HON'BLE MR. K GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. This O.A has been filed by the applicant challenging Annexure A-6 Office Memorandum F.No. 14/2/2008-Plg./471 dated 23.06.2009 rejecting his request to regularise his ad hoc promotion as Research Assistant with effect from 01.10.1999 and to regularise him as Research Assistant from the date of his appointment and to consider his 3rd financial upgradation under the MACP Scheme.
2. The applicant joined the Department of Employment and Training, Kavaratti, Union Territory of Lakshadweep as Statistical Assistant on 14.01.2980. He was promoted as Research Assistant on ad hoc basis with effect from 01.10.1999. He was regularised from 02.01.2009, i.e. the date of sitting of DPC, in the grade of Junior Employment Officer, which was in the same grade of Research Assistant to which he was promoted in the year 1999. The applicant represented to the 3rd respondent to regularize his promotion to the grade of Research Assistant with effect from 01.10.1999. It was rejected by the order dated 23.06.2009. Hence the O.A.
3. The applicant submits that the refusal on the part of the respondents to regularise the ad hoc service rendered by him for almost 10 years is absolutely illegal and arbitrary. 6 other persons were regularised in service from the date of their appointment and promotion. Non regularisation of applicant's service is discriminative in nature. The applicant relied on the decisions of the Hon'ble Supreme Court in State of Haryana vs, Ghaseeta Ram, AIR 1997 SC 1868 and in Rudra Kumar Sain vs. Union of India, (2000) 8 SCC 25, and also similar cases decided by this Tribunal produced as Annexures A-7, A-8 and A-9.
4. The respondents opposed the O.A. It was submitted on their behalf that the case of the applicant was processed on 04.04.2002 for regular promotion as Research Assistant. But due to multifarious official engagements of the Chairman and Members of the DPC, the DPC could not be convened. This process continued till 04.01.2009. Non submission of the ACRs by the applicant for the years 2005-06, 2006-07 and 2008-09 and the option to be exercised by him also caused the delay in processing his case. As per para 17.10 of Chapter 54 of Swamy's Complete Manual on Establishment and Administration for Central Government Offices (10th Edition 2006) read together with G.I., Department of personnel and Training O.M. No. 22011/5/86-Estt.(D) dated 10.04.1989 as amended by O.M. No. 22011/5/91-Estt.(D) dated 27th March, 1997, the general principle is that the promotion of officers included in the panel would be regular from the date of validity of the panel or the date of their actual promotion, whichever is later. The respondents distinguished the Annexure A-7 order of this Tribunal as not applicable to the the instant case as also the orders at Annexures A-3 and A-4.
5. In the rejoinder filed by the applicant, it was submitted that in Annexure R-2(b) it was stated that the applicant was the senior-most Statistical Assistant to be considered for the vacancy existing from 01.10.1999. From this, it was clear that the applicant was eligible for regularisation in the post of Research Assistant from 1999 onwards. The frequency of DPC meeting as per Chapter 3 of Swamy's Complete Manual on Establishment and Administration for Central Government Staff (36th Edition 2010) FRandSR "the DPC should meet at regular annual intervals to draw panels to be utilised for promotions over a year". The respondents had regularised the appointment of 10 co-operative Inspectors as per Annexure A-10.
6. In the additional reply statement, the respondents submitted that the applicant had been awarded the 3rd financial upgradation with effect from 14.01.2010 by which date he had completed 30 years of service.
7. We have heard Ms. Jancy Alex, learned counsel for the applicant and Mr. Sunil Jacob Jose, SCGSC for respondent No.1 and Mr. S. Radhakrishnan, learned counsel appearing for respondents No. 2 and 3 and perused the material on record.
8. As the applicant had been granted 3rd financial upgradation under MACP Scheme on completion of 30 years of service, what remains to be considered is the relief of regularisation of the applicant with effect from 01.10.1999.
9. The instant O.A. is squarely covered by the order of this Tribunal in O.A. No.892/2003 decided on 26.09.2006 (Annexure A-8). The operative part of the aforesaid order is reproduced as under:
"13. The O.A. therefore succeeds. The impugned orders 20-11-2002 (Annexure A-2) are all quashed and set aside. It is declared that all the applicants are entitled to have their promotion to the post of Boat Drivers on regular basis with effect from the date of their ad hoc promotion and not from the date the DPC met and their seniority shall also be accordingly revised. Any other consequences emanating from such retrospective promotion shall also be available to the applicant.
14. As this is the second round of litigation and the failure on the part of the respondents to apply their mind properly in deciding the issue is the cause for the applicants being forced to approach the Tribunal, the applicants are entitled to costs. Respondent No. 3 is directed to pay a cost of Rs 2,000/- to each of the applicants. This order shall be complied with, within a period of two months from the date of communication of this order."
10. This order was challenged before the Hon'ble High Court of Kerala in Writ Petition No. 12039/2007, but it was dismissed on 31.07.2007 after deleting the direction of this Tribunal to pay costs to the applicants therein. Again, this Tribunal reiterated that the period of service rendered by the applicants on ad hoc basis as Boat Driver/Engine Crew should be treated as regular service in the order dated 12.03.2009 in O.A. No. 272/2007 (Annexure A-9). The operative part of the said order reads as under:
"6. In view of the above position, we allow this O.A and quash and set aside Annexure A-11 Office Order dated 6.9.2006 to the extent that the applicants' promotions on regular basis as Boat Drivers was only with effect from 30.8.2006 ie the date from which the DPC met and recommended their names. Similarly, Annexure A-13 Office Memorandum dated 12.12.2006 rejecting their representations for retrospective promotions is also quashed and set aside. We declare that the period of service rendered by the applicants on ad hoc basis as Boat Driver/Engine Crew shall be treated as regular service. Consequently the respondents are directed to issue revised promotion order in respect of the applicants as Boat Drivers on regular basis taking into consideration their entire service rendered as Engine Crew/Deck Crew on ad hoc basis. The seniority list of the Engine Crew/Deck Crew and Boat Driver shall also be revised accordingly assigning them position above the respondents No.5 to 8.
7. The aforesaid directions shall be complied with, within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs."
The respondents have maintained a studied silence in regard to Annexures A-8 and A-9 orders of this Tribunal in their reply statement. The ratio in the above orders applies to the present case.
11. The Apex Court in the case of State of Haryana vs, Ghaseeta Ram, AIR 1997 SC 1868, held that "the official cannot be deprived of the benefits of the long continuous officiation or any other benefit as he would have received, if the 'right thing' had been done at the 'right time'." Again, Hon'ble Supreme Court in Rudra Kumar's case (supra) held that "In the service jurisprudence, a person who possess the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc".
12. The applicant had continuous officiation in the grade of Research Assistant for about 10 years. The appointment for such a long period cannot be held as purely ad hoc appointment. It is common knowledge that the general principle with regard to ad hoc appointment is that it should not exceed one year. As on 01.10.1999, there was a clear vacancy available for the applicant and he was qualified for appointment. He continued to officiate in the vacant post or in the same grade from 1999 to 2009. The appointing authority regularised him in 2009 in the grade of Junior Employment Officer which was in the same grade as of Research Assistant to which he was promoted on ad hoc basis in 1999. Applying the ratio of the decisions of the Apex Court, as the officiation of the applicant continued for about 10 years, his appointment cannot be held to be purely ad hoc and he cannot be denied the benefit of regularisation. Because of the long delay in holding the DPC, this case cannot be treated as an ordinary case wherein the said general principle would apply.
13. On the one hand, the respondents disregard the instruction to hold DPC every year and on the other hand, they raise a general principle to deprive the applicant of the benefit of the long continuous officiation. The selective application of the general principle that the promotion of officers included in the panel would be regular from the date of validity of the panel or the date of their actual promotion, whichever is later, in the facts and circumstances of the instant case, is arbitrary and unjust.
14. In Annexure R-2(b) self contained note dated 04.04.2002, it is stated that "Shri P.P. Atta is the senior most Statistical Assistant to be considered for the vacancy as he is now working on ad hoc basis against the existing vacancy from 01.10.1999." On the date of this note, there was no complaint regarding non submission of ACRs by the applicant. In Annexure R-2(k) also, there is no mention about applicant's non submission of ACR. The reason for the long delay in holding the DPC, as stated by the respondents, was due to multifarious official engagements of the Chairman and Members of the DPC. This stand of the respondents is contrary to the instruction that the DPC should meet at regular annual intervals to draw panels to be utilised for promotions over a year. Further, the respondents have not substantiated that there was delay on the part of the applicant in submitting the self appraisal part of the ACRs. If there was any delay in submitting his option, that is not a sufficient reason for not holding the DPC.
15. The Apex Court in the case of P.N. Premachandran v. State of Kerala, (2004) 1 SCC 245, held as under:-
"It is not disputed that in view of the administrative lapse, the Departmental Promotion Committee did not hold a sitting from 1964 to 1980. The respondents cannot suffer owing to such administrative lapse on the part of the State of Kerala for no fault on their part. It is also not disputed, that in ordinary course they were entitled to be promoted to the post of Assistant Director, in the event, a Departmental Promotion Committee had been constituted in due time. In that view of the matter, it must be held that the State of Kerala took a conscious decision to the effect that those who have been acting in a higher post for a long time, although on a temporary basis, but were qualified at the time when they were so promoted and found to be eligible by the Departmental Promotion Committee at a later date, should be promoted with retrospective effect."
16. Following the ratio of the above decision of the Apex Court, the applicant herein should not be made to suffer owing to the administrative lapse on the part of the respondents. The delay on the part of the respondents to hold the DPC in time cannot be countenanced.
17. In the result, the O.A is allowed. The impugned order at Annexure A-6 dated 23.06.2009 is quashed and set aside. It is declared that the applicant is entitled to have the period of ad hoc service in the grade of Research Assistant from 01.10.1999 to be counted as regular service for all purposes. The respondents are directed to regularise the applicant as Research Assistant with effect from 01.10.1999, within a period of two months from the date of receipt of a copy of this order. No order as to costs.