1. Short question, which arise for determination in the present OA may be culled out as under: Whether a person who is appointed purely on ad hoc basis through a selection process following an advertisement with clear stipulation that the ad hoc appointment will not be counted for the purpose of seniority and eligibility for promotion/confirmation, on his subsequent selection in an open competition on the basis of recommendation of UPSC, can claim counting of the earlier ad hoc service with his regular service for the purposes of seniority and promotion.
2. The factual background of the case is as follows. Applicant was appointed on ad hoc basis as a Specialist in Radio-diagnosis Grade-II initially for a period of one year w.e.f. 15.9.93 or till the post was filled on regular basis whichever was earlier. The appointment letter stipulated that the period of ad hoc service will not bestow on him any claim or right for regular appointment in Central Health Service and the period of ad hoc appointment will not count for the purpose of seniority or eligibility for promotion/confirmation etc. In 1996 a requisition was sent to the UPSC for filling up 6 posts of Specialist Radio Diagnosis in non-teaching sub-cadre in Central Health Service. In response to the open advertisement issued by the UPSC applicant also submitted his application. UPSC recommended him along with another candidate for appointment to the advertised post. Accordingly, the applicant was appointed and joined w.e.f. 3.7.98 under Andaman & Nicobar Administration. Prior to the date of joining he had been working on ad hoc basis for a short period which was extended from time to time. Applicant thereafter was promoted to the post of Specialist Grade II on 3.7.2000 on his completing two years regular service in the grade of his appointment, i.e., from 3.7.98. He is due for promotion as Specialist Grade-I in the scale of Rs.14300-18300 on completion of 4 years regular service as a Specialist Grade-II (senior scale) which is under consideration of the Government. This Tribunal allowed OA NO.1315/93 titled Dr. Rakesh Verma v. Secretary to Government of India, Ministry of Health dated 27.5.99. According to the applicant the decision of the Tribunal in the said OA fully covers his case also. It is submitted that Dr. Rakesh Verma was also initially appointment on ad hoc basis and was subsequently regularly selected by UPSC against the advertised post was granted the benefit of counting of the period of ad hoc service with the period of regular service in Central Health Service with consequential benefits. The said order has been implemented by the respondent. According to the applicant he made a representation to the respondents for according him also the same benefit which was granted to Dr. Rakesh Verma. In accordance with that order, the period of his ad hoc service, which was followed by the regular service, should also be counted for granting him promotion to the post of Specialist Grade-II (senior scale) and then to the next promotion as Specialist Grade-I. The representation of the applicant has been rejected by the respondents vide letter dated 29.7.2005 (Annexure-16). Applicant has claimed the following relief in para 8 of the OA: That the original application of the Petitioner for the counting of ad-hoc services for the purpose of purpose of promotion and seniority for the post of Specialist Grade II (Senior Scale), Specialist Grade I and subsequent promotions be allowed as allowed by this Honble That the Hon'ble Tribunal may declare that the Petitioner became entitled to be treated as regular Specialist Grade II with effect from 15-09-1993 and /or he became entitled to have his services as Specialist Grade II rendered on so called ad-hoc with effect from 15-09-1993 counted towards his regular services as Specialist Grade II and not with effect from 03-071998 and thus become entitled to be treated as regular Specialist Grade II for all purposes including seniority as Specialist Grade II with effect from 15-09-1993 with all consequential benefits with promotions to the higher posts on that basis, including the post of specialist grade II (Sr.Scale ) with effect from 15.09.1997 on completion of four years as regular specialist grade II and Specialist Grade I with effect from 15.09.2001 on completion of eight years as specialist grade II That the Honble Tribunal direct the Respondents to treat the Petitioner as having become entitled to be treated as regular Specialist Grade II with effect from 15.09.1993 and /or he became entitled to have his service as Specialist Grade II rendered on so called ad-hoc basis with effect from 15-9-1993 counted towards his regular service as Specialist Grade II and not with effect from 03-071998 and thus become entitled to be treated as regular Specialist Grade II for all purposes including promotion and seniority as Specialist Grade II with effect from 15.9.1993 with all consequential benefits like consideration of promotion to the higher posts on that basis, including the post of specialist grade II (Sr.
Scale) with effect from 15.9.1997 on completion of four years as regular specialist grade II and specialist grade I with effect from 15.9.2001 on completion of eight years as specialist grade II.3. The respondents have rebutted the claim of the applicant for counting his ad hoc service with his regular service in Central Health Service and granting him promotions to the post of Specialist Grade-II (senior scale) and Specialist Grade-I. It is stated that the applicant was appointed initially on ad hoc basis for a period of one year or till the post was filled on regular basis whichever was earlier.
Because of procedural delays the post could not be filled up so the ad hoc appointment was extended beyond one year from time to time or till regular appointment was made through UPSC. It was further stated that initial offer of appointment was with the condition that it will not bestow on him claim or right for regular appointment and that the service rendered by him will not count for seniority or eligibility for promotion etc. which condition had been accepted by the applicant by joining the post.
4. Learned Counsel for applicant has heavily relied upon the decision of this Tribunal dated 27.5.99 in OA-1315/93 in the case of Dr. Rakesh Verma, copy of which has been filed as Annexure-14 in the OA. There is no quarrel that the question of law and fact which arise in the present OA are similar to the case of Dr. Rakesh Verma. Learned Counsel has strenuously argued that the respondents have unjustly and arbitrarily denied the benefit of that order to the applicant and have thus violated Article 14 of the Constitution of India. It is submitted by him that the representation of the applicant was made soon after the order in favour of Dr. Rakesh Verma was implemented in 2004 but the same was rejected in 2005.
5. Conversely counsel for respondents has raised a preliminary objection that the OA suffers from delay and has been filed beyond the limitation prescribed under Section 21 of the AT Act, so it should be dismissed as barred by time. His other argument is that his case is squarely covered by the decision of this bench in the case titled Dr.
H.K.Pal v. Union of India and Ors. where the Hon'ble High Court had rejected the claim of the applicants for their regularization on the basis of their ad hoc service counted with the period of regular service and for the consequential benefits. It is submitted that the question formulated by the Tribunal for consideration is similar to the question that arises in the present case and the facts are also not different. Learned Counsel also refers to the five Judges Bench of the Hon'ble Supreme Court in the case of Direct Recruit Class II Engineering Officers Assn. v. State of Maharashtra 1990 SCC (L&S) 339 and V.P.Shrivastava and Ors. v. State of MP and Ors.
in support of the case of the respondent.
6. We have heard the learned Counsel for the parties and have given due consideration to the submissions made at the Bar.
8. Long and short of the argument of the learned Counsel for the applicant is that Dr. Rakesh Verma who was similarly situated and similarly circumstanced has been granted the benefit of counting of ad hoc service with regular service in order to be granted senior scale of Specialist Grade-II and Grade-I so the same benefit should be extended to him. He further argued that the treatment of applicant differently in the matter would be discriminatory and violative of principles of equality before law enshrined in the Article 14 of the Constitution of India.
9. Rebutting the argument of the learned Counsel for respondents that the present OA is barred by time, counsel for applicant has argued that the representation of the applicant was made soon after the Dr. Rakesh Verma's case was delivered, it was kept pending and had been decided by the respondents only in 2005 and that counting the limitation period from that date the present OA is in time.
10. Learned Counsel for respondents reiterating the case of the respondents pleaded in the counter contended that the judgment of this Tribunal dated 21.8.2000, which is later in time, squarely covers the present case and the Tribunal may follow it in preference to the judgment of the Tribunal in Dr. Rakesh Verma's case which was rendered in 1999. He also referred to the judgment of the Honble Supreme Court to contend that the latter cases of Dr. H.K.Pal and two others have correctly decided the question of law.
11. As regards to the OA being barred by time, we do not find much force in the contention of the respondents since the respondents have decided the representation of the applicant by order dated 29.7.2005 (Annexure A-16). This decision is on merit and not on the ground that the representation cannot be entertained as the claim had become barred by time. Counsel for applicant has submitted that the representation and repeated representations will not extend the limitation period once it has started and that the limitation for filing the OA in the case where the representation remains undecided for over 6 months is one year from the date on which the 6 months period has expired. But in the present case the respondent did not choose to keep mum but proceeded to deal with the representation on merit and have rejected it on merit. So it gives a cause of action to the applicant to challenge the order.
Present OA having been filed in September 2005 is well within the time from the date of the order dated 29.7.2005. Accordingly, it is held to be in time.
12. Reverting to the main controversy between the parties suffice to say that the principles of law which have been decided in the case of Dr. H.K.Pal and two other OAs by common order dated 21.8.2000 are fully applicable to the present case also. The proposition of law framed by the bench for decision was enumerated in para 8 of the order which is Annexure R-1 to the OA in the following words: Whether an individual appointed purely on ad hoc basis originally but through a selection process following an advertisement later selected subsequently on the basis of their recommendation of the UPSC can claim the benefit of their earlier ad hoc service for counting with regular service for the purpose of seniority/promotion etc.
The above question is almost identical to the question that arise for determination before this bench.
13. As regards the claim of seniority, the learned Counsel for applicant has not raised it during his arguments before us. His appointment in Central Health Scheme in non-teaching sub-cadre is in an open competitive selection by the UPSC. His seniority in this service will be regulated in order merit in selection list and the Recruitment Rules. He cannot be given seniority in the Central Health Service by counting his past ad hoc service. It will be a contravention of the Recruitment Rules. In fact the judgment of the Hon'ble Supreme Court in the case of Direct Recruit Class-II Engineering Officers Association (supra) in para 47 of the judgment has summed up the proposition of law as follows: 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.Chief of Naval Staff and Anr. v. G.Gopalakrishna Pillai and Ors. (1996) 32 ATC 475, the Hon'ble Supreme Court considered the case where the respondent Sh. Pillai was regularly selected to the post of Storekeeper and appointed to such post but prior to that selection and appointment to the post on regular basis he was continuously officiated in the post of ad hoc appointment given to him. Honble Court has held as under: 5. The learned Counsel for the respondent engaged by the Supreme Court Legal Aid Committee, has, however, submitted that it is an admitted position in this case that Shri Pillai has been regularly selected to the post of storekeeper and appointed to such post.
Prior to such selection and appointment to the post of storekeeper on regular basis, Shri Pillai had continuously officiated in the post of storekeeper on the basis of ad-hoc appointment given to him.
If an employee is ultimately selected on a regular basis to a post in which he had continuously officiated, then even if such employee had held the post only on adhoc basis, he will be entitled to claim seniority from the date of ad-hoc appointment. In support of such contention, the learned Counsel has relied on a decision of this Court in Union of India v. Ansusekhar Guin. It , however, appears to us that in the said case, this Court has only reiterated the principle that if an employee had been appointed on ad-hoc or temporary basis exceeding the quota fiexed for such appointment such employee would be entitled to get the credit of continuous officiation in fixing seniority provided such ad-hoc or temporary appointment had been appointed made by a regularly constituted body for holding the selection of the candidates to be appointed. In the instant case, the respondent Shri Pillai was not selected by a regularly constituted selection body for giving ad-hoc appointment to the post of storekeeper and on such selection he had continued in ad-hoc service till regular appointment to such post was made. On the contrary, the case of Shri Pillai is that while he had been holding ad-hoc post, he got selected on a regular basis to the said post of storekeeper. Hence, the decision relied on by the learned Counsel for the respondent is not applicable in the facts and circumstances of this case. It also appears to us that the Tribunal in passing the impugned order has relied on Condition 'B' as referred in the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers Assn. in support of the impugned order. In our view, the principle, the enunciated in the said case is not applicable in the facts of this case because the initial appointment of Shri Pillai by way of ad-hoc arrangement was not made by following the procedure laid down by the Rules as referred to in Condition B in the said decision. Hence, the decision of the Tribunal cannot be sustained. We, therefore, allow this appeal and set aside the impugned order without however any order as to costs.
To sum up it may stated that the ad hoc appointment followed by regularization in the same post would not count towards seniority in case the ad hoc appointment was not made by following the procedure laid down by rules and was made purely as stop gap arrangement.
Counsel for applicant has rightly not claimed seniority counting his ad hoc service with his regular service pursuant to the recommendation made by the UPSC.15. However, the question remains whether the period of ad hoc appointment of the applicant in 1993 which has been extended from time to time and is followed ultimately by his regular appointment to Central Health Service in the year 1998 should be counted for giving him promotions to the senior grade of Specialist Grade II and to the Grade-I. As per Central Health Service Rules, 1966 2 years of regular service was required in the grade for promotion to Specialist Grade-II and further 4 years service was required for promotion to the Specialist Grade-I. The letter for ad hoc appointment has clearly stipulated that the period of ad hoc service will not entitle the applicant for regularisation in service and shall not be counted for the purpose of seniority and promotion etc. There is no dispute about it. However, this condition was also appended to the appointment letters by which Dr. Rakesh Verma and Dr. H.K.Pal and Ors. were appointed. Divergent views have been taken by the two benches. The judgment in Dr. H.K.Pal (Annexure R-1) is a later judgment. But it has not taken into consideration the judgment of the Tribunal in the case of Dr. Rakesh Verma.
16. We will first consider the law which has been laid down on the subject by the Hon'ble Supreme Court. The facts of the case of Direct Recruit Class-II Engineering Officers Association (supra) showed that there was a dispute between the direct recruit and promotees to the Engineering Service and the question was about the promotee officers whose initial appointment in officiating capacity was not made following the procedure laid down for promotion by the rules but the appointees continued in the post uninterruptedly till regularization in the service in accordance with the rules. It was held that the period of officiating service be counted, but where the initial appointment was made only on ad hoc basis as a stop-gap arrangement and was not in accordance with the rules the officiation in that post cannot be taken into account for considering the seniority in terms of Bombay Service of Engineers (Class I and Class II) Recruitment Rules, 1960. In the case of JK PSC and other v. Dr. Narinder Mohan (1994) 27 ATC 50, the Hon'ble Supreme Court was dealing with the case of appointment of persons on ad hoc basis in violation of statutory rules. The Court has made the following observation:Dr. A.K.Jain v. Union of India gave directions under Article 142 to regularize the services of the ad-hoc doctors appointed on or before 1-10-1984. It is a direction under Article 142 on the peculiar facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 power is confided only to this Court. The ratio in Dr. P.P.C. Rawani v. Union of India is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularize the adhoc appointments had become final. When contempt petition filed for non-implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution.
Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v. Dr. Gyan Prakash Singh Court by a Bench of three Judges considered the effect of the order in A.K.Jain case and hled that the doctors appointed on ad-hoc basis and taken charge 1-10-1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy v. Hon'ble Chief Justice of Karnataka this Court while holding that the appointment to the posts of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since theyhave put in more than 10years service. It is to be noted that the recruitment was only for clerical grade (Class-III post) and it is not a ration under Article 141. In State of Haryana v. Piara Singh, this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad-hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad-hoc or temporary employees by regularly selected employees, as early as possible. The temporary employees also would get liberty to complete alongwith others for regular selection but if he is not selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad-hoc or temporary employee. Ad-hoc or temporary employee should not be replaced by another ad-hoc or temporary employee. He must be replaced only by regularly selected employee. The ad-hoc appointment should not be device to circumvent the rule of reservation. If a temporary or ad-hoc employee continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. It is to be remembered that in that case, the appointments are only to Class-III or Class-IV posts and the selection made was by subordinate selection committee. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad-hoc appointment, if the ad-hoc appointee continued for a long period, the rules of recruitment by regularization be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned Single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules.
12. It is difficult to accept the contention of Shri Rao to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates found eligible for the respective years. It would be fraught with grave consequences. It is settled law that the Government need not immediately notify vacancies as soon as they arose. It is open, as early as possible, to inform the vacancies existing or anticipated to the PSC for recruitment and that every eligible person is entitled to apply for and to be considered of his claim for recruitment provided he satisfies the prescribed requisite qualifications. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for recruitment offending Articles 14 and 16.
13. Accordingly, we set aside the directions issued by the Division Bench of the High Court and confirm those of the Single Judge and direct th State Government of J&K to notify the vacancies to the PSC which would process and complete the selection, as early as possible, within a period of six months from the date of the receipt of this order. The State Government should on receipt of the recommendation, make appointments in the order mentioned in the selection list within a period of two months thereafter. Since the respondents have been continuing as ad-hoc doctors, they shall continue till the regularly selected candidates area appointed. In case any of the respondents are barred by age, the State Government is directed to consider the cases for necessary relaxation under Rule 9 (3) of the age qualification. If any of the respondents are not selected, the ad-hoc appointment shall stand terminated with the appointment of the selected candidate. The direction sought for by Dr.Vinay Rampal cannot be given. His appeal is accordingly, dismissed and the State appeal is also dismissed. The appeals of the PSC are accordingly allowed but in the circumstances parties are directed to bear their own costs.
17. In the present case the applicant was appointed on purely ad hoc basis till a regular appointment was made by the UPSC. His appointment was not in accordance with the Central Health Service Rules, 1982 when he joined it in 1992. This appointment was purportedly made as a stop gap arrangement till a regular appointement was made through UPSC in accordance with the Rules. Applicants was also one of the candidates and he was selected as a direct recruit in the service and was appointed in the year 1998. The prior service rendered as ad hoc basis being not a regular service or could not be counted for the purpose of giving him promotions in the service also on the same principle on which he will not be entitled to be granted seniority in the Central Health Service on the basis of his previous ad hoc service. In view of the decision of the Hon'ble Supreme court cited above, we are in respectful agreement with the judgment of this Tribunal in the case of Dr. H.K.Pal which is even otherwise a later judgment of a coordinate bench.
18. It will also be pertinent here to note the judgment of the Hon'ble Supreme Court in State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. in which the Hon'ble Court has held as under and which aptly apply to the present case also: 30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh and Ors. v. NDMC and Ors. held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed: Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors. this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding: Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents.
We, therefore, are of the view that the judgment of the Tribunal in the case of Dr. Rakesh Verma has not laid down good law so cannot be followed.
19. The result of the above discussion is that the OA has no merit. It is dismissed but without costs.