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Judgment
O R D E R
Per Ms. Urmita Dutta (Sen), Judicial Member:
The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs:-
“(A)A declaration be made declaring the impugned Roster updated on 28.02.2013 (Annexure A-17) as illegal being contrary to rules.
(B)An Order be passed quashing the impugned Order No. 1356 dated 18.02.2015 (Annexure A-22) and Memo dated 08.12.2014 (Annexure A-21).
(C)An Order be passed quashing the Order No. 704 dated 07.10.2006 (Annexure A-12) and to direct respondent authority to re-fix his pay in post of Lab. Technician treating the period as regular with effect from 30.09.2006 to 14.11.2007, the date on which regular promotion was granted.
OR
(D)An Order be passed directing the respondent authority to grant the applicant the benefit of the scale of pay of Rs. 4000-6000/- notionally from the date of appointment and actually from the date of the issue of the Order in terms of Order dated 29.10.2010 (Annexure A-18) as granted to other Lab. Attendants and to further grant 1 financial upgradation under ACP Scheme with effect from 09.08.1999 and, consequent, thereto to refix his pay on promotion to the post of Lab. Technician.
(E)An Order be passed directing the respondent authority to release all consequential benefits after taking action either in terms of Prayers (A) & (B) or prayer (C) including the arrears of salary with interest.
(F)Cost and incidentals to this application.”
The applicant is presently working as Laboratory Technician in the establishment of Dr. B.R. Ambedkar Institute of Technology (erstwhile known as Dr. B.R. Ambedkar Govt. Polytechnic), Phargaon, Sri Vijaya Puram.
The applicant was initially appointed as Laboratory Attendant Gr. ‘D’ against the existing vacancy on temporary basis in the scale of pay of Rs. 750-12-870-EB-14-940 vide Order dated 02.02.1987 and was subsequently confirmed in the post of Laboratory Attendant w.e.f. 02.02.1992 vide Order dated 11.06.1998.
Thereafter, the applicant states that by letter dated 01.04.1995, the Principal, Dr. B.R. Ambedkar Polytechnic College invited bio-data from willing candidates possessing requisite qualification and experience indicated in the said letter from other departments for filling up of one post of Laboratory Technician in the scale of pay of Rs. 1400-2300 on deputation basis. Since the applicant possessed the requisite qualification and experience, he submitted an application through proper channel which was duly recommended and forwarded by the authorities. It is the precise contention of the applicant that in the notification, nowhere it was mentioned that the post was reserved for Scheduled Tribe candidate. However, to his utter surprise, he found that in the appointment Order his appointment to the said post of Lab. Technician has been made on adhoc basis against the post reserved for ST category for a period of three months in the scale of pay of Rs. 1400-40-EB-1800-EB-50-2300 which was, subsequent, revised to Rs. 5000-150-8000 upon implementation of the Fifth Pay Commission w.e.f. 01.01.1996.
The applicant further states that pursuant to his appointment to the post of Lab. Technician, he joined the post on 13.06.1995 and his adhoc appointment was extended from time to time till 30.09.2006 and, therefore, the respondent authorities had voluntarily allowed him to continue in service for more than 10 years without any break against the said duly sanctioned post without any interim protection obtained from any Court/Tribunal and thus he claims that his service ought to be regularized in the post of Lab. Technician in terms of Para 53 of Umadevi’s case. His pay was also fixed as per the recommendations of the Sixth Pay Commission w.e.f. 01.07.2006.
Further, nine (09) posts of Laboratory Technician were created vide Order No. 1959 and also one (01) post vide Order No. 874 dated 20.02.1991, so in total, ten (10) posts of Laboratory Technician by the administration and out of which eight (08) regular appointments were made and against one (01) of the remaining two posts, the applicant was appointed on adhoc basis vide Order dated 13.06.1995 and the residual one (01) post still remained vacant.
On 02.07.1997, the post based roster came into force. The applicant claims that even for the sake of argument if it is accepted that his appointment was made against reserved post after 02.07.1997, no recruitment for SC/ST/OBC was carried forward and as such the continuation of the applicant after 1997 cannot be terms as against reserved ST post. Even, 04 more posts of Laboratory Technician were created vide Order dated 26.03.1999 enhancing the total cadre strength of Laboratory Technician to fourteen (14). Later on, vacancy-based rosters were replaced by post based rosters w.e.f. 02.07.1997 and no recruitment in respect of ST, SC or OBC was brought forward and in view of this no post reserved previously prior to 02.07.1997 for ST could have been carried forward and therefore, the his appointment on adhoc basis cannot be treated as against the reserved ST post after 02.07.1997 even if it was so prior to the said date.
The A&N Administration vide notification dated 16.12.2005 had published an Extra Ordinary Andaman and Nicobar Gazette, the Hon’ble Lt. Governor, Andaman and Nicobar Islands made 38% reservation in jobs/services under the A&N Administration for other Backward Classes of UT of A&N Islands in addition to the existing 12% reservation in favour of Scheduled Tribes of these Islands.
The Recruitment Rules for the post of Lab. Technician were notified vide Gazette Notification dated 03.05.2006 but from the said Rule, it does not appear as to whether same has been notified in supersession of any previous rules or not, implying thereby that almost for about 15 years from the date of creation of post of Laboratory Technician, the respondent authorities did not frame any rules.
The applicant claims that the Recruitment Rules notified during the year 03.05.2006, prescribed two modes of recruitment to the post of Laboratory Technician which is as under:-
15% by promotion, falling which by direct recruitment;
85% by direct recruitment.
The applicant states that in the cadre of Lab. Technician consisting of 14 posts as on 03.05.2006, the respondent authorities before undertaking the exercise of recruitment either by promotion or direct recruitment, ought to have prepared two separate posts i.e. one for the promotion quota i.e. two posts (15% of 14 = 2.1) and other for direct recruitment quota i.e. 12 posts (85% of 14 = 11.9), however, no such separate roster was prepared as mandated by the Rules.
As per information obtained under RTI, the respondent authorities maintained a single roster and the 14th post was identified for promotees, which is not permissible when there existed two sources of recruitment. Since, the number of posts available under promotion quota as well as under direct recruitment quota were less than 13, the respondent authorities ought to have followed “L” pattern roster but they have acted in contrary to all the rules of reservation as well as rota quota rules. The information provided to the applicant under RTI Act on 07.04.2007 reveals that after 13.05.1995 the 10th post was filled up without advertising the post by appointing one, Shri Habib Ahmed vide Order dated 06.09.2009 ignoring his legitimate claim. Further, under Direct Recruitment quota, four more persons were recruited and appointed vide Order dated 06.09.2006 knowing fully well that out of the existing cadre strength of 14, the two posts are for promotees whereas the 12 are for Direct Recruits. No explanation has been provided as to why all along the steps could not be taken to fill up the post under promotion quota. The applicant claims that if that be so out of total 14 posts only one post is for promotional quota, therefore, the percentage of promotion comes out to be 7.14 which is contrary to the requirement of filling up of 15% posts under promotion quota as per the clause (11) of the rule.
The case of the applicant was along recommended and forwarded for extension of his adhoc appointment till his regular appointment by the Faculty In-charge (Computer) taking into consideration the nature of duties performed by him and the said note was duly marked to the Administrative Officer with a direction to furnish information as to whether he has applied for the post of Lab. Technician though as a matter of fact the post was already filled on 06.09.2009. That, 12 posts of Lab Technician under Direct Recruitment Quota stood exhausted with the appointment of four (04) more candidates from General Category and eight (08) persons were already holding the post on regular basis under Direct Recruitment Quota. The applicant contends that no effort was made to fill up any post earmarked for ST category under DR quota and no reservation could be made with regard to two posts meant under promotion quota.
The applicant states that even if it is assumed that he was appointed on ad hoc basis against the ST post then he ought to have been reverted only consequent to the appointment and joining of such ST candidate but he was reverted to his substantive post of Laboratory Attendant w.e.f. 30.09.2006 whereas the ST candidate was appointed only on 22.03.2007. Further, if it is assumed that he was appointed in the year 1995 against the ST post then same could not be carried forward after 02.07.1995, the date from which post based roster came into effect.
With the appointment of 04 candidates under Direct Recruitment quota vide Order dated 06.09.2006, no post was left under Direct Recruitment Quota and only two posts remained under promotion quota. Therefore the contention of the respondents that Shri George Meshack was appointed by Direct Recruitment against the post earmarked for ST category is not correct.
Upon reversion to his substantive post of Lab. Attendant his pay was also fixed in the post of Laboratory Attendant at Rs. 2720/- w.e.f. 01.02.1996 in the scale of Rs. 2550-55-2660-60-3200/- though he was the senior most Lab Attendant and is entitled to 1st financial upgradation w.e.f. 09.08.1999 under ACP Scheme upon completion of 12 years of service. However, instead of granting pay protection, he pay was revised and fixed at Rs. 5900/- in the scale of pay of Rs. 5000-150-9000/- in the post of Lab. Technician while working on adhoc basis w.e.f. 13.06.1995 to 30.09.2006.
He made a representation on 13.11.2006 for recalling his order of reversion, which was done without issuing any show cause notice and fixing his pay in the post of Lab. Attendant after serving as Lab. Technician for the last 11 years without any break. However, his representation was rejected on the single ground that the recruitment for the backlog vacancy reserved for ST category has been initiated.
The applicant was also subjected to written examination and proficiency test for assessing his suitability for promotion to the post of Lab. Technician on 25.10.2007 though there is no provision for conducting such test in the recruitment rules and was granted promotion to the post of Lab. Technician on 13.11.2007.
The applicant, being aggrieved, with the action of the respondent authorities in not treating his adhoc appointment in the post of Lab. Technician till regular promotion in continuity by rectifying their mistake or in the alternative to grant the benefit of scale of Rs. 4000-6000/-notionally from the date of appointment and actually from the date of issue of order as extended in other Lab Attendants approached this Tribunal by filing O.A. No. 351/00147/2014, which was disposed of vide Order dated 23.02.2015 holding therein that since six months’ time has not elapsed from the date of representation, the application was premature. In compliance of Order dated 23.02.2015, the respondents have passed an Order dated 18.02.2015 rejecting his representation.
The respondents have filed their reply wherein they have contended that the posts of Lab Technicians and Lab Workshop Assistant were created in Dr. B.R. Ambedkar Government Polytechnic and 2nd Government Polytechnic which were merged together and renamed as Lab Technician vide Order dated 30.03.2011and vide Andaman & Nicobar Gazette Notification dated 12.07.2010, 10 posts were created in Dr. B.R. Ambedkar Government Polytechnic College, 09 posts and 05 posts of Lab Workshop Assistant in 2nd Government Polytechnic College. According to the respondents, these posts could only be filled up after filling up of the post of Head of Department and Lecturer, hence the posts were vacant for a long time and, as such, the post was advertised to be filled on temporary basis by transfer on deputation vide Circular dated 01.04.1995. In response to such advertisement, the applicant was appointed on adhoc basis as Lab Technician. Thus his appointment against the existing reserved vacancy of ST was purely on temporary and adhoc basis for 03 months vide Order dated 13.06.1995, which was extended from time to time till 30.09.2006. During the 5th CPC the pay scale of Lab Technician was amended and a provision of 15% was kept for promotion and 85% for Direct Recruitment so that the Lab Attendant gets an opportunity for upward mobility. Consequent on Notification of the RR in the year 2006, vacancy notice for filling up of 04 posts of Lab Technicians on regular basis in the Establishment of Dr. B.R. Ambedkar Govt. Polytechnic College, Pahargaon was published on 26.03.1999 against which the applicant did not applied nor had he challenged the process of such appointment during that time. Since there was instructions from the Administration to fill up the vacant post against reserved ST category on 06.09.2009, the adhoc service of the applicant was discontinued and he was reverted to his original post of Lab Attendant w.e.f. 30.09.2006 and his pay was revised w.e.f. 07.11.2006. Being aggrieved with revision of pay fixation done in the post of Lab Attendant, the applicant filed a representation dated 13.11.2006, which was disposed of by the authorities vide Memo dated 21.11.2006, which according to the respondents was never challenged. The reserved post of Laboratory Technician under ST category was advertised on 17.10.2006 and Shri George Meshack, who is a ST candidate was appointed on 22.03.2007. In the meantime, another vacancy arose in the post of Laboratory Technician consequent upon retirement of one Shri K. Umar on invalid pension ground w.e.f. 05.05.2005 and the said post was placed under promotion category as per the roster. Accordingly, DPC in its meeting held on 29.10.2007 recommended promotion of the applicant for the post of Laboratory Technician and was promoted to the post of Laboratory Technician on 13.11.2007 and his pay was fixed under Rule FR 22(1)(a)(i). At that relevant point of time, the applicant did not raise any grievance. After a lapse of 07 years, the applicant made another representation dated 16.09.2014 requesting promotion to the post of Lab Technician be treated as continuation of his adhoc appointment to the said post or grant him 1st Financial upgradation and according fixing his inter se seniority in the post of Lab Technician as per quota rule. The respondents claims that adhoc appointment and promotion to the post of Laboratory Technician are totally independent and not interlinked. The applicant was appointed purely on adhoc basis against the ST quote in the year 1996 and he continued in the same capacity till 30.09.2006. During the year 2006 when the ST candidate became available, his ad hoc service in the post of Laboratory Technician was not extended and he was reverted to his original post. Hence, the respondents have contended that since he worked as Lab Attendant and not as regular Lab Technician, he cannot claim that his pay be fixed for that period. They have submitted that his claim being hopelessly barred by limitation ought to be dismissed in limine. The respondents further claim that during the year 2014, the applicant had approached this Tribunal by filing O.A. No. 351/00147/2014, wherein he had sought for certain reliefs. During pendency of the O.A., his representation dated 16.09.2014 was disposed of vide Order dated 08.12.2014, which was duly served upon the applicant. In compliance to this Tribunal Order dated 23.12.2014 a reasoned and Speaking Order was passed on 18.02.2015. Without challenging the speaking Order, the applicant had again approached this Tribunal by filing O.A. 351/00060/2015 wherein he had modified his prayer. The respondents further contend that this O.A. was initially dismissed by this Tribunal vide Order dated 16.11.2023. Challenging the said Order, the applicant had approached the Hon’ble High Court, Calcutta by filing WP No. 11/2024 and the Hon’ble High Court vide Order dated 12.06.2024 has remanded the matter back to this Tribunal granting the applicant permission to amend the relief clause of the O.A. for further adjudication. Pursuant to such direction, the applicant has filed the instant O.A. amending the relief clause of the O.A.
The applicant has filed rejoinder wherein the averments made in the O.A. are reiterated.
Heard the Ld. Counsel for both the parties and perused the materials available on record.
It is noted that as per the applicant, he was initially appointed on temporary basis against existing vacancy as Lab Attendant vide Order dated 02.02.1987. However, as per him, in the meantime, one Circular was issued on 01.04.1995 proposing to fill up the post of Lab Technician from the eligible candidates by transfer on deputation basis and as he was found suitable, he was appointed vide Order No. 360 dated 13.06.1995 (Annexure A-3) as Lab Technician and since then he has been working on temporary basis as Lab Technician till 30.09.2006. In the meantime, vide Order dated 11.06.1998 (Annexure A-1), he was confirmed to the post of Lab Attendant w.e.f. 02.02.1992. He was reverted back to the original post of Lab Attendant w.e.f. 30.09.2006.
However, it is observed that as per the respondents, he had never challenged the said reversion either by way of any representation or by filing any Original Application before this Tribunal and thereafter his pay was refixed w.e.f. 07.11.2006 (Annexure A/12). Being aggrieved with, the said revision of pay, the applicant filed a representation for the first time on 13.11.2006, which was disposed of by the authorities vide Memo dated 21.11.2006, which has not been denied by the applicant in his rejoinder or during the course of submission but the same was never challenged by the applicant as claimed by the respondents.
It is noted that though as per the applicant, there was no mention in the advertisement with regard to filling up of vacancy against the ST quota, however, in his engagement letter dated 13.06.1995, it was specifically mentioned that he was appointed against the existing reserved vacancy of ST category purely on temporary and adhoc basis which is as follows:
“……. In exercise of the powers vested in him vide A&N Gazette Notification No. 110 dated 9.1.1987, (F. No. 20-9086-1).III dated 9.1.87, the Principal, Dr. B.R. Ambedkar Govt. Polytechnic, Port Blair, hereby appoints Shri Chaman Lall, Laboratory Attendant of this department as Laboratory Technician, Group ‘C’ against the existing reserved vacancy of S.T. purely on temporary and adhoc basis for a period of three months at a basic pay of Rs. 1400/- p.m. in the scale of Rs. 1400-40-1800-50-2300/- with effect from his reporting for duty in the Dr. B.R. Ambedkar Govt. Polytechnic, Port Blair.”
Therefore, in our considered opinion, though he was allowed to continue in the said post from 13.06.1995 to 30.09.2006 on adhoc basis, however there was a specific mention in his appointment letter that he has been temporarily appointed against the post of ST, against which he never raised any objection. Therefore, his reversion to the original post of Lab Attendant for filling up the said post by a regular promotee/recruitee cannot be said to be illegal.
It is also observed that when he was appointed as an adhoc Lab Technician in the year 13.06.1995, at that point of time, he was not even confirmed in his initial post, therefore, as per the advertisement, even he was not entitled to be appointed on deputation basis by way of transfer.
It is further noted that after being reverted, he was again considered by the DPC and was promoted to the post of Lab Technician on 13.11.2007. However, he joined in the promoted post on 14.11.2007 in the post of Lab Technician without any objection and had worked in the said post for even 07 years thereafter, however, after more than 07 years, he filed representation on 16.09.2014. When the said representation was pending, he filed one O.A. No. 147 of 2014 for the first time, which was disposed of by this Tribunal vide Order dated 23.12.2014 directing the authorities to pass a reasoned and speaking Order.
In compliance to the said Order, one speaking Order dated 18.02.2015 was passed. However, without challenging the said speaking Order, the applicant has again approached this Tribunal by filing O.A. No. 351/00060/2015, which was dismissed with the following Order:-
“…….we find that the applicant has not challenged the speaking Order dated 08.02.2015 passed by the respondents in compliance of the Orders of this Tribunal in O.A. No. 351/00147/2015 wherein the prayer made in his representation dated 16.09.2014 has been rejected. Moreover, the applicant has not brought out specific grounds as to why the aforesaid speaking order dated 18.02.2015 passed by the respondents is not sustainable under law.
We have also examined the speaking order dated 18.02.2015 and find it to be detailed and well-reasoned. We do not find any infirmities in the said speaking order.
In view of the above reasons, we are of the view that this Original Application lacks merit. We therefore dismiss this Original Application. There shall be no order as to costs.”
Being aggrieved, the applicant approached the Hon’ble High Court by filing Writ Petition No. 11/2024 and vide Order dated 12.06.2024 the said Writ Petition was allowed with the following direction:-
“Accordingly, WPCT No. 11/2024 is allowed, thereby setting aside the impugned Order dated November 16, 2023 passed in O.A. No. 351/00060/2015 (AN) and remanding the matter to the Tribunal with a direction on the Tribunal to re-adjudicate the issues involved upon giving a fresh opportunity of hearing to the parties on the materials already on record and to pass a reasoned judgment upon adverting to all the material components of the case and the arguments of the parties in default. It is expected that such exercise shall be concluded as expeditiously as possible, preferably within three months from the date of communication of this order to the Tribunal. It is further made clear that it will be open to the Tribunal, if necessary, to permit the petitioner to amend the reliefs of the OA.”
Pursuant to such Order passed by the Hon’ble High Court the applicant has approached this Tribunal by filing M.A. No. 351/00124/2025 was filed by the applicant, which was disposed of by this Tribunal vide Order dated 28.04.2025 by passing the following Order:-
“…….We have perused the records and we find that though earlier the applicant made averment in Paragraph 1(i) & 1(iv) earlier and also enclosed the Orders in Annexures but did not challenge the same in the prayer portion. Hence amendments in O.A. is necessary.
Accordingly, the M.A. is allowed. The applicant is directed to make appropriate amendments in the O.A. and serve a copy of the amended O.A. to the respondents.”
Pursuant to such Order, the applicant has amended the relief clause, which reads as under:-
“(A)A declaration be made declaring the impugned Roster updated on 28.02.2013 (Annexure A-17) as illegal being contrary to rules.
(B)An Order be passed quashing the impugned order No. 1356 dated 18.02.2015 (Annexure A-22) and Memo dated 08.12.2014 (Annexure A-21).
(C)An order be passed quashing the Order No. 704 dated 07.10.2006 (Annexure A-12) and to direct respondent authority to refix his pay in post of Lab. Technician treating the period as regular with effect from 30.09.2006 to 14.11.2007, the date on which regular promotion was granted.
OR
(D)An order be passed directing the respondent authority to grant the applicant the benefit of the scale of pay of Rs. 4000-6000/- notionally from the date of appointment and actually from the date of the issue of the order in terms of order dated 29.10.2010 (Annexure A-18) as granted to other Lab. Attendants and to further grant 1 financial up-gradation under ACP Scheme with effect from 09.08.1999 and, consequent, thereto to re-fix his pay on promotion to the post of Lab. Technician.
(E)An order be passed directing the respondent authority to release all consequential benefits after taking action either in terms of Prayer (A) & (B) or prayer (C) including the arrears of salary with interest.
(F)Cost and incidentals to this application.”
In view of the above, in our considered opinion, the applicant cannot claim regularization of service from 1995 to 2006 in view of the fact that he was reverted on 30.09.2006 and was subsequently promoted on 30.12.2007.In the meantime, he had worked as Lab Attendant without challenging any of the Orders.
Further, the prayer of the applicant in the instant Original Application for quashing of Order dated 07.10.2006 cannot be allowed after a distant period of time as the applicant had only approached this Tribunal in 2014 which is also hopelessly barred by limitation.
However, as alternatively, the applicant has prayed for directing the respondent authority to grant the applicant the pay scale of Rs. 4000-6000/- from the date of his appointment and notionally from the date of appointment and actually from the date of the issue of the Order in terms of Order dated 29.10.2010 as granted to other Lab. Attendants and to refix his pay on promotion to the post of Lab Technician.
In support of such prayer, the applicant has also drawn our attention to the Office Order dated 29.10.2010 (Annexure A-18) whereby 22 persons including Shri George Meshack was appointed as Laboratory Technician on 29.03.2007 and as per the applicant Mr. George Meshack was appointed against direct recruitment quota, he has been shown against the promotion quota. However, from the perusal of the Order dated 29.10.2010, it is noted that Shri George Meshack was initially appointed as Laboratory Attendant under ST quota vacancy, thereafter he was promoted vide Order dated 2006 (Annexure A-16). It is noted that the refusal on the part of the respondents in the impugned Order on the ground that the applicant was promoted to the post of Laboratory Technician on 13.11.2007, which is prior to the Order passed during the year 2010. However, from the perusal of the Order as well as the case of George Meshack, it is observed that Shri George Meshack was also one Lab. Attendant, who got promotion on 22.03.2007 and the applicant got promotion only on 13.11.2007, which means that Shri George Meshack got promotion prior to the applicant. Therefore, if the benefit of the scale of pay of Rs. 4000-6000/- can be extended to Mr. George Meshack, who was initially Lab Attendant and thereafter promoted to the post of Lab Technician, therefore, after reversion in pursuance to confirmation in the post of Lab Attendant from 02.02.1992 he is also entitled to get the same benefit as well as the 1st Financial Upgradation under the ACP Scheme after completion of 12 years as Lab Attendant in the year 1999 and consequential MACP benefits made also to be extended to him, if he is otherwise found eligible.
Therefore, the O.A. is partly allowed with the above observation and direction with no order as to costs.