K.C. Saraswat vs The C.A.T.

Sunil Ambwani, Actg. C.J.

We have heard Mr. S.K. Malik, learned counsel appearing for the petitioners and Mr. A.K. Rajvanshi, learned Assistant Solicitor General & Mr. Manoj Bhandari, learned counsel appearing on behalf of the respondents.

These two writ petitions arise out of the orders passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur by which the Original Applications filed by the petitioners claiming same reliefs, which were extended to K.P. Bissa and others in O.A. No. 257/2001 "K.P. Bissa vs. UOI" by the judgment dated 19.9.2002 and to Dilip Kumar & others in O.A. No. 3/1989 "Dilip Kumar vs. UOI" by the judgment dated 9th July, 1993 and also to Asha Vadhwani in O.A. No. 838/1989 "Asha Vadhwani vs. UOI, by the judgment dt. 21.10.1994, to the effect that the applicants be also regularized from the date of their initial entry into service with all consequential benefits, were dismissed.

The petitioner-applicants in Writ Petition No. 2543/2007 were initially appointed as Clerk Gr. II in the pay scale of Rs. 260-400 (known as CG-II) on ad hoc basis on the dates mentioned in para 4.1 of the Original Application and likewise, the petitioner-applicants in Writ Petition No. 2542/2007 were appointed on 8.8.1980 and 6.12.1980, respectively on ad hoc basis on the post of CG-II. Their names were sponsored through the Employment Exchange and a duly constituted Selection Committee held the selections in which all the petitioner-applicants were found successful. As per the Recruitment Rules, the recruitment for the post of CG-II was to be made through the Staff Selection Commission (in short, the SSC). The vacancies were intimated to the SSC for nomination of qualified candidates. The SSC could not provide the qualified candidates, and thus in order to run the Stations smoothly, some persons including the petitioner applicants were appointed on ad hoc basis with the approval of the SSC. The appointment letters issued to all ad hoc employees contained specific riders/conditions namely that one cannot be appointed on regular basis until his name is sponsored by the SSC; and that their services can be terminated without notice or disclosing reasons; and further that it will not confer any right on them of regular appointment. It was also clearly stipulated that the period of their service on ad hoc basis will not be counted for seniority in service.

The petitioners were thereafter subjected to a special examination conducted by the SSC in the year 1982/1983 for the post of CG-II in which all the applicants qualified. They were regularized as CG-II on different dates in the years 1982, 1983 and 1984. All the petitioners have thereafter enjoyed subsequent promotions. It appears that one Asha Vadhwani filed O.A. No. 838/1989 on 21.10.1994 seeking regularization from the date of her initial appointment on ad hoc basis. Relying upon the Supreme Court judgment in State of Haryana and others Vs. Piara Singh and others etc. etc., and H.C. Puttaswamy and others Vs. The Hon''ble Chief Justice of Karnataka High Court, Bangalore and others, , the Central Administrative Tribunal directed to consider her regularization on the post of CG-II from the date of her initial appointment. The orders were carried out. Following the orders in Asha Vadhwani''s case, other similarly situated employees were also granted relief by the Central Administrative Tribunal subsequently in O.A. No. 3/1989 "Dilip Kumar vs. UOI" by order dt. 9.7.1993 and in O.A. No. 257/2001 "K.P. Bissa vs. Union of India" by order dated 19.9.2002.

It was contended that since similarly placed persons have been granted relief of regularization from the date of their initial appointment, the petitioner-applicants should also be granted the same relief. They were representing the matter continuously and it was only after their claim was not considered that they filed Original Applications in the Tribunal in the year 2005 claiming same relief.

The Tribunal found that the cause of action had arisen to the applicants in the year 1982/1983, when they were regularized without any benefit of the past services on ad hoc basis. The Tribunal also held that in view of the legal position as explained by the Constitution Bench judgment in case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, , it was no longer possible for the Tribunal to grant relief contrary to the judgment of the Constitution Bench in which it was held that service benefits including the seniority cannot be given prior to the date, he/she was regularized on substantive vacancy.

The Tribunal instead of dismissing the claim on the ground of delay, also considered the plea of discrimination as against similarly situated employees and held that with the clarification of the law subsequent to the earlier decisions in the cases of Asha Vadhwani, K.P. Bissa & others and Dilip Kumar & Ors. rendered prior to judgment in Secretary to State of Karnataka vs. Uma Devi in the year 2006 that petitioner-applicants cannot be granted the relief of regularization from the date of their initial appointment.

Learned counsel for the petitioners has submitted that the petitioners have been grossly discriminated in service, whereas similarly placed persons, who were initially appointed on ad hoc basis and subsequently regularized after recommendation of the SSC, have been given service benefits from the date of their initial entry. The petitioners could not be discriminated on the ground of delay in approaching the Tribunal denying service benefits. He has relied upon the judgments of the Hon''ble Supreme Court in the case of Purnendu Mukhopadhyay and Others Vs. V.K. Kapoor and Another, and State of Karnataka and Others Vs. C. Lalitha, to support his submission.

Before considering the judgments cited at bar, we may observe that whereas the similarly placed persons were vigilant to enforce their claim, the petitioner-applicants waited for more than twenty years for their representations to be decided. There was a delay of 22 years in respect of the petitioner-applicants in approaching the Tribunal for grant of benefits of regularization of their service with effect from the date they were initially appointed. The delay has defeated their claims.

In any case, we find that once the law has been clearly settled by the Constitution Bench judgment of the Hon''ble Supreme Court in case of Uma Devi (supra), the Tribunal could not have overreached the law in granting relief on the ground of parity. In the present case, the petitioner-applicants were not appointed regularly. They were appointed on ad hoc basis with the permission of the SSC. They were not regularized in service. They were infact selected for regular appointment by the SSC in the year 1982-83, much after their appointment in 1980 on ad hoc basis. In the circumstances, the ratio of the judgment in Uma Devi''s case (supra) is applicable to them in which it has been held that the persons, who are regularized, are not entitled to the benefits of the services rendered in the past on ad hoc basis.

In Purnendu Mukhopadhyay''s case (supra), the appellant had become entitled to grant of benefits by virtue of a judgment of the court of law, and thus it was held that implementation of the judgment should not be denied on the ground that subsequently, the law has changed. The State cannot treat employees similarly situated for giving benefit of the judgment differently. It cannot implement the order for some employees and refuse to do so for others.

In State of Karnataka vs. C. Lalitha (supra), the Hon''ble Supreme Court had considered the scope of Articles 14 & 16 of the Constitution, where keeping in view the parity in employment, the persons similarly situated were directed to be treated similarly irrespective of the fact that only one person had approached the court. In para 29 of the judgment, the Hon''ble Supreme Court held as under:

"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."

In the present case, we find that the petitioner-applicants were trying to get their rights enforced only through representation to the authorities. They filed their claim petitions before the Tribunal at a belated stage. Moreover, the law was not clear as to whether they could be given benefit of the ad hoc services prior to their regularization.

As discussed above, we find that the petitioner-applicants'' services were not regularized on giving them benefit of their past services which they had rendered on ad hoc basis. All the petitioner-applicants were appointed on ad hoc basis in the exigency of service for managing the Stations with the permission of the SSC with express condition in their appointment letters that their appointment will not confer any right for regular appointment and that the period of the ad hoc services will not be counted for seniority. They came to be appointed regularly in substantive capacity after a special examination was conducted by the SSC in the year 1982/1983. They could not have therefore claimed the benefit of the period of ad hoc services for seniority or for any other purpose in view of the condition imposed in the initial appointment letter.

We are not at issue as to whether the Tribunal had erred in law in granting the relief to Asha Vadhwani, K.P. Bissa and Dilip Kumar, as the petitioner-applicants did not challenge the orders of the Central Administrative Tribunal in these cases. The petitioner-applicants, even if they were similarly placed and claimed parity, did not have any right to get their period of ad hoc services counted in view of the express terms of appointment and their subsequent selection. The Constitution Bench judgment in Uma Devi''s case (supra) has clarified the law. The petitioner-applicants waited for more than two decades to approach the Tribunal, and thus acquiesced to their position. The parity, if any, could be claimed only if they were vigilant and in any case, now since we have held that none of these persons were entitled to get the period of their service on ad hoc basis counted, the petitioner-applicants were not entitled to any relief.

In the facts & circumstances, we are of the view that petitioner-applicants had not only lost their rights by way of acquiescence, they were even otherwise also not entitled to such relief and, thus, there is no question of claiming parity with other employees.

In view of the aforesaid, both the Special Appeals are dismissed.

A copy of this order be placed in the file of DBCWP No. 2542/2007.