Ch. Narayana Rao Vs.
Union of India & Ors.  INSC 729 (10 September 2010)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7903 OF 2010 [Arising out
of S.L.P.(C)No.16355 of 2007] Ch. Narayana Rao ....Appellant Versus Union of
India & Ors. ....Respondents
Deepak Verma, J.
continual riven for seniority with regard to ad-hoc service rendered by the
Appellant from the year 1981 till his regularisation in the year 1992 is
required to be adjudicated in this Appeal by this Court. Further, we are called
upon to consider whether the Appellant can be treated as Regular Stenographer
(OG - Ordinary Grade) from the year 1981 itself.
appeal arises from the judgment and order dated 19.02.2007 passed by Division
Bench of the High Court of Judicature, Chhattisgarh at Bilaspur, in Appellant's
Writ Petition No. 388 of 2002, wherein and whereunder he had C.A. @
S.L.P.(C)No.16355/07 ... (contd.) - 2 - challenged the order of the Central
Administrative Tribunal, Principal Bench, Delhi, (hereinafter shall be referred
to as 'Tribunal') passed in O.A. No. 413 of 1999 dated 02.07.2001.
By the order of the
Tribunal, the Appellant's Original Application filed by him claiming seniority
for the period he had worked on ad-hoc basis till his regularisation was
rejected. The order of the Tribunal has been affirmed by the Division Bench of
the High Court by dismissing the Appellant's Writ Petition vide the impugned
judgment. Hence, this appeal.
matrix of the case lies in narrow compass:- Appellant was appointed on
26.11.1981 on the post of Stenographer (OG). His appointment was against a
temporary vacancy of stenographer, with the following rider:
is purely on an ad-hoc and temporary basis and his services may be terminated
any time without assigning any reasons."
his letter of appointment clearly stipulated that it was not only ad-hoc but
temporary too, terminable at any time without assigning any reasons.
However, he continued
in service, but after few years, an apprehension arose in the mind of the
Appellant and other similarly situated stenographers that their services may
be terminated. Thus, C.A. @ S.L.P.(C)No.16355/07 ... (contd.) - 3 - the
Appellant and others were constrained to approach the Jabalpur Bench of the
Tribunal by filing Original Application, claiming that the Respondent be
restrained from terminating their services and they be regularised. Tribunal
vide its order dated 23.10.1989 directed that the services of the Appellant and
other similarly situated stenographers, be not terminated, instead they be
regularised subject to qualifying requisite test. The operative part of the
order of the Tribunal is reproduced hereinbelow:- "The Government may
examine and review the position as whether it is possible to regularize the
services of these petitioners by relaxing the rule requiring their recruitment
through the Staff Selection Commission. If it is not considered feasible by the
Government, then we direct that the petitioners should be continued in service
and the respondents are restrained from terminating their services but two
opportunities be given to the petitioners to attain proficiency in Stenography
and clear the test with the requisite standard of speed in shorthand etc.
before their regularisation.
In other words their
appointments as stenographers will be treated as officiating appointment
although not confirmed but also not ad-hoc pending such a regularisation."
is clear from a reading of the aforesaid direction that the Respondents were
restrained from terminating the services of the Appellant and two opportunities
were directed to be given to the Appellant to clear proficiency test so C.A. @
S.L.P.(C)No.16355/07 ... (contd.) - 4 - that he becomes entitled for
regularisation. On the strength of the said order of Tribunal, his services
were not terminated and he continued in employment with the Respondents.
thereafter, qualified the proficiency test in Stenography conducted by the
Staff Selection Commission in 1992. Thus, he was regularised with effect from
12.04.1992, the date on which he was declared successful in the test. 50% of
his past service was also ordered to be counted for the purpose of computation
of pensionary benefits.
Appellant submitted his representation with the Chief Commissioner of Income
Tax, Bhopal on 06.08.1993 praying for regularisation of service from the date
of his initial appointment and treating his full ad-hoc service as qualifying
service for the purpose of pensionary benefits.
Since, no fruitful
results came forth on the Appellant's representation, he along with another
employee, similarly situated, was constrained to file another O.A. No. 413 of
1999 before the Principal Bench of the Tribunal at Delhi which came to be
allowed on 11.10.1999. It appears that while the said O.A. was heard, the
counsel for Respondents had remained absent. Thus, the order came to be passed
Department, therefore, filed M.A. No. 593 of 2000 C.A. @ S.L.P.(C)No.16355/07
... (contd.) - 5 - in the aforesaid O.A. before the same bench of the Tribunal
praying for the grant of opportunity to them to contest the proceedings and for
recall of the order dated 11.10.1999. The said M.A. was allowed by the Tribunal
on 04.01.2001 and the parties were directed to appear before the Tribunal on
07.03.2001 for re-hearing of the Appellant's Original Application. That is how
the matter was heard again by the Tribunal. The Tribunal passed its order on
02.07.2001, dismissing the Appellant's Original Application. It was this order
of the Tribunal which was challenged by the Appellant before the Division Bench
of the High Court by filing a Writ Petition, but that too met with the fate of
contention of the respondents from the very beginning had been that the
Appellant was one among several persons who were appointed as stenographers
(OG) on purely temporary and ad-hoc basis. However, they were given their
regular appointment as stenographers (OG) in the department only from the date
of passing the qualifying test with approval by the Staff Selection Commission.
All those who had been appointed alongwith Appellant were treated alike and
were given their regular appointment only from the date of their passing the
requisite test. Thus, no case of discrimination was made out by the Appellant
as likes were C.A. @ S.L.P.(C)No.16355/07 ... (contd.) - 6 - treated alike.
have also contended that the observations made by Jabalpur Bench of the
Tribunal in the Appellant's first O.A., could at best be treated as obiter as
the question before the Bench was only with regard to grant of injunction in
favour of the Appellant so that the services could not be terminated. Thus, any
observations made by the said Bench would not have a binding effect. Even
otherwise, it has been contended that the first order of the Tribunal clearly
stipulated that at the first instance the Respondents were restrained from
terminating the services of the Appellant and the Appellant was given
opportunity to appear in the test twice to qualify for the appointment on
regular basis. It has also been contended that passing of the requisite
examination was condition precedent for appointment on regular basis as per the
Income Tax Department (Group C Recruitment Rules, 1990), to be approved by the
Staff Selection Commission and there could not have been any deviation
therefrom. Unless the Appellant had successfully cleared the said test he could
not have been granted the benefits sought by him. As soon as he cleared the
said test, he was regularised from the date of his passing the examination,
that is on 12.04.1992. In other words, the Respondents have contended that the
Appellant C.A. @ S.L.P.(C)No.16355/07 ... (contd.) - 7 - alone cannot be
extended the benefit of regularisation of counting his service from the date of
his initial appointment, which was not only temporary but was ad-hoc also, as
the same may amount to hostile discrimination with other Stenographers who are
similarly situated. They have, therefore, contended that the Tribunal and the
High Court have taken a correct legal view of the matter, which calls for no
interference and appeal deserves to be dismissed.
have, accordingly, heard Mr. Sushil Kumar Jain and Mr. Puneet Jain, advocates
for the appellant and Mr. B.S. Chahar, Senior Advocate with Mrs. B. Sunita Rao
and Mr. Mohd. Mannan for respondents at length and perused the records.
said question, as has been projected above, should not detain us long as the
same has been considered in the matter of Direct Recruit Class II Engineering
Officers' (1990) 2 SCC 715 by a Constitution Bench of this Court. After
eloquent discussion with regard to inter se seniority of direct recruits and
promotees, the same has been summed up in para 47. The relevant portion of the
said para applicable to the facts of this Appeal is reproduced hereinbelow:-
"47. To sum up, we hold that:- (A)Once an incumbent is appointed to a C.A.
@ S.L.P.(C)No.16355/07 ... (contd.) - 8 - post according to rule, his seniority
has to be counted from the date of his appointment and not according to the
date of his confirmation.
The corollary of the
above rule is that where the initial appointment is only ad hoc and not
according to rules and made as a stop-gap arrangement, the officiation in such
post cannot be taken into account for considering the seniority.
(B) 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 regularisation of
his service in accordance with the rules, the period of officiating service will
the strength of the aforesaid Constitution Bench Judgment, Mr. Sushil Kumar
Jain strenuously submitted before us that clause (B) thereof should be invoked
for the purpose of grant of seniority to the Appellant.
have minutely examined the same but are unable to accept the said contention as
according to us corollary of clause (A) of para 47 of the aforesaid judgment
would be applicable to the Appellant's case. It cannot be disputed that the
initial appointment of the Appellant was only ad-hoc and for a temporary period
and was also not in accordance with the Rules of 1990 as he did not appear in
the requisite test, which is conducted by Staff Selection Commission, C.A. @
S.L.P.(C)No.16355/07 ... (contd.) - 9 - before his appointment. The same was
only a stop-gap arrangement. Therefore, his officiation on such a post cannot
be taken into account for considering the seniority. Thus, in our considered
opinion neither clause (A) nor clause (B), as reproduced hereinabove, would be
applicable to the Appellant's case and he cannot draw any advantages therefrom.
On the other hand, he
would be squarely covered by the corollary appended to clause (A).
judgment of Constitution Bench in Direct Recruit's case (supra) has been followed
by three learned Judges of this Court in the case of State of West Bengal and
SCC 371, authored by most illustrious learned Judge of this Court - Hon'ble Mr.
Justice J.S. Verma (as he then was).
After considering the
scope and ratio decidendi of Direct Recruit's case (supra), it has been held in
paras 24 and 25 in lucid and concise words as under:- "24. The question,
therefore, is of the category which would be covered by conclusion (B)
excluding therefrom the cases covered by the corollary in conclusion (A).
In our opinion, the
conclusion (B) was added to cover a different kind of situation, wherein the
appointments are otherwise regular, except for the deficiency of certain
procedural requirements laid down by the rules. This is clear from the opening
words of the conclusion (B), namely, `if the initial appointment is not C.A. @
S.L.P.(C)No.16355/07 ... (contd.) - 10 - made by following the procedure laid
down by the `rules' and the latter expression `till the regularisation of his
service in accordance with the rules'. We read conclusion (B), and it must be
so read to reconcile with conclusion (A), to cover the cases where the initial
appointment is made against an existing vacancy, not limited to a fixed period
of time or purpose by the appointment order itself, and is made subject to the
deficiency in the procedural requirements prescribed by the rules for adjudging
suitability of the appointee for the post being cured at the time of
regularisation, the appointee being eligible and qualified in every manner for
a regular appointment on the date of initial appointment in such cases.
Decision about the nature of the appointment, for determining whether it falls
in this category, has to be made on the basis of the terms of the initial
appointment itself and the provisions in the rules. In such cases, the
deficiency in the procedural requirements laid down by the rules has to be
cured at the first available opportunity, without any default of the employee,
and the appointee must continue in the post uninterruptedly till the
regularisation of his service, in accordance with the rules. In such cases, the
appointee is not to blame for the deficiency in the procedural requirements
under the rules at the time of his initial appointment, and the appointment not
being limited to a fixed period of time is intended to be a regular
appointment, subject to the remaining procedural requirements of the rules
being fulfilled at the earliest. In such cases also, if there be any delay in
curing the defects on account of any fault of the appointee, the appointee
would not get the full benefit of the earlier period on account of his default,
the benefit being confined only to the period for which he is not to blame.
This category of cases is different from those covered by the corollary in
conclusion (A) which relates to appointment only on ad hoc basis as a stopgap
C.A. @ S.L.P.(C)No.16355/07 ... (contd.) - 11 - arrangement and not according
to rules. It is, therefore, not correct to say, that the present cases can fall
within the ambit of conclusion (B), even though they are squarely covered by
the corollary in conclusion (A)."
to us, corollary appended to clause (A) of Direct Recruit's case (supra) and
the aforesaid judgment in Aghore Nath Dey's case squarely decide the issue.
has also been placed by Mr. Sushil Kumar Jain on yet another Constitution Bench
Judgment of this Court reported in (2000) 8 SCC 25 titled Rudra Kumar Sain and
terminology used in the case of O.P. Singla and another etc.
"Ad-hoc", "fortuitous" and "stop-gap". However,
we are not required to consider the same as it has already been dealt with in
Aghore Nath's case (supra) elaborately.
Singla's case (supra), the question was with regard to seniority and promotion
amongst direct recruits and promotees. The said question is not directly in
issue in this case. To the same effect is yet another earlier judgment of this
Court is reported in (1986) 2 SCC 157 titled Narender dealt only with the
S.L.P.(C)No.16355/07 ... (contd.) - 12 -
Narender Chadha's Case, benefit was directed to be granted to those Appellants
as they were working on the said posts for more than 15 to 20 years, which is
not the case in the present appeal. Apart from the above, admittedly the
Appellant had not cleared the requisite examination/proficiency test as
required under the Rules of 1990, as soon as he cleared the
examination/proficiency test, he was regularised on the post. His
regularisation from the date of initial appointment was impermissible and was
rightly denied to him.
view which has been taken by us hereinabove finds favour from a recent judgment
of this Court reported in Perusal of the said judgment shows that the cases on
which we have placed reliance have also been fully relied upon by learned two
Judges of this Court while dealing with the said case. Succinctly, it has been
held in paragraph 25 and 27 as under :
"25. It is,
however, also well settled that where the initial appointment is only ad-hoc,
not according to rules and made as a stop-gap arrangement, the period of
officiation in such post cannot be taken into account for considering the
26. .... .... ....
S.L.P.(C)No.16355/07 ... (contd.) - 13 -
27. When an ad-hoc
appointment is made, the same must be done in terms of the rules for all
purposes. If the mandatory provisions of the rules had not been complied with,
in terms of Direct Recruit Class II Engineering Officers' (1990) 2 SCC 715, the
period shall not be taken into consideration for the purpose of reckoning
seniority. Furthermore, it is one thing to say that an appointment is made on
an ad-hoc basis but it is another thing to say that inter se seniority would be
determined on the basis laid down in another rule."
are, therefore, fortified in our reasoning as adopted in the aforesaid Appeal.
looking to the matter from all angles, we are of the considered view that no
relief can be granted to the Appellant.
His seniority has
been correctly worked out only from the date he had passed the Stenography Test
as contemplated under the Rules approved by Staff Selection Commission.
the appeal being devoid of any merit and substance is hereby dismissed but with
no order to costs.