Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision: 18 December, 2023
+ W.P.(C) 16333/2023, CM APPLs. 65738/2023, 65739/2023 &
65740/2023
(57) RAJIV RATAN SINGH AND ANOTHER
..... Petitioners
Through: Mr. S.K. Gupta, Adv.
versus
UNION OF INDIA AND OTHERS
..... Respondents
Through: Mr. Ravi Prakash, CGSC with
Mr. Farman Ali, Mr. Taha Yasin,
Advs. with Mr. Amit Acharya, GP
for R-1 & R-2
Mr. Naresh Kaushik and
Mr. Anand Singh, Advs. for R-3
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
V. KAMESWAR RAO, J. (ORAL)
CM APPL. 65739/2023 (for exemption)
Exemption allowed subject to all just exceptions.
Application stands disposed of.
CM APPL. 65740/2023
This is an application filed by the petitioners seeking
permission to file additional documents on record.
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For the reasons stated in the application, the same is
allowed and the additional documents filed by the petitioners are
taken on record. The application is disposed of.
W.P.(C) 16333/2023, CM APPL. 65739/2023
1. The challenge in this writ petition is to an order dated
December 4, 2023, passed by the Central Administrative Tribunal
Principal Bench, New Delhi (‘Tribunal’, for short) in Original
Application No.329/2023 (‘OA’, for short) whereby the Tribunal has
dismissed the OA filed by the petitioners herein by stating in
paragraphs 9.1 onwards as under:
“9.1 In the instant case, it is clearly on record that this
prescribed procedure has not been followed and,
therefore, the promotions have been termed as purely ad
hoc. It is also an accepted fact that ad hoc promotions
are distinct from regular promotions and the former does
not confer upon any employee the benefit of regular
promotion.
9.2 The contention of the applicants that the ad hoc
promotions had to be resorted to due to certain legal
implications in terms of N.R. Parmar’s case (supra) etc.
and, therefore, they should be given the benefit of ad hoc
promotions for the said period to be counted as regular
promotions, is not tenable. The applicants were promoted
as ACIT on ad hoc basis vide order dated 07.04.2016
which clearly states that they shall continue to discharge
the functions of the lower post, i.e., ITO only.
9.3 Although citations have been provided by learned
counsel for both the parties, yet the facts of the current
matter and rules regarding ad hoc and regular
promotions leave no doubt about the categorical
difference between ad hoc and regular promotions.
Hence, the citations do not have a direct bearing on the
facts of the present case.
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9.4 In conspectus of the facts brought out above, we do
not find any merit in the contentions of the learned
counsel for the applicants. Accordingly, we dismiss the
OA being devoid of merit.
10. No order as to costs.”
2. The petitioners had challenged the order dated July 15, 2022,
whereby the respondents have rejected the request made by the
Association of Officers for relaxation in length of qualifying service for
grant of Senior Time Scale.
3. The facts as noted from the petition are that the petitioners were
selected and appointed as Income Tax Inspectors in the year 1992.
About ten years thereafter they were promoted to the post of Income
Tax officer in 2001. They became due for promotion to the post of
Assistant Commissioner of Income Tax (ACIT).
4. It is an admitted position that the post of ACIT did not take
place for quite some time. In any case, the petitioners herein were
promoted as ACIT on adhoc basis, vide order dated April 07, 2016. The
regular DPC was convened in 2019 and vide order dated May 16, 2019,
the petitioners herein were promoted to the post of ACIT on a regular
basis. In the context of promotion to the post of Deputy Commissioner
of Income Tax, four years of standing in the feeder category, i.e, ACIT.
The petitioners insisted that the service rendered by them from April 07,
2016 onwards is required to be counted for determining their eligibility
for promotion to the post of Deputy Commissioner of Income Tax.
5. They made a detailed representation on May 28, 2019, as no
orders were passed thereon, they filed OA No.3331/2019 with a prayer
to declare the action of the respondents in not considering the cases of
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the petitioners for promotion to the post of Deputy Commissioner of
Income Tax in the DPC held in December, 2018 as illegal and arbitrary
and to direct the respondents to count their service from the date on
which they started functioning as ACIT, for determining their eligibility
for further promotion. The stand of the respondents in the aforesaid OA
was that the service rendered by the petitioners from April 07, 2016,
could not be treated as valid for promotion to the next higher post as the
aforesaid promotion was not on the basis of selection by UPSC and the
arrangement was made purely on ad hoc basis.
6. The Tribunal while disposing off the OA had directed the
respondents to pass orders on the representation dated May 28, 2019
within a period of eight weeks. Pursuant thereto, the respondents issued
an order dated July 15, 2022, rejecting the representation filed by the
petitioners by stating that the persons appointed on ad hoc basis to a
grade are to be replaced by persons approved for regular appointment
by direct recruitment, promotion or transfer (absorption), as the case
may be, at the earliest opportunity. Thus, at no stage these instructions
provide for counting of ad hoc service as qualifying service for
promotion to the next grade. We have already reproduced the findings
of the Tribunal while rejecting the OA.
7. It is noted that in the year 2014-15, a communication was sent
to the UPSC for convening a DPC for promotion to the post of ACIT.
After a round of correspondence between UPSC and the respondent-
department, UPSC pointed out about framing a seniority list of ITOs on
the basis of judgment of the Apex Court in N.R. Parmar’s case (supra).
It is noted that the Commission, vide letter dated March 26, 2016,
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directed the department to seek comments of DoP&T and Department
of Law and Justice keeping in view the pending litigations as to whether
convening of DPC to consider promotion to the post of ACIT on the
basis of old seniority list, which has not been revised in accordance
with the decision in N.R. Parmar’s case (supra), would not be in
violation of any court order.
8. It was only after obtaining the opinion / advice of DoP&T and
DoLA, the department again discussed the proposal for convening DPC
under ‘Single Window System’ on November 10, 2016 with UPSC. The
Commission observed that DoP&T vide its OM dated September 30,
2016 had stated that no further promotions of reserved categories
persons to unreserved posts will be made based on the OM dated
August 10, 2010 which pertains to promotion of officers belonging to
SC / ST categories on their own merit.
9. The case of the respondents is pursuant to the decision in the
SLP(C) Nos.31288/2017 and 28306/2017, the DoP&T had issued OM
dated June 15, 2018, to all Cadre Controlling Authorities of Central
Government Ministries, Departments and Union Territories to carry out
promotions in accordance with the directions of the Apex Court.
Accordingly, the department revised the earlier proposal for making
promotion to the grade of ACIT for the year 2014-15 on a regular basis
and forwarded the same to UPSC on December 13, 2018.
10. It appears that the matter was again referred to DoP&T seeking
opinion / comments as sought by UPSC. It is also stated that a reference
has also been made to the judgment of this Court in W.P.(C) 3087/2016
& 8443/2016, in Ms. Veena Kothawale to hold that the judgment of the
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Supreme Court in N.R. Parmar (supra) cannot be applied in a manner
which unsettles the settled seniority.
11. The decision in Ms. Veena Kothawale’s case (supra) attained
finality as the Apex Court dismissed the SLP. Therefore, in light of the
said judgment, the department intimated the same to UPSC in February,
2019 with a request to convene a DPC for promotion to the grade of
ACIT against the vacancy year 2014-15. It is pursuant thereto, the
petitioners were given promotion.
12. Mr. S.K. Gupta, learned counsel for the petitioners would
submit that the Supreme Court in the case of Direct Recruit Class-II
Engineering Officers’ Association v. State of Maharashtra, 1990 (2)
SCC 715 , has held 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 regularization of his service in accordance
with the rules, the period of officiating service will be counted.
13. The Tribunal was of the view that the procedure which is
contemplated under the Rules has not been followed. Therefore, the
promotions which were made initially in the year 2015 have been made
as purely ad hoc . It was also of the view that the ad hoc promotions are
distinct from regular promotions and the former does not confer upon
any employee the benefit of regular promotion.
14. On the other hand, Mr. Farman Ali, Advocate / Mr. Ravi
Prakash, CGSC appearing for the respondents has relied upon the
judgment of the Supreme Court in the case of Malook Singh and Ors.
v. State of Punjab and Ors., 2021 SCC OnLine SC 876, to contend that
even the Supreme Court considering the judgment in the case of Direct
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Recruit Class-II Engineering Officers’ Association (supra) has in
paragraph 21 held as under:
“21. The decision in Direct Recruits (supra) stands for
the principle that ad hoc service cannot be counted for
determining the seniority if the initial appointment has
been made as a stop gap arrangement and not
according to rules. The reliance placed by the Single
Judge in the judgment dated 6 December 1991
on Direct Recruits (supra) to hold that the ad hoc
service should be counted for conferring the benefit of
seniority in the present case is clearly misplaced. This
principle laid down in Direct Recruits (supra) was
subsequently followed by this Court in Keshav
15
Chandra Joshi v. Union of India . Recently a two
judge Bench of this Court in Rashi Mani
16
Mishra v. State of Uttar Pradesh , of which one of us
(Justice DY Chandrachud) was a part, observed that
the services rendered by ad hoc employees prior to
their regularization cannot be counted for the purpose
of seniority while interpreting the Uttar Pradesh
Regularization of Ad Hoc Appointment Rules. This
Court noted that under the applicable Rules,
“substantive appointment” does not include ad hoc
appointment and thus seniority which has to be
counted from “substantive appointment” would not
include ad hoc service. This Court also clarified that
the judgment in Direct Recruits (supra) cannot be
relied upon to confer the benefit of seniority based on
ad hoc service since it clearly states that ad hoc
appointments made as stop gap arrangements do not
render the ad hoc service eligible for determining
seniority. This Court speaking through Justice MR
Shah made the following observations:
“36. The sum and substance of the above
discussion would be that on a fair reading of the
1979 Rules, extended from time to time; initial
appointment orders in the year 1985 and the
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subsequent order of regularization in the year
1989 of the ad hoc appointees and on a fair
reading of the relevant Service Rules, namely
Service Rules, 1993 and the Seniority Rules, 1991,
our conclusion would be that the services
rendered by the ad hoc appointees prior to their
regularization as per the 1979 Rules shall not be
counted for the purpose of seniority, vis-à-vis, the
direct recruits who were appointed prior to 1989
and they are not entitled to seniority from the date
of their initial appointment in the year 1985. The
resultant effect would be that the subsequent re-
determination of the seniority in the year 2016
cannot be sustained which was considering the
services rendered by ad hoc appointees prior to
1989, i.e., from the date of their initial
appointment in 1985. This cannot be sustained
and the same deserves to be quashed and set aside
and the seniority list of 2001 counting the services
rendered by ad hoc appointees from the date of
their regularization in the year 1989 is to be
restored.
37. Now so far as the reliance placed upon the
decision of this Court in the case of Direct Recruit
Class II Engg. Officers' Assn. (supra), relied upon
by the learned Senior Advocate appearing on
behalf of the ad hoc appointees is concerned, it is
required to be noted that even in the said decision
also, it is observed and held that where initial
appointment was made only ad hoc as a stop gap
arrangement and not according to the rules, the
officiation in such post cannot be taken into
account for considering the seniority. In the case
before this Court, the appointments were made to
a post according to rule but as ad hoc and
subsequently they were confirmed and to that this
Court observed and held that where appointments
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made in accordance with the rules, seniority is to
be counted from the date of such appointment and
not from the date of confirmation. In the present
case, it is not the case of confirmation of the
service of ad hoc appointees in the year 1989. In
the year 1989, their services are regularized after
following due procedure as required under the
1979 Rules and after their names were
recommended by the Selection Committee
constituted under the 1979 Rules. As observed
hereinabove, the appointments in the year 1989
after their names were recommended by the
Selection Committee constituted as per the 1979
Rules can be said to be the “substantive
appointments”. Therefore, even on facts also, the
decision in the case of Direct Recruit Class II
Engg. Officers' Assn. (supra) shall not be
applicable to the facts of the case on hand. At the
cost of repetition, it is observed that the decision
of this Court in the case of Direct Recruit Class II
Engg. Officers' Assn. (supra) was considered by
this Court in the case of Santosh Kumar (supra)
when this Court interpreted the very 1979 Rules.”
(emphasis supplied)
15. According to them, the Supreme Court has clearly held that the
judgment in Direct Recruit Class-II Engineering Officers’ Association
(supra) stands for the principle that ad hoc service cannot be counted
for determining the seniority if the initial appointment has been made as
a stop gap arrangement and not according to rules.
16. It is a conceded case that the ad hoc promotion which was
given in the year 2015 was not through the process of UPSC. It is only
in the year 2019 that the UPSC had held DPC and recommended the
petitioners for promotion. In that sense, the reliance placed by Mr.
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Gupta on the judgment of the Supreme Court in the case of Direct
Recruit Class-II Engineering Officers’ Association (supra) shall not
help the case of the petitioners.
17. We are of the view that the Tribunal has rightly rejected the OA
filed by the petitioners herein.
18. The writ petition being without any merit, the same is
dismissed. No costs.
CM APPL. 65738/2023
Dismissed as infructuous.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J
DECEMBER 18, 2023 /aky
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