Gangeshwar Prasad Tripathi. vs State Of Madhya Pradesh & Others

This petition has been filed by petitioner Gangeshwar Prasad Tripathi under Article 226 of the Constitution of India against the order dated 23.11.2009 passed by the respondent No.2/Engineer-in-Chief, Public Works Department, Bhopal whereby the order dated 24.4.2009 has been quashed by which the seniority was granted to the petitioner from the initial date of appointment.

In brief, the facts of the case are that the petitioner joined the office of the Madhya Pradesh Rajya Setu Nirman Nigam, Ltd. on 23.7.1986, as Graduate Engineer on ad hoc basis. In the year 1990-91 the Madhya Pradesh Rajya Setu Nirman Nigam, Ltd. merged with Public Works Department (Bridge) of the State of M.P. and the services of the petitioner were also absorbed in the Public Works Department (Bridge). The case of the petitioner is that prior to the aforesaid merger on 23.5.1990, the services of the petitioner were already regularized at the Madhya Pradesh Rajya Setu Nirman Ltd., however, after the aforesaid merger in the year 1990-1992, in the gradation list published by the respondents, the date of the petitioner's joining was shown as 23.5.1990 which is the date of his regularization.

Being aggrieved of the aforesaid, the petitioner made representation to the respondents but the same was dismissed on the ground that the petitioner was appointed as a daily wager employee and not on ad hoc basis so his seniority is rightly fixed. Against the aforesaid order of rejection representation, the petitioner filed WP No. 3016/2007 before this Court and in the said writ petition, in the additional reply filed by the respondents on 6.5.2009, they admitted the claim of the petitioner and he was given seniority from the initial date of appointment as his initial appointment was on ad hoc basis. The petitioner's case is that since the seniority was granted to the petitioner from the date of his initial appointment, he withdrew the said writ petition preferred by him. However, to his utter surprise, vide the impugned order dated 24.4.2009, the respondents, without giving any opportunity of hearing to the petitioner decided that on the basis of the decision rendered by the Supreme Court on 16.10.1998 in the case of Keshav Dev Vs. State of UP and others reported as (1999) 1 SCC 280, held that since the petitioner's initial appointment was on ad hoc basis, he would not be entitled to claim the seniority from the date of his initial appointment and being aggrieved of the aforesaid order dated 24.4.2009 this writ petition has been filed.

Learned counsel for the petitioner has submitted that the impugned order is liable to be quashed only on the ground that in the earlier round of litigation the respondents have already admitted the claim of the petitioner and on the basis of which he had withdrawn the said petition and thereafter the impugned order has been passed changing the earlier stance and thus the respondents cannot be allowed to retract their own admission given by them before this Court. It is further submitted that the petitioner's initial appointment may be was on ad hoc basis, however, the same was not irregular as the petitioner's appointment on 17.7.1986 was on ad hoc basis at the basic pay scale of Rs.950/- only, which is in line with Memorandum and Articles of Association of Madhya Pradesh Rajya Setu Nirman Nigam Ltd. in which it is clearly provided that the Board has power to appoint a person provided however that no post, the basic pay of which either exceed Rs.1250/- per month or maximum scale of which exceeds Rs.1500/- shall be created and fill without approval of the Governor. Thus it is submitted that since the initial appointment of the petitioner was regular in nature his basic pay scale was Rs.950/- only and thus it cannot be said that since the petitioner was appointed on ad hoc basis, he is not entitled to have his services counted from the date of his initial appointment.

Learned counsel for the petitioner has further submitted that even otherwise, before passing the aforesaid order the respondents have not given any opportunity of hearing to the petitioner, and as such it is a gross violation of the principles of natural justice and on this ground only the impugned order is liable to be set aside. In support of his contention learned counsel for the petitioner has relied upon the following decisions:-

(a) Sans Pal Singh Vs. State of Delhi, 1998 AIR SCW 3371.

(b) State of Mysore and another Vs. H. Srinivasmurthy, (1976) 1 SCC 817.

(c) Baleshwar Dass and others Vs. State of UP, (1960) 4 SCC 226.

(d) Gajanan L. Parnekar Vs. State of Goa, AIR 1999 SC 3262.

A reply to the aforesaid writ petition has also been filed by the respondents, admitting that in the earlier round of litigation they had admitted the date of appointment of the petitioner to be from the date of his initial appointment in the Madhya Pradesh Rajya Setu Nirman Nigam Ltd. However, it is further stated that on account of the decision of the Supreme Court in the case of Keshav Dev Vs. State of UP and others (supra), decided on 16. 10.1998 they were required to review their own order and thus it was found that since the petitioner's initial appointment was on ad hoc basis, he cannot be allowed to take the benefit of initial date of appointment in the Madhya Pradesh Rajya Setu Nirman Nigam Ltd. It is further submitted that identical orders have been passed in respect of the other similarly situated employees, however, none of them have challenged the order and it is only the petitioner who has challenged the same without any basis. It is further submitted that since the appointment of the petitioner was on ad hoc basis only, hence no opportunity of hearing was granted to him while recalling the earlier order/ gradation list.

Heard the learned counsel for the parties and perused the record.

Since the controversy revolves around the decision rendered by the Supreme Court in the case of Keshav Deo v. State of U.P. (supra), it would be fruitful to refer to the relevant paras of the same to ascertain as to whether an ad hoc employee can also claim regularisation, the same read as under:-

"18 . In D.N. Agrawal v. State of M.P. ad hoc promotions were made when the persons concerned were not eligible and had not completed the qualifying period of service. Though they were later selected by the DPC on regular basis and appointed as such to the promotion post on their completing the qualifying period of service, it was held that their ad hoc period of service cannot be counted for the purposes of their seniority.

In Direct Recruit Class II Engineering Officers' Assn. v. State of Maharashtra the Constitution Bench held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The Bench summed up the law in the form of eleven propositions. It is sufficient to refer to the first two propositions which are in the following terms: (SCC p. 745, para 47)

"(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) 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."

Masood Akhtar Khan case has no bearing in this case as the initial appointments of the appellants therein who were direct recruits were not according to the Rules.

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In Aghore Nath Dey this Court explained the scope of applicability of the corollary to Conclu-sion ( A) and Conclusion (B ) in Direct Recruit Class II Engg. Officers' Assn. case and reiterated that the benefit of ad hoc service is not admissible if appointment was in violation of rules . In V. Sreenivasa Reddy v. Govt. of A.P. the contest was only between two sets of direct recruits and the decision turned on an interpretation of the relevant Service Rules.

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We have no hesitation to hold that the im-pugned seniority list of 1995 prepared by the Government pursuant to the directions contained in D.N. Saksena and V.K. Yadav is in accordance with the Rules and cannot be interfered with on the ground that the promotees have been given the benefit of their service in officiating capacity. The question is answered in favour of the appel-lants. As stated already, individual grievances against their placement in the list have to be agit-ated in an appropriate forum. The judgment of the High Court is unsustainable and it is set aside. The writ petition filed by Respondents 3 and 4 is dismissed. The parties will bear their respective costs."

(emphasis supplied)

Thus, from the aforesaid enunciation, it is appar-ent that merely if an employee is appointed on ad hoc basis, it cannot be said as a thumb rule that the services rendered by him as such would not be admissible unless it is shown that his appointment on ad hoc basis was in violation of the rules.

In this backdrop, it was necessary for the respondent to see if the petitioner's initial appointment was in accordance with law or not. It is found that the petitioner's initial appointment dated 17.7.1986 was made by the Managing Director of the Madhya Pradesh Rajya Setu Nirman Nigam and as submitted by shri Awashti, it was in accordance with the Memorandum and Articles of Association of Madhya Pradesh Rajya Setu Nirman Nigam Ltd. but on a close scrutiny of the memo of petition reveals that the aforesaid plea has been raised in a cryptic manner only without elaborating the same. and the respondents, in their reply, are also silent regarding the legality of the petitioner's ad hoc appointment.

The other ground, which the petitioner has raised is the violation of principles of natural justice as before passing the impugned order, no notice to show cause or hearing was ever issued to the petitioner and the justification for the same by shri Bundela, learned government advocate that it would not have served any purpose is also not tenable as this ground is not even rebutted by the respondent in their reply and only an oral plea has been taken for the first time before this court. This court is of the considered opinion that before interpreting the decision of the Supreme Court to dislodge the petitioner's claim for regularization, an opportunity of hearing ought to have been provided to the petitioner especially when in the earlier round of litigation, the respondents had admitted his claim. Reference in this regard is also made to the decision of Gajanan L. Parnekar v. State of Goa reported as (1999) 8 SCC 378, it is held as under :-

"8. The manner in which the order dated 21-1-1999/22-1-1999 came to be made was, to say the least, not proper. The appellant was denuded of the benefits of the order dated 16-2-1994 un-heard. There has been a breach of the principle of natural justice and a violation of fair play in ac-tion. The earlier order made in favour of the ap-pellant as early as on 16-2-1994 was rescinded without giving any opportunity to the appellant to show cause against it. Absorption of the appellant as Headmaster of Government High School by the order dated 16-2-1994 had not been put in issue through any proceedings by any party at any point of time. That benefit could not have been taken away from the appellant without affording him any opportunity of hearing, even where the absorption as Headmaster of the High School had been put in issue. The principles of natural justice have been respected in their breach. The order dated 21-1-1999/22-1-1999 was made by the re-spondents influenced by the observations con-tained in para 2 of the order of the High Court (supra), which observations, we have already found, were not at all called for. In the facts and circumstances of the case, the order dated 21-1-1999/22-1-1999 cannot be sustained and we ac-cordingly set it aside."

(emphasis supplied)

Thus, on this count the impugned order cannot be sustained and is liable to be set aside.

In view of the aforesaid discussion, the impugned order dated 23.11.2009 is hereby quashed and the petition stands partly allowed. However, a liberty reserved to the respondent to pass a fresh order after affording due opportunity of filing his reply and also of hearing to the petitioner. The aforesaid exercise be also completed by the respondent within a period of three months from the date of receipt of certified copy of this order.

The petition stands disposed of on the aforesaid terms. No costs.