Sri Kaushik Bhattacharjee vs The Union Of India & Ors.

PER: RAJINDER SINGH DOGRA, MEMBER (J): This O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

Brief facts of the case, as submitted by the applicant, are that he was initially appointed in the Directorate of Census Operations, Arunachal Pradesh, Shillong, as Draftsman on ad-hoc basis w.e.f. 16.04.1991 vide order dated 14.04.1991 against a post created for the 1991 Census. His appointment was pursuant to a written test held on 18.01.1991 and the recommendation of the Selection Board. He continued in the said post till 19.02.1992. After a break of four days, he was again appointed w.e.f. 24.02.1992 vide appointment order dated 13.03.1992 (Annexure-A/4) in the same post, which, according to the applicant, was through the District Employment Exchange, Silchar, after a selection process including a written test and viva voce. However, after rendering service for a period of 1 year, 10 months and 5 days, his services were terminated from the post of Draftsman vide order dated 01.12.1993 on account of abolition of one Census post, namely, Sri K.J. Pandit (since deceased) being reverted from Senior Artist to Artist and A.R. Sharma (since deceased) being promoted from Artist to Draftsman, along with Sri R.C. Deb (since retired) and D.R. Khungbu (since deceased) (Annexure-A/5). Though he was the junior-most Draftsman, his services were terminated/retrenched vide order dated 01.12.1993 by giving one month's notice under Rule 5(1) of the CCS (Temporary Service) Rules, 1965, treating him as a temporary employee. Being aggrieved, he preferred O.A. No. 266/1993 before this Tribunal, which was dismissed vide order dated 05.01.1994, with a direction to the respondents to consider his appointment/re-appointment if any post was lying vacant (Annexure-A/6). The applicant thereafter submitted a representation to respondent No. 3 seeking his re-appointment in terms of the aforesaid order dated 05.01.1994. However, his case was not considered. Being aggrieved, he again approached this Tribunal by filing O.A. No. 169/1999, which was allowed vide order dated 16.05.2001 (Annexure-A/7), directing the respondents to absorb the applicant against a regular post in accordance with the rules. The respondents challenged the said order before the Hon'ble Gauhati High Court by filing W.P.(C) No. 188/2002, which was dismissed vide judgment and order dated 27.08.2002 (Annexure-A/8). The Review Petition No. 18/2003 filed by the respondents was also dismissed vide order dated 04.09.2003. Thereafter, the respondents approached the Hon'ble Supreme Court by filing SLP Nos. 4216-4217/2004 against the judgment and order dated 27.08.2002, which were dismissed vide order dated 12.04.2004.

The applicant further pleads that, alleging non-compliance with the order dated 16.05.2001 passed by this Tribunal in O.A. No. 169/1999, whereby the respondents were directed to absorb him against a regular post in accordance with the rules, he preferred Contempt Petition No. 06/2003. During the pendency of the said Contempt Petition, the Deputy Director, O/o the Registrar General of India, issued an office order dated 19.09.2003 accommodating the applicant as Draftsman Grade-II on purely temporary ad-hoc basis, without conferring any right of seniority, promotion, regularisation, etc., in the pay scale of Rs. 5000-150-8000/- in the Directorate of Census Operations, Orissa, Bhubaneswar. The same was communicated to the applicant vide OM dated 23.09.2003. The applicant was directed to submit his acceptance of the appointment within seven days from the date of receipt of the offer (Annexure-A/10). Subsequently, in supersession of the aforesaid office order dated 19.09.2003, the Under Secretary to the Government of India, Ministry of Home Affairs, O/o the Registrar General of India, issued OM dated 05.07.2004, whereby the applicant was offered appointment as Draftsman in the Directorate of Census Operations, West Bengal, in the pay scale of Rs. 5000-150-8000/- (Annexure-A/11). Upon acceptance of the said offer, the applicant was appointed to the said post vide order dated 06.08.2004 w.e.f. 04.08.2004 in the Directorate of Census Operations, West Bengal (Annexure-A/12).

The applicant contends that the Government of India, Department of Pension and Pensioners' Welfare, issued OM dated 17.02.2020, whereby it was observed that in cases where the selection process, including written examination, interview and declaration of result, for recruitment had been completed before 01.01.2004, but the employee joined Government service on or after 01.01.2004, denial of the benefit of pension under the CCS (Pension) Rules, 1972, was not considered justified. Accordingly, it was decided that, in such cases, candidates declared successful for recruitment would be eligible for coverage under the CCS (Pension) Rules, 1972, subject to the conditions stipulated therein, and a one-time option was provided to exercise such benefit by 31.05.2020. According to the applicant, since his appointment as Draftsman Grade-II on temporary basis was made pursuant to the recommendation of the Selection Committee, as evident from the order dated 13.03.1992, and after a written test and viva voce on the recommendation of the Employment Exchange, as evident from the letter dated 03.02.1992 issued by the Assistant Director of Employment, District Employment Exchange, Silchar, which, according to him, is a valid mode of public recruitment, he acquired a valuable legal right to have his seniority counted at least from 24.02.1992 instead of 04.08.2004. It is his case that the respondents committed a serious error in reckoning his date of initial appointment as Draftsman as 04.08.2004 instead of 24.02.1992, resulting in the applicant being placed below respondent No. 6 in the impugned final combined seniority list of Senior Draftsman as on 01.01.2024, issued vide letter dated 09.04.2024. According to the applicant, on this ground alone, the impugned seniority list is liable to be set aside to the extent it relates to him, with a further direction to the respondents to recast the combined final seniority list of Senior Draftsman as on 01.01.2024 by placing him above respondent No. 6 and to declare him senior to respondent No. 6 in the cadre of Senior Draftsman. In support of his contention, learned counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, reported in (1990) 2 SCC 715, wherein it was held that once an incumbent is appointed to a post according to the rules, his seniority has to be counted from the date of his appointment and not from the date of his confirmation.

The applicant further submits that he submitted a representation dated 11.03.2024 in response to the objections invited pursuant to publication of the provisional All India seniority list of Senior Draftsman vide letter dated 28.02.2024. However, his representation was rejected in an arbitrary and ex facie illegal manner vide impugned letter bearing F. No. A-24011/19/2023-Ad-II dated 09.04.2024 (Annexure-A/2), which was communicated to him vide Office Memorandum dated 08.05.2024.

The respondents have filed their written statement and have stated that the applicant was initially appointed as Draftsman Grade-II on ad-hoc basis vide order dated 14.04.1991 for a limited period up to 28.02.1992. The said order specifically provided that the post had been created specially in connection with the 1991 Census Work and would be abolished on completion of the work, whereupon the applicant would be retrenched and the Government would have no liability thereafter. The applicant continued in the post till 19.02.1992. Thereafter, he was again appointed in the same capacity as Draftsman vide order No. ARA.12036/7/91-ESTT dated 13.03.1992, on the same terms and conditions as contained in the earlier appointment order. The respondents further submit that, after several rounds of litigation, the applicant was absorbed against a regular post vide OM dated 05.07.2004, pursuant to which he joined on 04.08.2004. It is stated that the applicant accepted the condition that he would be governed by the newly introduced contributory pension system for new entrants, as stipulated in the relevant Government orders. Therefore, according to the respondents, the OM dated 17.02.2020 is not applicable to the applicant. It is further stated that, in compliance with ORGI's OM No. A-42011/13/99-AAd-II dated 05.07.2004, the applicant joined the post of Draftsman in DCO, West Bengal w.e.f. 04.08.2004 (F/N) on regular basis. The same has been reflected in his Service Book and other official records, including his self-attested official declarations. Accordingly, the All India Seniority List of Senior Draftsman as on 01.01.2024 was prepared by reckoning his date of regular appointment as 04.08.2004 (F/N).

We have heard Sri M. Chanda, learned counsel for the applicant and Sri S.K. Ghosh, learned Addl. CGSC for the respondents and have also perused the pleadings and the material available on record.

During the course of arguments, learned counsel for the applicant has placed reliance upon the following judgments:

It is an admitted position that the applicant was appointed as Draftsman Grade-II on ad-hoc basis vide order dated 14.04.1991 for a limited period up to 28.02.1992 (Annexure-R/1). The said order expressly stipulated, inter alia, as follows:

The applicant continued in the post till 19.02.1992. Thereafter, after a short break, he was again appointed in the same capacity as Draftsman vide order No. ARA.12036/7/91-ESTT dated 13.03.1992, on the same terms and conditions as contained in the earlier appointment order (Annexure-R/2). His services were subsequently terminated vide order dated 01.12.1993, upon abolition of the post, after giving due notice (Annexure-R/3). Thereafter, pursuant to the orders passed in the litigation initiated by the applicant, the respondents issued OM dated 05.07.2004 offering him appointment as Draftsman, pursuant to which he joined the post on 04.08.2004 (Annexure-A/11). Paragraph 2(d) of the said OM stipulated as follows:

The respondents have also relied upon the provisions relating to re-deployment of retrenched temporary employees and have referred to Para 3 of Swamy's Establishment and Administration, which stipulates as under:

We have heard the learned counsels for both the parties and have perused the pleadings and the material available on record.

The applicant's claim for reckoning his seniority from 24.02.1992 rests principally on the assertion that his appointment from that date was made after a selection process through the Employment Exchange. However, the appointment order dated 13.03.1992 itself records that the applicant was appointed in the same capacity and on the same terms and conditions as his earlier ad-hoc appointment. The earlier appointment was expressly described as purely temporary and ad-hoc and was liable to termination in terms of the conditions contained therein. The applicant's services were, in fact, subsequently terminated in 1993.

The order dated 16.05.2001 passed by this Tribunal in O.A. No. 169/1999 directed the respondents to absorb the applicant against a regular post in accordance with the rules. The said order did not direct that his earlier ad-hoc/temporary service from 24.02.1992 should be counted for the purpose of seniority in the regular cadre. Pursuant to the said order and the subsequent judicial proceedings, the applicant was offered appointment by OM dated 05.07.2004 and joined the regular post w.e.f. 04.08.2004. The respondents have consistently reflected 04.08.2004 as his date of regular appointment in the Service Book and other official records.In these circumstances, the ratio of Direct Recruit Class II Engineering Officers' Association (supra) does not assist the applicant, as the appointment w.e.f. 24.02.1992, on the terms and conditions recorded in the appointment order, cannot be treated as a regular appointment for the purpose of determining seniority in the regular cadre. We also find no material on record showing that any of the judicial orders relied upon by the applicant specifically directed the respondents to count his pre-2004 ad-hoc/temporary service for the purpose of seniority in the regular cadre.

We may also note that the applicant accepted the appointment offered pursuant to the aforesaid proceedings and joined the regular post w.e.f. 04.08.2004. His date of regular appointment has thereafter been consistently reflected as 04.08.2004 in the Service Book and other official records. The applicant has not produced any order or document showing that his earlier ad-hoc/temporary service was ever directed to be counted for the purpose of seniority in the regular cadre. The mere fact that the applicant has challenged the seniority position in the year 2024, when the impugned seniority list was issued, does not alter the nature of his earlier appointment or confer retrospective seniority upon him.

In view of the foregoing discussion, we find no merit in the claim of the applicant for reckoning his seniority in the regular cadre from 24.02.1992. Consequently, we find no infirmity in the impugned final combined seniority list dated 09.04.2024 insofar as the applicant is concerned. The Original Application is, accordingly, dismissed. Pending M.A.(s), if any, shall stand disposed of. There shall be no order as to costs.