WP(C) 181/2009 BEFORE THE HON’BLE JUSTICE MR B.K. SHARMA JUDGEMENT AND ORDER (ORAL) Heard Mr. M. Singh, learned counsel for the petitioner as well as Mr. A .K. Bora, learned CGC appearing for the respondents. The petitioner has filed th is writ petition with the following prayer :- In the premises above, it is prayed that this Hon’ble Court be pleased to issue rule upon the respondents to show cause as to why a writ of Mandmus should not be issued commanding the respondents to pass necessary orders for fixing seniori ty and promotion to the next higher post/posts and also direct that the amount o f Rs. 30,799/- be refunded with interest and after cause/causes are shown and af ter hearing the parties further pleased to make the rule absolute and / or pass any other appropriate orders/direction as may be deemed fit and proper and for t his the petitioner shall every pray. 2. The petitioner was appointed in the BSF by Annexure-I appointment order dated 31.8.89. The appointment was provisional subject to passing Stenography Te st at the speed of 80 WPM in English or Hindi within one year from the date of a ppointment, failing which the service was to be terminated without any notice. T he petitioner, although, continued in service but could not qualify in the Steno graphy Test within the stipulated period of one year. However, eventually he cou ld qualify in the same that was conducted in the year 1998. By that time the pet itioner had attempted 7th time to qualify in the said test. 3. Consequent upon the said qualification obtained by the petitioner, the a uthority in the BSF passed the Annexure-3 order dated 13.1.2000 stating the afor esaid fact and stipulating that he would draw annual increment from the date of qualifying the Stenography test as per the instruction contained under FR 26 (13 and 14) without any arrear for the period prior to the date of qualifying the t est. As a consequence of the said order, an amount of Rs. 30,799/- was ordered t o be recovered from the petitioner, which he had drawn before qualifying the Ste nography test as increments. Another consequence that followed was that the serv ice of the petitioner was regularized prospectively from the date of qualifying the Stenography test (18.12.98) and fixation of the seniority on that basis. 4. According to the petitioner, although he was provisionally appointed but he having continued in service with eventual clearing of the Stenography test, he is entitled to get all service benefits including retrospective regularizatio n and counting of seniority from such date with consequential benefits of increm ents. 5. In the counter affidavit filed by the respondents, it has been stated th at the petitioner having joined the services of the BSF with his eyes wide open in acceptance of the provisional appointment, he cannot turn around the same so as to contend that he is entitled to get retrospective regularization of service with consequential seniority. As regards the benefit of increments, the respond ents have referred to GOI’s instruction No. 13 & 14 finds mention under FR-26. T he said two instructions are dated 8.6.1975 and 29.9.1992. The instruction dated 8.6.1975 provides that in the case of persons appointed to the post of LDCs, wh ether before or after 13th July, 1964, who passed the Type Writing Test at the s peed of 30 words per minute subsequent to the date on which their increments fal l due, their increments from the date of test on which the individual concerned passed and that no arrear of increment should be allowed but the normal incremen ts accrued should be allowed from the date of normal annual date being regained. 6. Strictly speaking, the aforesaid OM is applicable only to those cases of LDCs who could not clear the Type-writing test before the increment fell due. T here is nothing to indicate that the said OM would also be applicable to the cas es of appointees in the post of SI (Steno). That apart, as per the provisions of FR 24, an increment shall ordinarily be drawn as a matter of course unless it i s withheld. The ground of withholding of the same could be because of misconduct or the work being not satisfactory. FR 26 prescribes the conditions on which se rvice counts for increment in a time scale. 7. None of the conditions speaks of denial of increment, in the kind of sit uation in which the petitioner was from 1989 to 1998, during which he could not clear the Stenography test. However, he could clear the same in 1998. Therefore, in my opinion, it will be inappropriate to recover the benefit of increment whi ch the petitioner had derived during the said period from 1989 to 1998. In this connection, I may refer to the decision of this Court in Tarun Tamuli Vs. State of Assam and others reported in (2001) 1 GLT 87, in which under somewhat similar circumstances it has been held that the benefits of increments which the tempor ary appointees appointed under APSC (Adhoc) Service Rules, 1986 could not have b een withdrawn. 8. As regards the claim of the petitioner for retrospective regularization of service and counting of seniority on that basis, same will have to be conside red in reference to the nature of appointment of the petitioner. In the order of appointment dated 31.8.1989, it was clearly stipulated that the appointment was provisional and subject to passing Stenography Test. It was also stipulated tha t in case of failure to clear the test, his service would be liable to be termin ated without any notice. The petitioner having failed to qualify in the Stenogra phy test, his service was liable to be terminated in terms of the conditions sti pulated in the provisional order of appointment. Had his service been terminated , he could not have contended that such action was bad in law. The very appointm ent of the petitioner being conditional and / or provisional, he was bound by th e terms and conditions of the said appointment order. 9. The petitioner could clear the Stenography test on his 7th attempt and b y the time he could clear the same, 9 (nine) years had elapsed. In the mean time , many of his colleagues or even juniors must have cleared the Stenography Test. In such a situation, the said incumbent having been conferred with the benefits of regularization and seniority from the date of clearing the test, even otherw ise also, the petitioner cannot claim that his service should be regularized wit h consequential seniority from the date of initial appointment. 10. Although in the writ petition, the petitioner has stated in paragraph 7 that some other similarly situated persons who also could not qualify in the Ste nography Test in one attempt but had qualified at a later point of time, have be en granted retrospective regularization with seniority and also with consequenti al promotion but the respondents have categorically denied the same in their cou nter affidavit. In this connection, Mr. Bora, learned CGC has referred to the st atements made in para 14 of the said affidavit. For a ready reference, the same is quoted below :- 14. That regarding the statements of paragraph 7.4 of the writ petition the deponent denies those statements as the same are incorrect, preposterous and mis leading and states that it is a matter of fact that from time to time many provi sionally appointed personnel have been eventually promoted to next higher rank a fter being found fit for promotion by duly constituted departmental promotion co mmittee. However, it is pertinent to mention that the date of regular appointmen t / seniority in the rank of SI/Steno in respect of personnel mentioned at Sl. N o. 01 to 05 of Annexure-8 of the writ petition were reckoned from the date of qu alifying requisite typing / stenography test and the personnel mentioned from Sl . No. 6 to 17 were regularly appointed candidates and they were promoted to the rank of Inspector on their own term as per seniority and therefore there is no d iscriminatory action was taken against the writ petitioner as the promotion give n to the personnels mentioned at the Annexure-8 is proper and just as per rules and instructions of the department. 11. In paragraph 11 of the counter affidavit, it has been stated that the is sue relating to fixation of seniority in respect of the petitioner and other sim ilarly situated personnel was taken up with the Ministry of Home Affairs who in turn in consultation with the Department of Personnel and Training clarified tha t seniority of all such personnel could be reckoned from the date of clearing th e stenography test. 12. When the petitioner was appointed provisionally and subject to passing t he stenography test, it cannot be said that his appointment was regular for all purposes. Otherwise, he would not have attempted to clear the stenography test. His such attempt was for as many as 7 times when he could clear the test in the year 1998. The BSF authority passed the Annexure-3 order dated 13.1.2000 deeming his appointment to be regular w.e.f. 18.12.1998. To grant seniority to the peti tioner from his initial date of appointment in 1989 irrespective of clearing the stenography test will be anti thesis to the terms of appointment and detriment al to the interest of other BSF personnel. 13. Apart from the above, the petitioner has also not challenged the Anenxur e-3 order dated 13.1.2000 and / or any consequential order fixing his date of re gularization and seniority. As to what is the prayer in the writ petition, has b een noted above. It appears that the petitioner is concerned only with the recov ery of the amount in question which he had earned by way of increments during th e period of provisional appointment during 1989 - 1998, which has already been d ealt with above. 14. For all the aforesaid reasons, I am not inclined to accept the submissio n made by the learned counsel for the petitioner for petitioner’s regularization of service from the initial date of appointment in 1989 with consequential seni ority, etc. Thus, the Annexure-3 order dated 13.1.2000 still hold the field subj ect to the condition that there shall be no recovery of the amount the petitione r had already drawn towards increment during the provisional period of service f rom 1989 to 1998, in other words, the petitioner will be entitled to the benefit s of increment for the said period. 15. At this stage, Mr. Singh, learned counsel for the petitioner referring t o the Annexure-10 reply to the legal notice submits that the issue relating to r etrospective regularization and seniority is still under consideration of the Mi nistry. However, as noted above, in the counter affidavit filed by the responden ts, it has been stated that the issue has been decided by the Home Ministry in c onsultation with the Department of Personnel and Training of the Govt. of India. Be that as it may, in case any further decision in the Ministry is pending, nat urally the said decision shall also govern the case of the petitioner and all ot hers. 16. With the above observations, the writ petition stands disposed of, witho ut however, any order as to costs.