Pradip Kumar Ghosh Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
1. though this o.a., the applicant has prayed for a direction to the respondents to regularise his service on the post of caretaker of gpo building, calcutta and a further direction to the respondents to grant him the benefit of fixation of pay in terms of 5th pay commission report.2. the applicant joined service as postal assistant in the scale of rs. 975-1500/- on 22.11.79 at calcutta gpo. pursuant to a circular dated 27.10.90 inviting applications from willing postal assistants of gpo for filling up the post of caretaker, gpo, calcutta in the scale of rs. 1200-2040/- on ad hoc basis, the applicant applied for the said post, he having the requisit qualifications as enumerated in the said circular. by an order dt. 28.11.90, the applicant was directed to work as caretaker on ad hoc basis and on purely temporary measure. it was made clear that this arrangement would not confer any right upon him to continue in the post and that the same may be terminated at any time without notice (vide annexure-a). pursuant to the said order, the applicant took over charge of the post of caretaker w.e.f. 30.11.90.subsequently by an order dt. 8.4.91, his ad hoc appointment as caretaker was treated as officiating one and it was mentioned that his officiating promotion w.e.f. 30.11.90 would be taken into account towards usual period of probation.3. according to the applicant, his lien in his parent cadre of postal assistant was maintained and he was also given one time bound promotion w.e.f. 22.11.95 (i.e., on completion of 16 years service) on pro forma basis in the higher scale of rs. 1400-2300/ as per order dt. 14.6.97 (annexure-c). according to the applicant, although he was given such time bound promotion in his parent cadre on pro forma basis, he was not given any pay fixation benefit of the said higher scale. however, after the 5th pay commission, the pay scale of postal assistant was upgraded w.e.f. 1.1.96 to that of udc i.e., rs. 4000-6000/ which was also the revised pay scale of caretaker.4. on the recommendation of the 5th pay commission, govt. of india decided to rationalise the cadre of caretakers and it was decided that group d and group c staff borne on the regular establishment and deployed on caretaking duties, which is not to be treated as deputation to an ex cadre post, may be paid a caretaking allowance of rs. 100/- and rs. 200/- p.m. respectively as compensation for long hours of work required by them. it was further provided that those establishments which would continue to retain separate posts of caretakers, those shall be merged in the general ministerial cadres in corresponding scales of pay and pay scale of such caretakers was to be determined with reference to the floor area of the building concerned. in accordance with this principle, the post of caretaker in the gpo, calcutta was upgraded to the scale of rs. 5500-9000/- by an order dt.20.2.2001 i.e., after filing of this o.a.5. the applicant made a representation on 8.11.2000 (annexure-e) wherein he prayed for grant of revised pay scale to him as, according to him, he was not getting any financial benefits since his appointment as caretaker and even his increment had been stopped from 1998. the representation having not been considered, he has filed this o.a. for the reliefs mentioned above.6. during the pendency of this o.a., the respondents issued a circular dated 24.3.2001 for filling up the upgraded post of caretaker from amongst bcr (biennieal cadre review) officials having in the identical pay scale of rs. 5500-9000/- or in the scale of rs. 5000-8000/- with three years service. the applicant prayed for an interim order for staying the said selection process by filing ma 264 of 2001 which was disposed of on 30.3.2001 directing the respondents to proceed with the selection process in which the applicant was also directed to be considered but they were prohibited to publish the result.subsequently, the respondents filed an ma being ma 491/2001 praying of leave of the tribunal to publish the result. the said ma was also disposed of on 20.9.2001 directing the respondents to publish the result but the same should not be given effect to till the disposal of the o.a.7. the respondents contested the o.a. by filing a reply in which the facts stated by the applicant have not been disputed. it is, however, asserted that the applicant was appointed as caretaker only on ad hoc basis and according to the terms of his appointment, he has no right to regularisation to the said post. it is also contended that the applicant retained his lien in his parent cadre of postal assistant and that he was also given one time bound promotion w.e.f. 22.11.95 on pro forma basis in higher scale of rs. 1400-2300/-. but since the applicant did not exercise any option, no pay fixation benefit could be given to him. it is further contended that as per the govt. of india decision contained in finance ministry's om dt. 30.6.99 (annexure-d to the o.a.), the post of caretaker of gpo was upgraded with reference to the floor area vide cpmg's order dt. 20.2.2001 (annexure-rvii) to the scale of rs. 5500-9000/- and it was decided that the post should be filled up from amongst bcr officials depending on suitability. accordingly, notice was issued inviting applications from willing candidates and dpc was also held on 23.4.2001 for selection of the candidate in which the case of the applicant was also considered as per direction of the tribunal. but the applicant was found ineligible as he was not holding identical post carrying the scale of rs. 5500-9000/- or one grade below scale of rs. 5000-8000/- for 3 years as per requirement. therefore, he could not be selected even though he has been working as caretaker for a longtime on ad hoc basis. it is asserted that the applicant still belongs to his parent cadre of postal assistant and he will be repatriated once the selected person joins the upgraded post of caretaker.8. we have heard the learned counsel for the parties at length and perused the documents placed on record including the departmental records produced by the ld. counsel for the respondents.9. the cardinal point to be decided in this case is whether the applicant's appointment as caretaker w.e.f. 30.11.90 can be called as ad hoc or it is to be treated as regular one.10. the id. counsel for the applicant contended that there is no recruitment rules for the post of caretaker and as per eligibility criteria fixed by the administrative authority, the applicant was selected initially on ad hoc basis. thereafter, a dpc was held and the dpc also selected him on the basis of his record and suitability and he was placed on probation. therefore, the applicant cannot be said to be an ad hoc appointee after all these years. he further contended that when the post of caretaker was upgraded, the applicant ought to have been appointed to the said post, he being the regular caretaker.11. ld. counsel for the respondents, on the other hand, has disputed this contention by stating that the appointment of the applicant was only on ad hoc basis as will be clear from the terms of his appointment at annexure-a dated 28.11.90 wherein it was clearly mentioned that his appointment was on ad hoc and on purely temporary measure and such appointment would not give him any right to regularisation.12. both parties have relied on some case laws in support of their respective contentions which we shall discuss at some later stage.13. from annexure-ri to the reply, we find an office note 23.10.90 wherein it is stated that the earlier incumbent of the post of caretaker was going to retire on 30.11.90 and a draft circular inviting applications from eligible officials for the post of caretaker was proposed to be circulated. the said circular was issued on 27.10.90 (annexure-rii) inviting applications from willing postal assistants, who had rendered at least five years service and not more than 15 years service. it appears that the applicant applied and he was appointed as caretaker as per order dt. 28.11.90 (annexure-riii) and ad hoc basis w.e.f. 30.11.90. from annexure-riv to the reply we find that a dpc meeting was held on 4.4.91 regarding appointment of caretaker of calcutta gpo. the dpc considered nine persons including the applicant, who was at sl. no. 9. the dpc recommended the name of the applicant for appointment as caretaker, gpo on ad hoc basis. it also approved the continuance of the applicant as caretaker w.e.f. 30.11.90.14. mr. ghosh, ld. counsel for the applicant has drawn our attention to the order at annexure-b dated 8.4.91, which apparently was issued after the aforesaid dpc meeting. it is mentioned in the said order that the applicant was appointed as caretaker purely on ad hoc basis w.e.f.30.11.90. but at the same time, it was indicated that the officiating service rendered by the applicant as caretaker would be taken into account towards usual period of probation. it is contended by mr. ghosh that when a person is appointed on probation, it cannot be said to be on ad hoc basis. ld. counsel for the respondents has, however, tried to refute this contention by stating that the expression 'probation' was erroneously mention in the order. he contended that the dpc minutes will show that the appointment of the applicant was actually on ad hoc basis and nothing else. he stated that the applicant cannot take advantage of an administrative error. he further submitted that the post of caretaker is an isolated post and it is always filled up from amongst the regular cadre of postal assistants with certain eligibility criteria as fixed by the authorities and the person so appointed is allowed to retain his lien in his parent cadre of postal assistant.15. from the dpc minutes dt. 4.4.91, we find that the contention of the ld. counsel for the respondents is somewhat correct. in the dpc recommendation, the appointment of the applicant was stated to be on ad hoc basis and there was no mention that he will be on probation.therefore, the order at annexure-b dt. 8.4.91 seems to have been issued on erroneous assumption that the appointment of the applicant as caretaker was a regular one and this is certainly an administrative error.16. be that as it may, the respondents have not been able to produce any recruitment rules for the particular post of caretaker of gpo, calcutta. however, from the copy of the circular dt. 27.10.90 (annexure-rii) issued by the director of calcutta gpo inviting applications for the post of caretaker of gpo on ad hoc basis in the scale of rs. 1200-2040, the eligibility criteria mentioned was that the officials who rendered service in the department in p.a. cadre at least for 5 (five) years and not more than 15 years. thus, it is quite clear that for the specific and isolated post of caretaker of gpo, even though no recruitment rules have been placed on record, the eligibility criteria was fixed by the executive authority. it is now well settled that in the absence of statutory recruitment rules, the executive authority has the power to fix guidelines or norms for filling up a post. the applicant having fulfilled the criteria, applied for the post and was selected initially on ad hoc basis and thereafter, his selection was also approved by the dpc, when dpc selected a person, normally, the appointment is to be treated as regular one even though the appointment order may mentions it as on ad hoc basis. it may be possible that since the post of caretaker in gpo is an isolated post and not in regular cadre, it is filled up on deputation or loan basis from the pa cadre, which is the normal practice in other govt.departments also. this assumption finds support from the fact that the applicant as well as the respondents admitted that the applicant has been maintaining his lien in the pa cadre and that is why he was also given one time bound promotion (otbp) on pro forma basis w.e.f.22.11.95 as per annexure-c dated 14.7.97. be it noted that such promotion was given to the higher scale of rs. 1400-2300/-.17. the respondents have, however, produced a circular dated 24.6.78 for filling up the post of caretaker in the directorate of p & t, new delhi. as per this circular, the essential qualification has been prescribed as matriculate and a diploma in sanitation with one year's experience. the pay scale was rs. 380-640/-. applications were invited from eligible govt. employees, who were holding posts carrying a scale of pay the minimum of which is not less than rs. 330/-. it is contended by the respondents that these are recruitment rules for the post of caretaker and since the applicant did not fulfil this qualification, he cannot be regularly appointed as caretaker. we are unable to accept this contention. this particular circular dt. 24.6.78 is meant for p and t directorate of new delhi whereas the present post in question is for the calcutta gpo. the pay scales of both the posts are also different. in the former case, the scale was rs. 380-640/- whereas in the latter case it is rs. 330-560/- i.e., udc scale. of course, there was another post in the scale of rs. 350-560/ but it was made clear that the said post would also be ungraded to rs. 360-640/-. therefore, the requirements mentioned in the said circular cannot be made applicable to the present case. this leads us to the obvious conclusion that there was no recruitment rule for the post of caretaker, gpo and it is filled up on deputation or loan basis from pa cadre, which was in lower scale than that of caretaker.18. relying on the decision of the constitution bench of the apex court in the case of direct recruit class ii engineering officers' association v. state of maharashtra and ors. (1990) 2 scc 715=1990(2) slj 40 (sc), mr. ghosh has contended that if the initial appointment is according to rules, then the appointment cannot be called ad hoc and all benefits should be extended to such appointee. he has relied on the decision of the principal bench bench in o.a. 1378 of 1989 dt.18.10.96, but no copy of the order nor any citation has been produced before us. we are, therefore, unable to discuss the same. mr. ghosh also relied on the case of uoi and ors v. pratap narain and ors. (1992) 20 atc 756 (sc) wherein it was held by the apex court following its earlier decision of narender chadha's case, 1986 scc (l and s) 226, that when ad hoc promotees are continuing for long years, they should be treated as regular. but this case relates to fixation of seniority of direct recruit -vis-a-vis promotees, who were given promotion on ad hoc basis. the situation in the present case is totally different. he has also relied on a calcutta bench decision in the case of uma shankar prasad v. uoi and ors., 1992(2) atj 298=1992(2) slj 106 (sc). in that case the applicant was promoted on ad hoc basis and vice-principal of system technical school and continued for over decades satisfactorily and thereafter he was discharged. in those circumstances, the tribunal held that the applicant was entitled to regularisation. the fact situation in the present case is distinguishable as the applicant herein has not been discharged, rather he has been given promotion in higher post in his own line. on the other hand, the id. counsel for the respondents has relied on the decision of the supreme court in the case of food corporation of india v. thaneswar kalita and ors., (1995) 29 atc 573=1995(2) slj 150 (sc) to contend that ad hoc promotion de hors the rules, even though continuing for a long time, could not be construed to be a regular appointment.19. we have given our anxious consideration to the rival contentions and as also the case laws cited by both parties. in the instant case, it is not in dispute that the applicant originally belonged to pa cadre and he was selected for appointment as caretaker which was in a higher scale on ad hoc basis w.e.f. 30.11.90. the respondents held a dpc on 4.4.91 which also approved the appointment of the applicant as caretaker on ad hoc basis. no doubt the applicant continued in his ad hoc post for a long time and there is no complaint against him. his main relief is for regularisation in the post of caretaker. it is the admitted position that the lien of the applicant is being maintained in his substantive cadre of postal assistant and he was also given time bound promotion after 16 years on pro forma basis in view of the fact that he was working in an ex cadre post. now if the applicant is treated as regular by virtue of his long service on ad hoc basis and also because of his selection through dpc, as contended by the ld.counsel for the applicant, in that event, he lien cannot be maintained in the pa cadre from the date he is treated as regular caretaker and in that case, he will be in a disadvantageous position because the post of caretaker being an isolated and ex cadre post, he cannot have any further promotion for all times to come. to avoid this stagnating position, the respondents have kept him on ad hoc basis and maintained his lien in his parent cadre for his benefit so that he can get promotion in normal channel as per rules. it is not understandable, why the applicant wants regularisation in the isolated post of caretaker and face the consequence of no further promotion in his service career.in all fairness, therefore, we cannot find fault with the decision of the respondents to keep the applicant on ad hoc basis in order to protect his chance of promotion in his own line, which is beneficial for him. moreover, w.e.f. 1.1.96 i.e., after 5th pay commission, the pay scale of both the posts of postal assistant and caretaker became identical and according to the applicant's own admission, he was not getting any monetary benefits for doing the work of caretaker which was earlier in a higher scale than that of pa. it is beyond our comprehension why the applicant still claims regularisation in the post of caretaker. it is true that the post of caretaker was upgraded in the year 2001 after the filing of this o. a. therefore, it cannot be said that the applicant knew beforehand that he may have a chance to get such upgraded scale and that is why he desired to be regularised as caretaker. apart from that, even if the upgradation order was passed by the dopt in the year 1999 based on which the post of caretaker in the gpo was upgraded in the year 2001, while filing this application, the applicant has not sought any specific relief in that regard.20. considering the matter from all its aspects, we are of the opinion that the appointment of the applicant as caretaker was purely on ad hoc basis and he cannot be considered to be regularly appointed on the post in the facts and circumstances of the case as discussed above.21. one of the grievance of the applicant is that even though he was allowed pro forma promotion in the higher scale of rs. 1400-2300 w.e.f.22.11.95 vide order dt. 14.6.97 (annexure-c), he wa's not given any pay fixation benefit. be it noted that prior to 1.1.96 i.e., coming into force of the 5th pay commission scales, the postal assistants were in the scale of rs. 975-1660/- whereas the applicant was continuing in the higher scale of rs. 1200-2040/- since 30.11.90 i.e., prior to his getting such pro forma promotion. after 1.1.96 the pay scale of postal assistant was revised to rs. 4000-6000/- which was also the revised scale of the caretaker from that date. the scale of rs. 1400-2300/- was revised to rs. 4500-70007-. the applicant complains that he was not given the benefit of this higher scale on actual basis. the respondents contend that since the applicant did not exercise any option to avail this benefit, he could not be given the higher scale. their case is that had the applicant opted for the higher scale, he could have been released from the post of caretaker to be repatriated to his parent cadre to enjoy the benefit of higher scale, which is a supervisory post.22. we have gone through the promotion order at annexure-c dated 14.6.97. the name of the applicant appears at sl. no. 2 and he was given pro forma promotion to the scale of rs. 1400-2300 w.e.f. 22.11.95 i.e. on completion of 16 years service. the order clearly stipulates that the officials who wish to give options for chosing the date for fixation of pay under fr 22(1)(a)(1) may do so. since the benefit of fr 22(1)(a)(1) is involved, it is a case of promotion with higher responsibility. it is admitted that the applicant has not given any option. the pro forma promotion is given under "next below rule" in terms of fr 30 (now incorporated in fr 22) to protect an official in apost (whether within the cadre of his service or not) who, for any reason; is prevented from officiating in his turn in a post on higher scale or grade borne on the cadre of the service to which he belongs.although there is no provision in the fr that in order get pro forma promotion benefit, one has to exercise option, but for the purpose of pay fixation, option is required which is also indicated in the promotion order itself. however, in terms of para 4 of goi decision no.(29) below fr 22, it is clearly provided that where an officer is given promotion under 'next below rule,' he cannot be retained in the special post i.e., ex, cadre post, if the pay attached thereto is lower than that admissible to him under the 'next below rule' for more than six months beyond the date from which the 'nextbelowrule' begins to operate. in the instantcase, the applicant was given pro forma promotion in the scale of rs. 1400-2300/w.e.f. 22.11.95 which was surely higher than that of the ex cadre post of caretaker in the scale of rs. 1200-2040/-. therefore, the applicant could not be kept as caretaker, which was in a lower scale, beyond six months from the date of promotion. perhaps, fearing his repatriation, the applicant did not opt for the promotion and kept silent regarding option. it is very curious that although the applicant, on promotion to higher grade, will be posted in the same gpo, he did not opt for such promotion and now he complains that he was not given the benefit of promotion. it is also equally unfortunate that the respondents also did not take any action and kept the applicant as caretaker for many years thereafter on the pretext that no option was given by the applicant, though they ought to have taken action immediately for repatriation of the applicant to his parent cadre in higher post, particularly, when the pay scale of the posts of caretaker and pa became identical w.e.f. 1.1.96. they have unnecsssarily complicated the issue.23. in any event, it is for the applicant to exercise option for the purpose of pay fixation and if he exercises such option, the respondents should take necessary action on the same according to rules so that the interest of the applicant is not in any way prejudiced to get the promotional benefits from the date it became due to him.24. the further grievance of the applicant is that even from 1998, his increment has been stopped and he has not been getting any monetary benefits. the respondents' contention is that in terms of dopt's om dt.17.2.98, all ad hoc appointments which were continuing for more than one year will require approval of dopt and that where such approval has not been obtained, the pay and allowance etc., after 1.1.98 of such ad hoc appointees should be released only after getting approval from dopt. their contention is that since the applicant is continuing on ad hoc basis for a long period for which no approval of dopt was obtained, he could not be paid his increment from 1.1.98.25. even though the appointment of the applicant to the post of caretaker was on ad hoc basis, as already stated, the pay scales of the posts of caretaker and postal assistant i.e., the substantive post of the applicant, became identical from 1.1.96. if the applicant would have opted for the scale of his cadre post, he would have got his normal increments and the dopt om dt. 17.2.98 would not have any adverse effect on his increment. action under dopt om dt. 17.2.98 could have been initiated by the respondents to obtain prior approval of dopt in this regard, if the same was considered necessary. the applicant had suffered for his own laches as he failed to exercise the option for promotion to the cadre post. it appears from annexure-rviii that it is only on 3.2.2001 i.e., after filing of this o.a., the department started taking action for moving the dopt in this regard with unjsutified delay. however, once the applicant, after exercise of his option, is given promotion benefit in higher scale w.e.f. 22.11.95, this problem will not be there.26. now we come to the question as to whether the applicant can be granted the upgraded pay scale of caretaker i.e., rs. 5500-9000/- on the ground that he has been continuing in that post for a decade assuming that the applicant would not exercise any option for promotional scale.27. although no such specific prayer has been made in the o.a., this question has been brought on record by the applicant by filing an ma as already stated above. as already indicated above, based on the recommendation of the 5th cpc, the govt. of india issued an order on 30.6.99 (annexed to the o.a. as also to the reply). according to this circular, govt. decided to abolish the post of caretaker from all govt.offices and the caretaking duties are to be performed by the group c and group d staff who may be given certain allowance for the purpose.however, establishments where separate post of caretaker is required to be retained, the pay scale of the same should be fixed according to the floor area and complexity of the job and that the post should be merged with the general cadre of corresponding scale or cadre one grade below and the post should be filled up from willing persons of the cadre, who may be paid caretaking allowance as admissible. accordingly, the respondent authorities upgraded the post of caretaker in the scale of rs. 4000-6000/ to that of rs. 5500-9000/- as per order dated 20.2.2001 with immediate effect with the approval of the postal directorate, new delhi's order dt. 12.10.99 (annexure-rvii) and it was decided to fill up the post from bcr cadre, that is to say, those officials who got the second time bound promotion after 26 years.28. accordingly, a circular was also issued by the respondents on 24.3.2001 calling for applications from willing candidates who are in the identical pay scale of rs. 5500-9000/- or in the pay scale of rs. 5000-8000/- with 3 years service and a dpc was also held on 24.4.2001.the applicant's case was also directed to be considered by this tribunal as already stated above. the dpc records have been produced before us and we find that the applicant was held ineligible, he being not in the required pay scale of rs. 5500-9000/- or rs. 5000-8000/- with 3 years service.29. the learned counsel for the applicant by relying on the case of p.d. agarwal and ors v. state of up and ors. (1987) 3 scc 622=1987(3) slj 113 (sc) wherein it has been held that recruitment rules cannot be changed retrospectively to take away vested rights of existing employees, has contended that since the applicant has been continuing in the said post for a long time, he is entitled to get the upgraded pay scale. he has also relied on the case of asha nayar v. uoi and ors.1992(21) atc 290. in that case the applicant was already working on the upgraded post and the respondents wanted to amend the recruitment rules to the disadvantage of the applicant. in that context, it was held by the principal bench that any amendment to the recruitment rules should be effective prospectively without affecting the rights of the existing incumbents. the situation in the instant case is quite different. the applicant is not working in the upgraded post at all nor any retrospective effect has been given to the eligibility norms for filling up the upgraded post. therefore, these are of no help to the applicant.30. mr. ghose has also relied on the case decided by the patna bench in o.a. no. 216 of 1993 (sambhu kant jha v. uoi and ors) dt. 14.7.95. but no copy of the said unreported case has been produced. however, we have gone through the gist of that decision appearing at page 343 of swamynews, april, 1996. in that case the applicant initially appointed as a group d employee in the scale of rs. 70-90/-, was appointed as caretaker in the postal training centre, darbhanga in the scale of rs. 105-135/- (gr. c post) w.e.f. 25.6.73, which was revised to rs. 225-408/- after 3rd cpc. however, as per floor area norms, the said pay scale was upgraded to that of rs. 330-560/- subsequently and revised to that of rs. 1200-2040/- after 4th cpc. but the applicant was not given that scale although he was working in the said post. the patna bench held that the applicant was entitled to get that pay scale. here, it is not the case of the applicant that he has been denied the pay scale of the caretaker. on the other hand, he is getting the pay scale of rs. 1200-2040/- whereas his pay scale of his substantive cadre i.e., pa cadre was rs. 975-1660/-. that means he was in the higher pay scale and thereby he was getting higher pay than his seniors in his own cadre for doing special type of job. moreover, in the cited case, the applicant was a group d employee and was promoted in group c post and there is nothing to show that he was maintaining his lien in his former post.moreover, in that case, the upgradation was only dne grade higher whereas in the instant case, the upgradation was only one grade higher whereas in the instant case, the upgradation is 2/3 grades above. the fact situation is quite different.31. the ld. counsel for the respondents relied on air 1954 sc 215 (vice-chancellor, utkal university v. s.k. ghosh). the facts in those cases are totally different and we need not discuss the same.32. we find that in the instant case, the post of caretaker was upgraded to the scale of rs. 5500-9000/- on the basis of recommendation of the 5th pay commission and for filling up the post the respondents authorities fixed certain norms that only bcr officials are eligible to man the post. this is in accordance with the principle laid down by the govt. while upgrading the post. admittedly, no recruitment rules have been framed for the post of caretaker and after the upgradation, there also cannot be any recruitment rules since the incumbent to the post of caretaker has to be merged with the general cadre in corresponding scale. it has been held by the hon'ble supreme court in the case of ravi paul v. uoi and ors., (1995) 3 scc 300=1995(2) slj 205 (sc) that in the absence of recruitment rules, the appointment made by the executive order is not invalid. therefore, we cannot find any irregularity in the action of the respondents in this regard.33. even assuming for argument's sake that the applicant is entitled to get the upgraded pay scale of rs. 5500-9000/- as caretaker. in that event he has to be merged in the general cadre of corresponding category i.e., the bcr category. admittedly, the parent cadre of the applicant was postal assistant and there he was given pro forma promotion in the scale of rs. 4500-7000/- w.e.f. 22.11.95 on completion of 16 years service. if he is now to be directly inducted in the bcr cadre before completion of 26 years of service, his seniors in his parent cadre will be seriously prejudiced. furthermore, when the dpc meeting held on 23.4.2001 (copy of the minutes has been produced before us) has opened that the applicant is not eligible for the upgraded post and it selected a suitable person belonging to bcr cadre, this tribunal cannot sit in appeal over the decision of the dpc and substitute its recommendation, particularly when no mala fide or bias has been alleged against the dpc. in our view, there is no justifiable cause for the applicant to claim the upgraded post of caretaker when he is found ineligible for the same.34. in view of our elaborate discussions made above, we hold that the appointment of the applicant as caretaker w.e.f. 30.11.90 cannot be treated as regular one. we further hold that the applicant is not entitled to claim the upgraded pay scale to the caretaker i.e., the scale of rs. 5500-9000/-. however, we are of the view that the applicant should be given an opportunity to exercise option for getting the promotional scale of rs. 1400-2300/-w.e.f. 22.11.95 in his own cadre so that he is not prejudiced in any manner.35. in view of the above, we dispose of this o.a. with the following orders: (i) the applicant is not entitled to regular appointment on the post of caretaker, and he is also not entitled to the upgraded pay scale of rs. 5500-9000/-. (ii) if the applicant so desires, he may exercise his option, within one month from the date of communication of this order, in the matter of fixation of his pay in the higher scale of rs. 1400-2300 (since revised to rs. 4500-7000) which was granted to him on pro forma basis vide order dated 14.6.97 (annexure-c) and if such option is exercised, the respondents shall deal with the same according to rules so that he is not prejudiced in any manner, if, however, the applicant does not exercise any option, the respondents will be at liberty to act according to law.

Judgment:
1. Though this O.A., the applicant has prayed for a direction to the respondents to regularise his service on the post of Caretaker of GPO Building, Calcutta and a further direction to the respondents to grant him the benefit of fixation of pay in terms of 5th Pay Commission Report.

2. The applicant joined service as Postal Assistant in the scale of Rs. 975-1500/- on 22.11.79 at Calcutta GPO. Pursuant to a circular dated 27.10.90 inviting applications from willing Postal Assistants of GPO for filling up the post of Caretaker, GPO, Calcutta in the scale of Rs. 1200-2040/- on ad hoc basis, the applicant applied for the said post, he having the requisit qualifications as enumerated in the said circular. By an order dt. 28.11.90, the applicant was directed to work as Caretaker on ad hoc basis and on purely temporary measure. It was made clear that this arrangement would not confer any right upon him to continue in the post and that the same may be terminated at any time without notice (vide Annexure-A). Pursuant to the said order, the applicant took over charge of the post of Caretaker w.e.f. 30.11.90.

Subsequently by an order dt. 8.4.91, his ad hoc appointment as Caretaker was treated as officiating one and it was mentioned that his officiating promotion w.e.f. 30.11.90 would be taken into account towards usual period of probation.

3. According to the applicant, his lien in his parent cadre of Postal Assistant was maintained and he was also given One Time Bound Promotion w.e.f. 22.11.95 (i.e., on completion of 16 years service) on pro forma basis in the higher scale of Rs. 1400-2300/ as per order dt. 14.6.97 (Annexure-C). According to the applicant, although he was given such time bound promotion in his parent cadre on pro forma basis, he was not given any pay fixation benefit of the said higher scale. However, after the 5th Pay Commission, the pay scale of Postal Assistant was upgraded w.e.f. 1.1.96 to that of UDC i.e., Rs. 4000-6000/ which was also the revised pay scale of Caretaker.

4. On the recommendation of the 5th Pay Commission, Govt. of India decided to rationalise the cadre of Caretakers and it was decided that Group D and Group C staff borne on the regular establishment and deployed on caretaking duties, which is not to be treated as deputation to an ex cadre post, may be paid a Caretaking Allowance of Rs. 100/- and Rs. 200/- p.m. respectively as compensation for long hours of work required by them. It was further provided that those establishments which would continue to retain separate posts of Caretakers, those shall be merged in the general ministerial cadres in corresponding scales of pay and pay scale of such Caretakers was to be determined with reference to the floor area of the building concerned. In accordance with this principle, the post of Caretaker in the GPO, Calcutta was upgraded to the scale of Rs. 5500-9000/- by an order dt.

20.2.2001 i.e., after filing of this O.A.5. The applicant made a representation on 8.11.2000 (Annexure-E) wherein he prayed for grant of revised pay scale to him as, according to him, he was not getting any financial benefits since his appointment as Caretaker and even his increment had been stopped from 1998. The representation having not been considered, he has filed this O.A. for the reliefs mentioned above.

6. During the pendency of this O.A., the respondents issued a circular dated 24.3.2001 for filling up the upgraded post of Caretaker from amongst BCR (Biennieal Cadre Review) officials having in the identical pay scale of Rs. 5500-9000/- or in the scale of Rs. 5000-8000/- with three years service. The applicant prayed for an interim order for staying the said selection process by filing MA 264 of 2001 which was disposed of on 30.3.2001 directing the respondents to proceed with the selection process in which the applicant was also directed to be considered but they were prohibited to publish the result.

Subsequently, the respondents filed an MA being MA 491/2001 praying of leave of the Tribunal to publish the result. The said MA was also disposed of on 20.9.2001 directing the respondents to publish the result but the same should not be given effect to till the disposal of the O.A.7. The respondents contested the O.A. by filing a reply in which the facts stated by the applicant have not been disputed. It is, however, asserted that the applicant was appointed as Caretaker only on ad hoc basis and according to the terms of his appointment, he has no right to regularisation to the said post. It is also contended that the applicant retained his lien in his parent cadre of Postal Assistant and that he was also given one time bound promotion w.e.f. 22.11.95 on pro forma basis in higher scale of Rs. 1400-2300/-. But since the applicant did not exercise any option, no pay fixation benefit could be given to him. It is further contended that as per the Govt. of India decision contained in Finance Ministry's OM dt. 30.6.99 (Annexure-D to the O.A.), the post of Caretaker of GPO was upgraded with reference to the floor area vide CPMG's order dt. 20.2.2001 (Annexure-RVII) to the scale of Rs. 5500-9000/- and it was decided that the post should be filled up from amongst BCR officials depending on suitability. Accordingly, notice was issued inviting applications from willing candidates and DPC was also held on 23.4.2001 for selection of the candidate in which the case of the applicant was also considered as per direction of the Tribunal. But the applicant was found ineligible as he was not holding identical post carrying the scale of Rs. 5500-9000/- or one grade below scale of Rs. 5000-8000/- for 3 years as per requirement. Therefore, he could not be selected even though he has been working as Caretaker for a longtime on ad hoc basis. It is asserted that the applicant still belongs to his parent cadre of Postal Assistant and he will be repatriated once the selected person joins the upgraded post of Caretaker.

8. We have heard the learned Counsel for the parties at length and perused the documents placed on record including the departmental records produced by the ld. Counsel for the respondents.

9. The cardinal point to be decided in this case is whether the applicant's appointment as Caretaker w.e.f. 30.11.90 can be called as ad hoc or it is to be treated as regular one.

10. The Id. Counsel for the applicant contended that there is no recruitment rules for the post of Caretaker and as per eligibility criteria fixed by the Administrative Authority, the applicant was selected initially on ad hoc basis. Thereafter, a DPC was held and the DPC also selected him on the basis of his record and suitability and he was placed on probation. Therefore, the applicant cannot be said to be an ad hoc appointee after all these years. He further contended that when the post of Caretaker was upgraded, the applicant ought to have been appointed to the said post, he being the regular Caretaker.

11. Ld. Counsel for the respondents, on the other hand, has disputed this contention by stating that the appointment of the applicant was only on ad hoc basis as will be clear from the terms of his appointment at annexure-A dated 28.11.90 wherein it was clearly mentioned that his appointment was on ad hoc and on purely temporary measure and such appointment would not give him any right to regularisation.

12. Both parties have relied on some case laws in support of their respective contentions which we shall discuss at some later stage.

13. From Annexure-RI to the reply, we find an office note 23.10.90 wherein it is stated that the earlier incumbent of the post of Caretaker was going to retire on 30.11.90 and a draft circular inviting applications from eligible officials for the post of Caretaker was proposed to be circulated. The said circular was issued on 27.10.90 (Annexure-RII) inviting applications from willing Postal Assistants, who had rendered at least five years service and not more than 15 years service. It appears that the applicant applied and he was appointed as Caretaker as per order dt. 28.11.90 (Annexure-RIII) and ad hoc basis w.e.f. 30.11.90. From Annexure-RIV to the reply we find that a DPC meeting was held on 4.4.91 regarding appointment of Caretaker of Calcutta GPO. The DPC considered nine persons including the applicant, who was at Sl. No. 9. The DPC recommended the name of the applicant for appointment as Caretaker, GPO on ad hoc basis. It also approved the continuance of the applicant as Caretaker w.e.f. 30.11.90.

14. Mr. Ghosh, ld. Counsel for the applicant has drawn our attention to the order at Annexure-B dated 8.4.91, which apparently was issued after the aforesaid DPC meeting. It is mentioned in the said order that the applicant was appointed as Caretaker purely on ad hoc basis w.e.f.

30.11.90. But at the same time, it was indicated that the officiating service rendered by the applicant as Caretaker would be taken into account towards usual period of probation. It is contended by Mr. Ghosh that when a person is appointed on probation, it cannot be said to be on ad hoc basis. Ld. Counsel for the respondents has, however, tried to refute this contention by stating that the expression 'probation' was erroneously mention in the order. He contended that the DPC minutes will show that the appointment of the applicant was actually on ad hoc basis and nothing else. He stated that the applicant cannot take advantage of an administrative error. He further submitted that the post of Caretaker is an isolated post and it is always filled up from amongst the regular cadre of Postal Assistants with certain eligibility criteria as fixed by the authorities and the person so appointed is allowed to retain his lien in his parent cadre of Postal Assistant.

15. From the DPC minutes dt. 4.4.91, we find that the contention of the ld. Counsel for the respondents is somewhat correct. In the DPC recommendation, the appointment of the applicant was stated to be on ad hoc basis and there was no mention that he will be on probation.

Therefore, the order at Annexure-B dt. 8.4.91 seems to have been issued on erroneous assumption that the appointment of the applicant as Caretaker was a regular one and this is certainly an administrative error.

16. Be that as it may, the respondents have not been able to produce any recruitment rules for the particular post of Caretaker of GPO, Calcutta. However, from the copy of the circular dt. 27.10.90 (Annexure-RII) issued by the Director of Calcutta GPO inviting applications for the post of Caretaker of GPO on ad hoc basis in the scale of Rs. 1200-2040, the eligibility criteria mentioned was that the officials who rendered service in the department in P.A. cadre at least for 5 (five) years and not more than 15 years. Thus, it is quite clear that for the specific and isolated post of Caretaker of GPO, even though no recruitment rules have been placed on record, the eligibility criteria was fixed by the Executive Authority. It is now well settled that in the absence of statutory recruitment rules, the Executive Authority has the power to fix guidelines or norms for filling up a post. The applicant having fulfilled the criteria, applied for the post and was selected initially on ad hoc basis and thereafter, his selection was also approved by the DPC, when DPC selected a person, normally, the appointment is to be treated as regular one even though the appointment order may mentions it as on ad hoc basis. It may be possible that since the post of Caretaker in GPO is an isolated post and not in regular cadre, it is filled up on deputation or loan basis from the PA cadre, which is the normal practice in other Govt.

Departments also. This assumption finds support from the fact that the applicant as well as the respondents admitted that the applicant has been maintaining his lien in the PA cadre and that is why he was also given One Time Bound Promotion (OTBP) on pro forma basis w.e.f.

22.11.95 as per Annexure-C dated 14.7.97. Be it noted that such promotion was given to the higher scale of Rs. 1400-2300/-.

17. The respondents have, however, produced a circular dated 24.6.78 for filling up the post of Caretaker in the Directorate of P & T, New Delhi. As per this circular, the essential qualification has been prescribed as Matriculate and a Diploma in Sanitation with one year's experience. The pay scale was Rs. 380-640/-. Applications were invited from eligible Govt. Employees, who were holding posts carrying a scale of pay the minimum of which is not less than Rs. 330/-. It is contended by the respondents that these are recruitment rules for the post of Caretaker and since the applicant did not fulfil this qualification, he cannot be regularly appointed as Caretaker. We are unable to accept this contention. This particular circular dt. 24.6.78 is meant for P and T Directorate of New Delhi whereas the present post in question is for the Calcutta GPO. The pay scales of both the posts are also different. In the former case, the scale was Rs. 380-640/- whereas in the latter case it is Rs. 330-560/- i.e., UDC scale. Of course, there was another post in the scale of Rs. 350-560/ but it was made clear that the said post would also be ungraded to Rs. 360-640/-. Therefore, the requirements mentioned in the said circular cannot be made applicable to the present case. This leads us to the obvious conclusion that there was no recruitment rule for the post of Caretaker, GPO and it is filled up on deputation or loan basis from PA cadre, which was in lower scale than that of Caretaker.

18. Relying on the decision of the Constitution Bench of the Apex Court in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. (1990) 2 SCC 715=1990(2) SLJ 40 (SC), Mr. Ghosh has contended that if the initial appointment is according to rules, then the appointment cannot be called ad hoc and all benefits should be extended to such appointee. He has relied on the decision of the Principal Bench Bench in O.A. 1378 of 1989 dt.

18.10.96, but no copy of the order nor any citation has been produced before us. We are, therefore, unable to discuss the same. Mr. Ghosh also relied on the case of UOI and Ors v. Pratap Narain and Ors. (1992) 20 ATC 756 (SC) wherein it was held by the Apex Court following its earlier decision of Narender Chadha's case, 1986 SCC (L and S) 226, that when ad hoc promotees are continuing for long years, they should be treated as regular. But this case relates to fixation of seniority of direct recruit -vis-a-vis promotees, who were given promotion on ad hoc basis. The situation in the present case is totally different. He has also relied on a Calcutta Bench decision in the case of Uma Shankar Prasad v. UOI and Ors., 1992(2) ATJ 298=1992(2) SLJ 106 (SC). In that case the applicant was promoted on ad hoc basis and Vice-Principal of System Technical School and continued for over decades satisfactorily and thereafter he was discharged. In those circumstances, the Tribunal held that the applicant was entitled to regularisation. The fact situation in the present case is distinguishable as the applicant herein has not been discharged, rather he has been given promotion in higher post in his own line. On the other hand, the Id. Counsel for the respondents has relied on the decision of the Supreme Court in the case of Food Corporation of India v. Thaneswar Kalita and Ors., (1995) 29 ATC 573=1995(2) SLJ 150 (SC) to contend that ad hoc promotion de hors the rules, even though continuing for a long time, could not be construed to be a regular appointment.

19. We have given our anxious consideration to the rival contentions and as also the case laws cited by both parties. In the instant case, it is not in dispute that the applicant originally belonged to PA cadre and he was selected for appointment as Caretaker which was in a higher scale on ad hoc basis w.e.f. 30.11.90. The respondents held a DPC on 4.4.91 which also approved the appointment of the applicant as Caretaker on ad hoc basis. No doubt the applicant continued in his ad hoc post for a long time and there is no complaint against him. His main relief is for regularisation in the post of Caretaker. It is the admitted position that the lien of the applicant is being maintained in his substantive cadre of Postal Assistant and he was also given time bound promotion after 16 years on pro forma basis in view of the fact that he was working in an ex cadre post. Now if the applicant is treated as regular by virtue of his long service on ad hoc basis and also because of his selection through DPC, as contended by the ld.Counsel for the applicant, in that event, he lien cannot be maintained in the PA cadre from the date he is treated as regular Caretaker and in that case, he will be in a disadvantageous position because the post of Caretaker being an isolated and ex cadre post, he cannot have any further promotion for all times to come. To avoid this stagnating position, the respondents have kept him on ad hoc basis and maintained his lien in his parent cadre for his benefit so that he can get promotion in normal channel as per rules. It is not understandable, why the applicant wants regularisation in the isolated post of Caretaker and face the consequence of no further promotion in his service career.

In all fairness, therefore, we cannot find fault with the decision of the respondents to keep the applicant on ad hoc basis in order to protect his chance of promotion in his own line, which is beneficial for him. Moreover, w.e.f. 1.1.96 i.e., after 5th Pay Commission, the pay scale of both the posts of Postal Assistant and Caretaker became identical and according to the applicant's own admission, he was not getting any monetary benefits for doing the work of Caretaker which was earlier in a higher scale than that of PA. It is beyond our comprehension why the applicant still claims regularisation in the post of Caretaker. It is true that the post of Caretaker was upgraded in the year 2001 after the filing of this O. A. Therefore, it cannot be said that the applicant knew beforehand that he may have a chance to get such upgraded scale and that is why he desired to be regularised as Caretaker. Apart from that, even if the upgradation order was passed by the DOPT in the year 1999 based on which the post of Caretaker in the GPO was upgraded in the year 2001, while filing this application, the applicant has not sought any specific relief in that regard.

20. Considering the matter from all its aspects, we are of the opinion that the appointment of the applicant as Caretaker was purely on ad hoc basis and he cannot be considered to be regularly appointed on the post in the facts and circumstances of the case as discussed above.

21. One of the grievance of the applicant is that even though he was allowed pro forma promotion in the higher scale of Rs. 1400-2300 w.e.f.

22.11.95 vide order dt. 14.6.97 (Annexure-C), he wa's not given any pay fixation benefit. Be it noted that prior to 1.1.96 i.e., coming into force of the 5th Pay Commission scales, the Postal Assistants were in the scale of Rs. 975-1660/- whereas the applicant was continuing in the higher scale of Rs. 1200-2040/- since 30.11.90 i.e., prior to his getting such pro forma promotion. After 1.1.96 the pay scale of Postal Assistant was revised to Rs. 4000-6000/- which was also the revised scale of the Caretaker from that date. The scale of Rs. 1400-2300/- was revised to Rs. 4500-70007-. The applicant complains that he was not given the benefit of this higher scale on actual basis. The respondents contend that since the applicant did not exercise any option to avail this benefit, he could not be given the higher scale. Their case is that had the applicant opted for the higher scale, he could have been released from the post of Caretaker to be repatriated to his parent cadre to enjoy the benefit of higher scale, which is a supervisory post.

22. We have gone through the promotion order at Annexure-C dated 14.6.97. The name of the applicant appears at Sl. No. 2 and he was given pro forma promotion to the scale of Rs. 1400-2300 w.e.f. 22.11.95 i.e. on completion of 16 years service. The order clearly stipulates that the officials who wish to give options for chosing the date for fixation of pay under FR 22(1)(a)(1) may do so. Since the benefit of FR 22(1)(a)(1) is involved, it is a case of promotion with higher responsibility. It is admitted that the applicant has not given any option. The pro forma promotion is given under "Next Below Rule" in terms of FR 30 (now incorporated in FR 22) to protect an official in apost (whether within the cadre of his service or not) who, for any reason; is prevented from officiating in his turn in a post on higher scale or grade borne on the cadre of the service to which he belongs.

Although there is no provision in the FR that in order get pro forma promotion benefit, one has to exercise option, but for the purpose of pay fixation, option is required which is also indicated in the promotion order itself. However, in terms of para 4 of GOI decision No.(29) below FR 22, it is clearly provided that where an officer is given promotion under 'next below rule,' he cannot be retained in the special post i.e., ex, cadre post, if the pay attached thereto is lower than that admissible to him under the 'next below rule' for more than six months beyond the date from which the 'nextbelowrule' begins to operate. In the instantcase, the applicant was given pro forma promotion in the scale of Rs. 1400-2300/w.e.f. 22.11.95 which was surely higher than that of the ex cadre post of Caretaker in the scale of Rs. 1200-2040/-. Therefore, the applicant could not be kept as Caretaker, which was in a lower scale, beyond six months from the date of promotion. Perhaps, fearing his repatriation, the applicant did not opt for the promotion and kept silent regarding option. It is very curious that although the applicant, on promotion to higher grade, will be posted in the same GPO, he did not opt for such promotion and now he complains that he was not given the benefit of promotion. It is also equally unfortunate that the respondents also did not take any action and kept the applicant as Caretaker for many years thereafter on the pretext that no option was given by the applicant, though they ought to have taken action immediately for repatriation of the applicant to his parent cadre in higher post, particularly, when the pay scale of the posts of Caretaker and PA became identical w.e.f. 1.1.96. They have unnecsssarily complicated the issue.

23. In any event, it is for the applicant to exercise option for the purpose of pay fixation and if he exercises such option, the respondents should take necessary action on the same according to rules so that the interest of the applicant is not in any way prejudiced to get the promotional benefits from the date it became due to him.

24. The further grievance of the applicant is that even from 1998, his increment has been stopped and he has not been getting any monetary benefits. The respondents' contention is that in terms of DOPT's OM dt.

17.2.98, all ad hoc appointments which were continuing for more than one year will require approval of DOPT and that where such approval has not been obtained, the pay and allowance etc., after 1.1.98 of such ad hoc appointees should be released only after getting approval from DOPT. Their contention is that since the applicant is continuing on ad hoc basis for a long period for which no approval of DOPT was obtained, he could not be paid his increment from 1.1.98.

25. Even though the appointment of the applicant to the post of Caretaker was on ad hoc basis, as already stated, the pay scales of the posts of Caretaker and Postal Assistant i.e., the substantive post of the applicant, became identical from 1.1.96. If the applicant would have opted for the scale of his cadre post, he would have got his normal increments and the DOPT OM dt. 17.2.98 would not have any adverse effect on his increment. Action under DOPT OM dt. 17.2.98 could have been initiated by the respondents to obtain prior approval of DOPT in this regard, if the same was considered necessary. The applicant had suffered for his own laches as he failed to exercise the option for promotion to the cadre post. It appears from Annexure-RVIII that it is only on 3.2.2001 i.e., after filing of this O.A., the department started taking action for moving the DOPT in this regard with unjsutified delay. However, once the applicant, after exercise of his option, is given promotion benefit in higher scale w.e.f. 22.11.95, this problem will not be there.

26. Now we come to the question as to whether the applicant can be granted the upgraded pay scale of Caretaker i.e., Rs. 5500-9000/- on the ground that he has been continuing in that post for a decade assuming that the applicant would not exercise any option for promotional scale.

27. Although no such specific prayer has been made in the O.A., this question has been brought on record by the applicant by filing an MA as already stated above. As already indicated above, based on the recommendation of the 5th CPC, the Govt. of India issued an order on 30.6.99 (annexed to the O.A. as also to the reply). According to this circular, Govt. decided to abolish the post of Caretaker from all Govt.

offices and the caretaking duties are to be performed by the Group C and Group D staff who may be given certain allowance for the purpose.

However, establishments where separate post of Caretaker is required to be retained, the pay scale of the same should be fixed according to the floor area and complexity of the job and that the post should be merged with the general cadre of corresponding scale or cadre one grade below and the post should be filled up from willing persons of the cadre, who may be paid caretaking allowance as admissible. Accordingly, the respondent authorities upgraded the post of Caretaker in the scale of Rs. 4000-6000/ to that of Rs. 5500-9000/- as per order dated 20.2.2001 with immediate effect with the approval of the Postal Directorate, New Delhi's order dt. 12.10.99 (Annexure-RVII) and it was decided to fill up the post from BCR cadre, that is to say, those officials who got the second time bound promotion after 26 years.

28. Accordingly, a circular was also issued by the respondents on 24.3.2001 calling for applications from willing candidates who are in the identical pay scale of Rs. 5500-9000/- or in the pay scale of Rs. 5000-8000/- with 3 years service and a DPC was also held on 24.4.2001.

The applicant's case was also directed to be considered by this Tribunal as already stated above. The DPC records have been produced before us and we find that the applicant was held ineligible, he being not in the required pay scale of Rs. 5500-9000/- or Rs. 5000-8000/- with 3 years service.

29. The learned Counsel for the applicant by relying on the case of P.D. Agarwal and Ors v. State of UP and Ors. (1987) 3 SCC 622=1987(3) SLJ 113 (SC) wherein it has been held that recruitment rules cannot be changed retrospectively to take away vested rights of existing employees, has contended that since the applicant has been continuing in the said post for a long time, he is entitled to get the upgraded pay scale. He has also relied on the case of Asha Nayar v. UOI and Ors.

1992(21) ATC 290. In that case the applicant was already working on the upgraded post and the respondents wanted to amend the recruitment rules to the disadvantage of the applicant. In that context, it was held by the Principal Bench that any amendment to the recruitment rules should be effective prospectively without affecting the rights of the existing incumbents. The situation in the instant case is quite different. The applicant is not working in the upgraded post at all nor any retrospective effect has been given to the eligibility norms for filling up the upgraded post. Therefore, these are of no help to the applicant.

30. Mr. Ghose has also relied on the case decided by the Patna Bench in O.A. No. 216 of 1993 (Sambhu Kant Jha v. UOI and Ors) dt. 14.7.95. But no copy of the said unreported case has been produced. However, we have gone through the gist of that decision appearing at page 343 of Swamynews, April, 1996. In that case the applicant initially appointed as a Group D employee in the scale of Rs. 70-90/-, was appointed as Caretaker in the Postal Training Centre, Darbhanga in the scale of Rs. 105-135/- (Gr. C post) w.e.f. 25.6.73, which was revised to Rs. 225-408/- after 3rd CPC. However, as per floor area norms, the said pay scale was upgraded to that of Rs. 330-560/- subsequently and revised to that of Rs. 1200-2040/- after 4th CPC. But the applicant was not given that scale although he was working in the said post. The Patna Bench held that the applicant was entitled to get that pay scale. Here, it is not the case of the applicant that he has been denied the pay scale of the Caretaker. On the other hand, he is getting the pay scale of Rs. 1200-2040/- whereas his pay scale of his substantive cadre i.e., PA cadre was Rs. 975-1660/-. That means he was in the higher pay scale and thereby he was getting higher pay than his seniors in his own cadre for doing special type of job. Moreover, in the cited case, the applicant was a Group D employee and was promoted in Group C post and there is nothing to show that he was maintaining his lien in his former post.

Moreover, in that case, the upgradation was only dne grade higher whereas in the instant case, the upgradation was only one grade higher whereas in the instant case, the upgradation is 2/3 grades above. The fact situation is quite different.

31. The ld. Counsel for the respondents relied on AIR 1954 SC 215 (Vice-Chancellor, Utkal University v. S.K. Ghosh). The facts in those cases are totally different and we need not discuss the same.

32. We find that in the instant case, the post of Caretaker was upgraded to the scale of Rs. 5500-9000/- on the basis of recommendation of the 5th Pay Commission and for filling up the post the respondents authorities fixed certain norms that only BCR officials are eligible to man the post. This is in accordance with the principle laid down by the Govt. while upgrading the post. Admittedly, no recruitment rules have been framed for the post of Caretaker and after the upgradation, there also cannot be any recruitment rules since the incumbent to the post of Caretaker has to be merged with the general cadre in corresponding scale. It has been held by the Hon'ble Supreme Court in the case of Ravi Paul v. UOI and Ors., (1995) 3 SCC 300=1995(2) SLJ 205 (SC) that in the absence of recruitment rules, the appointment made by the Executive Order is not invalid. Therefore, we cannot find any irregularity in the action of the respondents in this regard.

33. Even assuming for argument's sake that the applicant is entitled to get the upgraded pay scale of Rs. 5500-9000/- as Caretaker. In that event he has to be merged in the general cadre of corresponding category i.e., the BCR category. Admittedly, the parent cadre of the applicant was Postal Assistant and there he was given pro forma promotion in the scale of Rs. 4500-7000/- w.e.f. 22.11.95 on completion of 16 years service. If he is now to be directly inducted in the BCR cadre before completion of 26 years of service, his seniors in his parent cadre will be seriously prejudiced. Furthermore, when the DPC meeting held on 23.4.2001 (copy of the minutes has been produced before us) has opened that the applicant is not eligible for the upgraded post and it selected a suitable person belonging to BCR cadre, this Tribunal cannot sit in appeal over the decision of the DPC and substitute its recommendation, particularly when no mala fide or bias has been alleged against the DPC. In our view, there is no justifiable cause for the applicant to claim the upgraded post of Caretaker when he is found ineligible for the same.

34. In view of our elaborate discussions made above, we hold that the appointment of the applicant as Caretaker w.e.f. 30.11.90 cannot be treated as regular one. We further hold that the applicant is not entitled to claim the upgraded pay scale to the Caretaker i.e., the scale of Rs. 5500-9000/-. However, we are of the view that the applicant should be given an opportunity to exercise option for getting the promotional scale of Rs. 1400-2300/-w.e.f. 22.11.95 in his own cadre so that he is not prejudiced in any manner.

35. In view of the above, we dispose of this O.A. with the following orders: (i) The applicant is not entitled to regular appointment on the post of Caretaker, and he is also not entitled to the upgraded pay scale of Rs. 5500-9000/-.

(ii) If the applicant so desires, he may exercise his option, within one month from the date of communication of this order, in the matter of fixation of his pay in the higher scale of Rs. 1400-2300 (since revised to Rs. 4500-7000) which was granted to him on pro forma basis vide order dated 14.6.97 (Annexure-C) and if such option is exercised, the respondents shall deal with the same according to rules so that he is not prejudiced in any manner, If, however, the applicant does not exercise any option, the respondents will be at liberty to act according to law.