Full Judgment
HONOURABLE MR. SANJEEV KAUSHIK, MEMBER (J):
By means of the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is aggrieved against the seniority list dated 14.9.2010 whereby private respondent No.3 has been declared senior to the applicant ( Annexure A-7).
2. Brief facts of the case which are necessary for adjudication of the present controversy are that the name of the applicant was sponsored by the Employment Exchange for the post of Junior Stenographer along with other 71 candidates. Shorthand test was held on 7.12.1985 in which 23 candidates appeared in the said shorthand test. Out of 23 candidates, only the names of the three candidates were short-listed i.e. Nirmal, Kawaljit Kaur and the present applicant. The applicant was interviewed on 24.12.1985. On 13.1.1986, the applicant was offered appointment as Junior Stenographer on ad hoc basis for a period of six months (Annexure A-3). The applicant has further submitted that private respondent No.3 was also appointed on ad hoc basis on 21.2.1986, but she was selected/appointed in pursuance to subsequent selection. Since the erstwhile Netaji Subhash Institute of Sports, Patiala, was merged with Sports Authority of India (for short `SAI’), the services of the applicant was allocated to SAI. The services of the applicant as well as private respondent No.3 were regularized vide letter dated 18.12.1986. The respondents issued a tentative seniority list of Stenographers on 26.9.2000 in which the name of the applicant was mentioned at Sr.no.1 whereas the name of private respondent no.3 was at sr.no.2. Without finalizing the earlier tentative seniority list which was circulated vide letter dated 26.9.2000, the respondents again issued another seniority list on 23.5.2008 (Annexure A-6) and invited objections. It is further mentioned that if no objection/representation is received within 5 days from the date of receipt of the circular, it will be presumed that he/she has no objection and is acceptable to him/her and nothing to say in this regard. In this also, the position of the seniority was same as in the earlier tentative seniority list.
3. The respondents have issued final seniority list on 14.9.2010 in which the name of private respondent no.3 stood at sr.no.1 and the name of the present applicant is at sr.no.2. Feeling aggrieved against the said seniority list, the applicant has filed the present O.A that the respondents have changed the seniority of the applicant without affording an opportunity of hearing to him.
4. Pursuance to the notice, the respondents appeared. The official respondents as well as private respondent no.3 have filed their separate reply.
5. The official respondents in their reply have stated that the present O.A is not maintainable on account of delay and latches. They have further averred that the present O.A is pre-mature as against the impugned seniority list, the applicant had already preferred a representation dated 27.8.2010 and without the final outcome of the representation, the applicant has filed the present O.A. They have also stated that since the applicant and private respondent no.3 joined the service of the respondents as Junior Stenographer on the very same date and the respondent no.3 being elder in age, her name was kept at sr.no.1 in the impugned seniority list.
6. Respondent No.3 in her reply has stated that ‘that the applicant has no cause of action to file the present application as replying respondent was already working in the department as Lower Division Clerk on adhoc basis and she later on appeared for the examination of Junior Stenographer where she was promoted on ad hoc basis and applicant who appeared along with the replying respondent for junior steno, he was appointed only for a fixed period, after completion of that period again test was conducted on the basis he was appointed.’ She has further averred that against the tentative seniority list, she filed her objections and after considering the objections raised by her, the final seniority was circulated on 14.9.2010 whereby the seniority position was altered by the competent authority. She has further stated that there was no requirement of granting of an opportunity of personal hearing before issuance of final seniority list as objections were called from all concerned.
7. We have heard Shri Manu K.Bhandari, learned counsel for the applicant, Shri Arvind Moudgil, learned counsel for respondents No.1 and 2 and Shri H.S.Dhandi, learned counsel for respondent No.3.
8. The learned counsel for the applicant has vehemently argued that the impugned seniority list has been circulated without considering the objections raised by the applicant. He further argued that the respondents have not considered the past service rendered by the applicant on adhoc basis towards his seniority. He further urged that the applicant was initially appointed as Junior Stenographer by respondent no.2 after following due procedure against the sanctioned post, therefore, his past service be counted for all purposes including seniority. In this regard, he has placed reliance on the judgments passed by the Hon’ble Punjab and Haryana High Court in the case of Sports Authority of India and Another versus Adarsh Mehta and Another (2004(6) SLR Page 286) and the recent decision passed in Letters Patent Appeal No.886 of 2011 in the case of State of Haryana and Ors. Versus Surindra Kumar Mishra and Ors. Decided on October 13, 2011 and argued that in view of the above judgments, the past service of the applicant is to be counted towards seniority and the applicant be declared senior to private respondent No.3.
9. On the other hand, the learned counsel for the official respondents has argued that the present O.A. is liable to dismissed being barred by the law of limitation. He further argued that as per Bye-laws and Conditions of Service Regulations - 1992(Part I ) , as applicable to Sports Authority of India, the adhoc service is not to be counted for the purposes of seniority. He further urged that since the services of the private respondent is elder than the present applicant and the services of the applicant and private respondent no.3 were regularized on the same day, therefore, being elder in age, the name of respondent no.3 was kept at sr.no.1 and accordingly final seniority list dated 14.9.2010 ( Annexure A-7) was issued.
10. On the other hand, the learned counsel for the respondent No.3 has also argued that though the applicant was shown senior to private respondent in the tentative seniority list but in the final seniority list, the name of respondent no.3 was shown at sr.no.1 after considering the objections received from the respective corners, as such, the grant of personal hearing to applicant does not arise.
11. We have considered the rival submissions and have gone through the pleadings as well as the judgments and orders cited by the respective parties with their able assistance.
12. The question before us for determination in the present O.A is whether the applicant is entitled to count his past service rendered on adhoc basis towards seniority or not. It is clear from reading of Annexure A-1 that the names of 71 candidates was sent by the Employment Exchange and out of 71, only 23 candidates appeared in the short hand test held on 7.12.1985. Out of these 23 candidates, only three candidates including the present applicant were declared as successful. The applicant was interviewed and he issued offer of appointment on ad-hoc basis vide letter dated 13.1.86 (Annexure A-3). Subsequently, his services was regularized on 18.12.1986 ( Annexure A-4). Therefore, the applicant worked on ad hoc basis from 13.1.1986 till his services were regularized on 18.12.1986 whereas the respondents have narrated that the services of the applicant as well as private respondent no.3 were regularized on the same day i.e. 1.1.1987. Be that it may be, it is an admitted fact that the applicant worked on ad hoc basis against the sanctioned post. The applicant was appointed after following the due procedure which is proved by law i.e. by inviting names from the Employment Exchange and even the candidate who applied directly was also considered i.e. Ms. Kuljit Kaur. Therefore, it cannot be said that initial appointment of the applicant on ad hoc basis is de-hors the service law. The judicial pronouncement in the case of Adarsh Mehta ( supra) have considered this aspect of the matter that whether the ad hoc service can be counted for the purposes of seniority or not. The Hon’ble High Court in paras 7 and 8 of the order has answered the question and held as under :-
“7. The Bench of the Administrative Tribunal while relying upon the judgment of the Supreme Court in Direct Recruit Class II Engineering Officers Association and another v. State of Maharashtra and others, JT 1990(2) S.C. 264, and relying upon another judgment of the High Court in Civil Writ Petition No.2780 of 1980 of 1980 - Malook Singh v. State of Punjab, 1992(2) SCT 133(PandH) , decided on 6.12.1991 and also relying on the judgments of the Supreme Court in M.A.Shanmugam etc. v. Union of India etc., 2000(2) Services Cases Today, 954 (SC) and Rudra Kumar Sain v. Union of India, 2000(3) SCT 1096(SC) dismissed the petition of the institute by holding that the appointment was neither stop gap arrangement nor fortuitous and as such the service of the respondent should be counted towards seniority.
8. In the present case as already notice above, the post was created and sanctioned while the respondent was appointed. As such the appointment of the respondent was against a regular post duly sanctioned and was not a mere stop-gap arrangement. Even in the case of Direct Recruit Class II Engineering Officers Association and others v. State of Maharashtra, AIR 1990 Supreme Court 1607, where the Hon’ble Supreme Court held that once initial appointment is made as per procedure and the appointee continues on the post un-interruptedly till regularization of his service in accordance with the rules, the period of officiating service will be counted. Reliance placed by the petitioner upon the judgments of the Supreme Court would not be applicable to the facts of the present case. In the Haryana Veterinary case supra, the court was concerned with the statutory rules in relation to grant of higher pay scale. The expression used in those rules was regular service. No such argument has been raised before us in the present writ petition. In other two cases, the appointment itself was without proper sanction and contrary to the rules; that again is not the position in the case in hand. There is sufficient material on the record to show that the respondent was appointed to the post as per procedure and after due creation of the post in terms of the office order. In any case the petitioners by their own conduct and positive acts by passing different orders, treating the respondent as part of their service cadre.’
13. Not only this, in a recent decision passed in the case of Surindra Kumar Mishra ( supra), the Division Bench of the Hon’ble High Court has also affirmed the order passed by the Single Judge for counting the ad hoc service towards seniority. In this regard, relevant para 9 of the judgments reads as follow :-
“9. We are in agreement with the findings of the learned Single Judge on the issues debated and decided. If the foundational fact of status of first entry into service is legal and valid which commensurate with Article 14 and 16(1) of the Constitution, consequences of seniority would automatically follow from the initial date. It is contended by learned counsel for the respondents that in the face of appointment of petitioners-respondents under the 1937 Rules in accordance with the procedure set out therein then such appointments having been made against substantive and clear vacancies existing in the cadre at the time of initial appointment seniority of such appointments can be made to run from such appointment as held by the learned Single Judge. Mr. Pattar has been unable to distinguish the judgments relied upon, each of which help promote the case of the petitioner-respondents.”
14. In view of above discussion, we left with no option to allow the instant O.A and set aside the impugned seniority list with a direction to respondents to firstly grant the benefit of ad hoc service to the applicant and thereafter to re-cast the seniority. Before doing the same, the affected persons be also given a personal hearing. Let this exercise be concluded within a period of three months from the date of receipt of a copy of this order. No costs.