Ghulam Mohi Ud Din Bhat vs Skuast & Others

Sanjay Dhar, J

1) The petitioner has challenged communication bearing No.AU/Adm/Act/B-34/11/19568-71 dated 14.11.2012, issued by the respondents, whereby claim of the petitioner for regularizing his services as Assistant-cum-Typist retrospectively with effect from 02.12.1996 to 01.12.2003 has been declined. A further direction has been sought by the petitioner upon respondents to give retrospective effect to the promotion of the petitioner as Assistant-cum-Typist with effect from 02.12.1996 as was done in the case of one Mr. Ali Mohammad Teli.

2) It appears that the petitioner had previously filed a writ petition bearing SWP No. 2145 of 2011 seeking a direction upon the respondents that retrospective effect be given to his appointment as Assistant-cum-Typist on the same analogy as was done in the case of Shri Ali Mohammad Teli. In said writ petition, it was claimed by the petitioner that he came to be appointed on adhoc basis as Laboratory Attendant in terms of order No.AU/Adm/308-87 dated 22.06.1994 for a period of six month with effect from 01.7.1994 and this adhoc appointment came to be extended from time to time. Vide order No.AU/Adm/96/CJ/1036-41 dated 04.12.1996, the petitioner was adjusted as Assistant-cum-Typist on ad hoc basis for a period of three months and the said engagement of the petitioner came to be extended by the respondents from time to time by issuing a number of orders in this regard.

3) Vide University Order No.634(Est.) of 2003 dated 20.12.2003, services of the petitioner along with other similarly situated person were regularized with effect from 02.12.2003. Name of Shri Ali Mohammad Teli, who was also working as Assistant-cum-Typist with the respondents, also figured in the said order. It was submitted by the petitioner that a representation came to be made by Shri Ali Mohammad Teli for his retrospective regularization and the same was conceded by the responded by issuing order No110 (Est.) of 2011 dated 0402.2011. Accordingly, the said Ali Mohammad Teli was deemed to have been appointed as Assistant-cum-Typist with effect from 02.12.196 notionally without financial encumbrance.

4) Once the aforesaid order was issued by the respondents, the petitioner made a representation seeking similar benefit in his favour. When the representation of the petitioner did not yield any result, the petitioner filed a writ petition bearing SWP No.2145/2011. The said writ petition came to be disposed of by this Court in terms of order dated 11th of May, 2012, whereby the respondents were directed to accord consideration to the petitioner’s case in accordance with the rules governing the matter having regard to the treatment given to all similarly placed colleagues of the petitioner.

5) Pursuant to the aforesaid direction of the Court, impugned communication dated 14th of November 2012, came to be issued by the respondents whereby request of the petitioner was declined on the ground that the grant of benefit of retrospective appointment to the petitioner would affect the seniority of other persons who rank senior to him and that the case of Shri Ali Mohammad Teli is distinct, inasmuch as he was accorded the benefit of retrospective appointment after his retirement as a result of which it did not affect the seniority of any of the employees in the cadre.

6) The petitioner has challenged the impugned communication on the grounds that there is no justification for the respondents to decline similar treatment to the petitioner as was done in the case of Ali Mohammad Teli. It has been further contended that the petitioner had specifically submitted before the respondents that he will not claim any seniority in the cadre and, as such, it is not open to the respondents to deny him the benefit on the ground that the seniority of others will be affected.

7) The respondents have contested the writ petition by filing a reply thereto. In the reply it is submitted that the benefit extended to Ali Mohammad Teli could not be extended to the petitioner as it would affect the seniority of other employees in the cadre who rank senior to the petitioner. It has been further submitted that vide University order No.1002(Est) of 2007 dated 14.12.2007, it has been provided that the adhoc service of 27 employees including that of the petitioner would be counted for pensionery benefits and the break days shall be condoned. Thus, according to the respondents, interests of the petitioner stand safeguarded by issuance of the aforesaid order as by the time he retires, the petitioner would have a service career of about 34 years at his back and, as such, he would be entitled to full pension. Thus no prejudice would be caused to the petitioner. It has been submitted that the case of Ali Mohammad Teli is on a different footing, inasmuch as he had already superannuated at a time when the benefit of retrospective appointment was accorded in his favour.

8) I have heard learned counsel for the parties and perused the record of the case.

9) The main plank of argument of the learned counsel for the petitioner is that on the grounds of parity, the petitioner is entitled to similar treatment as was given his colleague Shri Ali Mohammad Teli. In this regard, learned counsel has placed reliance upon the judgment of this Court in the case of State of J&K & anr. vs. Raj Nath Koul and anr. 2014 (3)JKJ 615[HC]. The learned counsel has also relied upon several other judgments, which primarily deal with the issue relating to equal pay for equal work and the issue relating to regularization of services of ad hoc/daily rated workers.

10) The first question which is required to be considered is as to whether the petitioner has a legal or statutory right to be appointed from the date of his initial engagement as an ad hoc employee. It is only if the petitioner succeeds in showing that he has any such right vested in him, a writ in the nature of mandamus can be issued against the respondents directing them to regularize the services of the petitioner from that particular date.

11) It is admitted case of the petitioner that he was initially appointed on adhoc basis and his services as such came to be extended from time to time until in the year 2003, a decision was taken by the Board of Management of the responded University in it is 42nd meeting held on 16th of October, 2003, to regularize services of a number of adhoc employees including that of the petitioner. The effect of regularization of services of the petitioner was given from 02.12.2003. This was a policy decision taken by the Board of Management of the respondent University, which is competent to take such a decision. Ordinarily, an ad hoc employee, without there being any policy of the government or the employer to regularize his services, cannot claim, as a matter of right, that his services should be regularized from a particular date. Once the competent authority of the respondent University took a policy decision to regularize the services of the petitioner and similar other employees from a particular date, the petitioner does not have a right to ask for retrospective regularization of his services because such a claim would be beyond the scope of the policy decision that is taken by their employer.

12) The next question that comes up for consideration is as to whether the petitioner can claim similar benefit as has been extended to Shri Ali Mohammad Teli, whose services were regularized in terms of the same order vide which services of the petitioner were regularized. As already noted that in terms of the policy decision taken by the Board of Management of the respondent University, it was resolved that the services of ad hoc employees including those of the petitioner and Ali Mohammad Teli would be regularized from a particular date. The respondents after considering the case of Ali Mohammad Teli vide their order dated 04.12.2011, gave retrospective effect to his appointment from 02.12.1996. This, according to the petitioner, was done because Shri Ali Mohammad Teli had already superannuated by that time and by extending the benefit of retrospective appointment to said person, rights and seniority of other employees of the respondent University were not affected. The case of the petitioner is on different footing, inasmuch as he is still in service. In case the petitioner is extended the benefit of retrospective appointment as was done in case of Ali Mohammad Teli, it is bound to affect the seniority of other employees of the respondents who have been appointed/regularized prior to the date of regularization of the petitioner.

13) It has been contended by learned counsel for the petitioner that the petitioner would not claim any seniority, if he is given retrospective appointment. If the petitioner would not claim any seniority or promotion on the basis of his retrospective appointment, then passing an order directing the respondents to grant him such a relief would be superfluous because he would not either be able to get any promotion on the basis of such an order nor he would get any financial benefit as the benefit extended to Ali Mohammad Teli has only a notional effect without any financial encumbrance.

14) So far as the reckoning the length of service for calculating the pensionery benefits of the petitioner is concerned, this part has already been taken care of by the respondents by issuing order dated 14.12.2007, vide which it is provided that the services rendered by the employees on adhoc basis prior to their regularization shall count for pensionary benefits in respect of pensionable service in the University. The petitioner is, admittedly, covered by the said order and, as such, he would be entitled to full pension upon his superannuation for which he is otherwise eligible. Thus, giving of retrospective effect to the appointment of the petitioner without giving him seniority or promotional benefit would, in the facts and circumstances of the case, be an idle formality and if seniority and promotional benefits are given to the petitioners, then it would certainly adversely affect the rights of other employees whose services have been regularized prior to the regularization of services of the petitioner. The respondents have, therefore, rightly rejected the claim of the petitioner.

15) For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed.