.02.2007 that she has accepted her appointment as LDC but would like to be confirmed without having qualified the type test and given due seniority. Though in the OA no plea qua 'deemed confirmation' has been made, but during the course of arguments, learned counsel for the applicant has raised this issue and cited the decision of Hamdard Public School vs. Directorate of Education & Anr. [202 (2013) Delhi Law Times 111]. In the aforesaid decision, the Hon'ble High Court of Delhi has held that 'where no period of probation is prescribed by the statute, the same should be reasonable'. However, in the matter under consideration, the circumstances are different and the employee in question is a temporary and ad hoc project staff being absorbed on a regular post subject to fulfilment of certain qualifications after which the probation period comes to an end. Since the qualification of type test prescribed in the appointment/absorption letter itself was not fulfilled, there would be no question of ending the probation period and confirming the concerned employee. Further, the applicant vide representation dated 15.10.2001 herself asked for time to qualify the type test.

The respondents have cited the decision in State of Uttranchal & Anr. Vs. Pranitya Sinchai Avam Bandh Yogana Shramik Mahaparishad [2007 (12) SCC 483], wherein the Hon'ble Supreme Court held as under:-

"9. In Umadevi (3) case [2006 (4) SCC 1], the issue relating to regularization was examined at length. It was essential held that there was no question of any automatic regularization."

The applicant has stated that initially in the seniority list of UDC, her name appeared at serial no.27. Several seniority lists of LDC were circulated on 06.12.1995 and 19.11.1997 etc. wherein her name was shown at different position. Perusal of Annexure A-10, the so-called seniority list of UDCs reveals that it has no covering letter, no signature and there are cuttings in it. It is titled as 'Seniority list of UDC/Receptionist'. No credence can be placed on this list. Only two draft seniority lists of LDCs dated 06.12.1995 and 19.11.1997 have covering letters and they can be explained by the fact that normally draft seniority lists are circulated, objections are taken and then only final seniority lists are made out. Therefore, the applicant cannot gain any advantage from this point.

In the conspectus of things, the fact emerge that the applicant was ad hoc and temporary project staff. She was taken on the rolls of IRCS Headquarters but her regular promotion can only be treated against a regular post and that was the post of LDC to which she was appointed vide order dated 30.11.1995. Though she was offered the post of LDC, but due to pay protection she was given the scale of UDC, which was accepted by her. Though initially she asked for seniority without qualifying the type test, but subsequently asked for extension of time and after completion of type test, she was not only confirmed but promoted to the post of UDC. Therefore, the relief claimed of regularization as UDC from 10.01.1991 cannot be entertained.

Since the relief of grant of 2nd ACP was not raised by the applicant in her representation, the impugned order does not speak of it. However, the respondents in their counter affidavit have stated that grant of 2nd ACP to the applicant w.e.f. 03.01.2002, as pointed out by her, was a clear case of inadvertent mistake. The respondents have further stated the matter will be examined in the context of the averment made by the applicant and necessary corrective action will be taken in accordance with law and the principles of natural justice. Accordingly, the respondents are directed to take a decision on this issue in accordance with law within a period of 90 days from the date of receipt of certified copy of this order and pass a speaking and reasoned order.

With the above direction, the OA stands disposed of. There shall be no order as to costs.