S.C.Suresh v. Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/35/2023 S. C. Suresh Vs.

The Union of India and others Mr. Gopala Binnu Kumar ... for the petitioner Mr. Shatardu Chakraborty Mr. Dibesh Dwivedi ... for the Administration November 22, 2023 [SR] Item No.10 1.

This writ petition is arising out of an order passed by the learned Central Administrative Tribunal, Kolkata Bench, Calcutta on 19th April, 2023 in connection with an application under section 19 of the Administrative Tribunal Act, 1985 in which the writ petitioner has prayed for modification of the order no. 1551 dated 22nd April, 1997 whereby the service of the applicant/petitioner was regularized on and from 13th February, 1997 instead of 5th April, 1995 to the extent that the service of the applicant/writ petitioner is regularized on and from the initial date of appointments i.e. 5th April, 1995. 2.

The learned Tribunal, on consideration of the materials on record and the affidavits filed by the parties rejected the claim of the petitioner/applicant on the ground that the initially appointment was on ad hoc basis i.e. 05th April, 1995 and this cannot be considered to be his initial appointment for the post.

3.

The leaned Tribunal has also taken into consideration that the ad hoc appointment was for a period of six months

and the letter of appointment has clearly stated that such appointment shall not confer any right or claim for regular appointment.

4.

Learned counsel for the petitioner submits that although his appointment may not be on the basis of a notification but he was appointed against the sanctioned post and at the relevant time there is a draft recruitment rules on the basis whereof his application was processed, hence, the service of the writ petitioner is required to be confirmed on and from 05th April, 1995 when he was appointed on an ad hoc basis. 5.

The learned counsel has also relied upon the decision of a Coordinate Bench in WPCT No.666 of 2012 (shri J.Loknathan and others vs. Union of India and others) on April 9, 2013 which one of us was a party (Soumen Sen, J.) to emphasis that since he was appointed against the sanctioned post, the initial ad hoc appointment should not stand in the way for the purpose of computing his length of service from the date of his initial appointment on ad hoc basis and he would be entitled to all service benefits from the initial date of appointment on ad hoc basis.

6.

The said submission was not acceded to by the Tribunal for the simple reason that the office order No.1173 dated 5th April, 1995 has clearly stated that the adhoc appointment was initially for a period of six months or till further order whichever is earlier and such appointment would not confer any right or claim for regular appointment and the service shall be terminated after expiry of six months without assigning any reason thereof.

7.

Indisputably the petitioner was recommended for appointment provisionally for the post of Signalman ( Junior) subject to the condition of his passing swimming test. The minutes of the Selection Committee, referred in the impugned order, also clearly shows that the present petitioner and Mr.S.C.Sudhir were recommended for appointment to the post of Signalman on an ad hoc basis.

8.

It was, on the basis of the aforesaid recommendation that the appointment on adhoc basis was made by the office order No.1173 dated 5th April, 1995. The service of the applicant/petitioner was extended from time to time for a period of six months with the approval of the Andaman and Nicobar Administration. Eventually on the recommendation of the Group 'C' Selection Committee on 8th April, 1995, the ad hoc service of the present petitioner was regularized on 22nd April, 1997 with with effect from 13.02.1997. 9.

In Shri J. Loknathan and others (supra), the writ petition has preferred by 191 persons claiming to be the Daily Rated Mazdoors (DRMs), all working under the Electricity Department, Andaman and Nicobar Administration. They were seeking declaration to the effect that the order of regularization by way of fresh appointment in the post of Mazdoors without counting their past services for monetary benefits is contrary to law and against the award dated 25th January, 2001 passed by the learned Industrial Tribunal. About 500 DRMs were retrenched suddenly on 01st April, 1997 that had resulted in an industrial dispute and on reference being made to the Industrial Tribunal passed an award

declaring that the action of disengagement of 511 DRMs workmen from the service of the respondent authority amounts to retrenchment and the Administration is directed reinstate them with immediate effect in the same category in which they were employed immediately before their retrenchment and such workmen would be treated to be in continuous service only for the purpose for getting consequential service benefits, if any, notionally which they would have earned had there been no retrenchment. 10.

The issue before the Hon'ble Division Bench was with regard to the entitlement of the writ petitioner to pensionary benefits from the date of the their initial engagement and not from the prospective date of regularization. In the aforesaid background the writ petition was disposed of with the following observations:

"It is not in dispute that immediately before their retrenchment, they were acting as DRMs and in view of the observations made by the Tribunal, it appears that all of them would have become eligible for being considered for regularization of their service with the respondent authorities. It was in implementation of the Award that the steps have been taken for creation of posts and absorption of such DRMs and TSMs.

We feel that if the said petitioners have worked continuously for a period of more than ten years and since some of them had already put in considerable period from their date of initial engagement and would be retiring shortly, considering the constitutional obligations and duties case upon the said respondent authorities it would be just and fair that for the purpose of retrial benefits their service should be counted from the date of their respective joining/engagement and not from the date of regularization. The services of the petitioners also foes not found to be unsatisfactory. A seniority list has been prepared also on the basis of their initial engagement.

This, we feel, would be keeping in consonance with the socialistic goal which the nation is committed to achieve and adhere to in view of the preamble of the Constitution and fundamental rights enshrined in the Constitution. The authorities concerned acting as model employer in view of the aforesaid facts and circumstances are required to extend such benefits to such employees".

11.

The learned counsel for the Administration has submitted that in Lieutenant Governor, through the Secretary,A & N & others vs. Parimal Halder and another in SLP (C) No.31187/2013, possibly the MACP Scheme of 2009 was not considered. It is submitted that the Office Memorandum dated 19th May, 2009 in clause 3 has specifically excluded the casual employees including those granted temporary status and employees appointed in the government only on adhoc or contract basis for the purpose of extending benefits of the said scheme.

12.

The learned counsel has also referred to the clause 9 of the MACP Scheme which defines the "regular service". The said clause reads as follows:

"9. 'Regular Service' for the purpose of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department in a post carrying same grade pay prior to regular appointment in a new Department, without a break, shall also be counted towards qualifying regular service for the purposes of MACPS only (and not for the regular promotions). However, benefits under the MACPS in such cases shall not be considered till the satisfactory completion of the probation period in the new post."

13.

It is thus submitted that the service rendered on ad hoc basis before regular appointment on pre-appointment training shall not be taken into reckoning. The contention of Mr.Chakraborty is that in view of the aforesaid specific provision, the benefit of reckoning the past service of the writ

petitioner from the date of his initial appointment on adhoc basis cannot be counted.

14.

Mr. Gopala Binnu Kumar the learned counsel appearing on behalf of the writ petitioner has submitted that the petiotner is in fact covered by the ACP existing prior to 2009 since he was appointed in the year 1994 and in any event, on a meaningful reading of clause 9, the past service is required to be reckoned for the purpose of giving financial benefits. In any event the claim is not based on the MACP Scheme. 15.

However, the clause referred to by Mr. Chakraborty to deny the benefit to the petitioner, a meaningful reading show that the casual employees appointed on ad hoc basis shall not be qualified for the benefit under the MACP Scheme which, in our understanding, would not cover the situation where an employee appointed is against a pay scale and not on fixed scale.

16.

The Hon'ble Supreme Court in Lieutenant Governor, through the Secretary, A &N Administration and others vs. Parimal Halder and another being SLP to Appeal (C) No.31187 of 2013 on 13.01.2015 in which it was held:- " Since the appointment of the respondents from the very beginning was in a pay scale, not on a fixed pay, we are of the view, that the High Court was fully justified in allowing pay fixation to the respondents, with effect from the date of their appointment in the first instance on ad hoc basis."

17.

The petitioner has not challenged the MCAP Scheme of 2009. The contention of the petitioner before the Tribunal appears to be that his pay fixation should be from the date of

his appointment on adhoc basis. We may not have to go into the scheme at all for the purpose of extending any financial benefit to the writ petitioner based on the scheme . The issue with regard to the entitlement of an employee appointed on an adhoc basis against the pay scale as opposed to any fixed pay, was considered by the Hon'ble Supreme Court.

18.

The initial appointment of the petitioner was admittedly on ad hoc basis, but the office order No.1173 dated 5th April, 1995 unerringly indicates that from the very beginning he was in a pay scale of Rs.1200-30-1560-EB-40-2040 and not on a fixed pay. In consonance with the judgment in Parimal Halder (supra) we are of the view that the petitioner is entitled to pay fixation with effect from the date of his appointment in the first instance on ad hoc basis. But he cannot be granted the benefit of seniority with effect from 05.04.1995 - the date of his appointment on ad hoc basis.

19.

Under such circumstance, the writ petition, being WP.CT/35/2023 is allowed. However, there shall be order as to costs.

20.

The Administration shall comply with this order within a period of six weeks from date.

21.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.

( Soumen Sen, J. ) ( Siddhartha Roy Chowdhury, J. )