IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 WP(C).No. 18926 of 2004(S) -------------------------- AGAINST THE ORDER DATED 29/04/2004 IN OA.250/2002 IN OA.1005/2001 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: ------------ MARUTI BHOYI, REGIONAL PROVIDENT FUND COMMISSIONER (GRADE II), JAYALAKSHMI PLAZA, 1ST FLOOR, ANNA SALAI, SWARNAPURI, SALEM-636004. BY ADV. SRI.RAJESH THOMAS SRI.MATHAI M PAIKADAY(SR.) SRI.RAJESH THOMAS RESPONDENTS: ------------- 1. R.VENKITARAMAN, ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. N.SATHEESAN, ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. V.R.SUBRAMANIAN, ASSISTANT PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. CENTRAL BOARD OF TRUSTEES EMPLOYEES' PROVIDENT FUNDS, BHAVISHYANIDHI BHAVAN, 14, BIKAJI CAMA PLACE, NEW DELHI-110 066, REP. BY ITS SECRETARY. WPC NO.18926/2004 5. THE CENTRAL PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUND ORGANISATION, BHAVISHYANIDHI BHAVAN, 14, BIKAJI CAMA PLACE, NEW DELHI-110 066. 6. THE REGIONAL PROVIDENT FUND ORGANISATION BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004. 7. SHRI CHANDRAMOULI CHAKROBORTHY, REGIONAL P.F.COMMISSIONER (GRADE II), DEPUTY DIRECTOR, INFORMATION SERVICE, HEAD OFFICE, BHAVISHYANIDHI BHAVAN, 14, BIKAJI CAMA PLACE, NEW DELHI-110 066. 8. SHRI NARAYANA KAMMA, REGIONAL P.F. COMMISSIONER, E.P.F. ORGANISATION, SUB REGIONAL OFFICE, SHYAMSUNDAR THEATRE COMPLEX, NO.12, LOKRANJAN MAHAL ROAD, MYSORE-10. 9. SMT.ABRAHAM KAVITHA, REGIONAL P.F. COMMISSIONER (GRADE II), E.P.F. ORGANISATION, REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, 37, ROYA PETTAH HIGH ROAD, CHENNAI-74. BY ADV. SRI.N.N. SUGUNAPALAN, SC, P.F. FOR R4 TOR6 SRI.K.VINOD CHANDRAN FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2008, ALONG WITH WPC NOS. 26768 OF 2004, 26793 OF 2004 AND 32832 OF 2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.18926/2004 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE COMMON ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL DATED 29/04/2004 IN O.A.NOS.1005/01 AND 250/02. P2 : COPY OF THE ORIGINAL APPLICATION NO.1005/2001 FILED BY THE 1ST RESPONDENT. P3 : COPY OF THE REPLY WITHOUT EXHIBITS FILED BY RESPONDENTS 1 TO 3 IN O.A.NO.1005/2001. P4 : COPY OF THE REJOINDER FILED BY THE APPLICANT IN O.A.NO.1005/2001. P5 : COPY OF THE REPLY TO THE REJOINDER FILED BY RESPONDENTS 1 TO 3 IN O.A.NO.1005/2001. P6 : COPY OF THE PROPOSAL FOR DIRECT RECRUITMENT DATED 21/11/1996 ISSUED ON BEHALF OF 5TH RESPONDENT. RESPONDENT'S EXHIBITS ANNEXURE R-2(A) : COPY OF THE ORDER OF THE CAT DATED 29/07/2003. ANNEXURE R-2(B) : COPY OF the CORIGENDUM BEARING NO.HRM-1/A.9(9) 2002/36812 DATED 14/08/2003. ANNEXURE R-2(C) : COPY OF THE ORDER BEARING NO.HRM-1/A.9(14) 2003/5311 DATED 23/10/2003. ANNEXURE R-2(D) : COPY OF THE ORDER BEARING NO.HRM-1/A.9(14) 2003/73227 DATED 26/12/2003. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. ------------------------- WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004 --------------------------------- Dated, this the 2nd day of July, 2008 J U D G M E N T Ramachandran Nair, J. The question involved in these four connected cases is whether the persons appointed on promotion to the cadre of Assistant Provident Fund Commissioners are entitled to seniority by taking into account their period of service in that post on an ad hoc basis. 2. We have heard senior counsel Shri. Mathai M. Paikeday appearing for the petitioners in WP(C) Nos.18926/04 and 32832/04 and senior counsel Shri.N.N.Sugunapalan appearing for the Provident Fund Organisation, petitioners in WP(C) Nos.26768/04 and 26793/04, and Shri.Suresh appearing for the contesting respondents. 3. Petitioners in writ petition Nos.18926, 32832 of 2004 are direct recruitees appointed to the post of Assistant Provident Fund Commissioners during the year 1994-95 from a list prepared by the UPSC. However the contesting respondents were given ad hoc promotion to the post of Assistant Provident Fund WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004 -2- Commissioners during the years 1993-94 and 1994-95. It is specifically mentioned in Ext.P2 series of appointment orders produced in WP(C) No.32832/2004 of the contesting respondents that their appointment is on ad hoc basis and the post given to them were reserved for direct recruitees to be filled up later. It is conceded that based on seniority and eligibility, the contesting respondents were later appointed on regular basis to the post of Assistant Provident Fund Commissioners. Even though, appointment orders were issued to the contesting respondents without giving retrospectivity for their promotion, they did not challenge the same. However, when a combined seniority list of promotees and direct recruitees in the cadre of Assistant Provident Fund Commissioner is published in the year 1999, which is produced as Ext.P2 in WP(C) No.18926/04, the contesting respondents challenged the same. Even though the list contains 396 persons, the Central Administrative Tribunal entertained the challenge against the seniority list in two O.As filed, one by one person and another by two persons. In one O.A. only one direct recruitee is arrayed as contesting respondent and in the other two are made as respondents. In the normal course a seniority list should be allowed to be contested only after notice to all concerned WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004 -3- or after giving public notice to give opportunity to those desiring to contest the same. In any case, the Tribunal proceeded to decide the case on merits and the impugned order was passed holding that promotees were entitled to promotion with back date, if there were vacancies available to be filled up by promotees. It is against this order, the Organisation as well as the four direct recruitees have approached this Court. 4. Learned counsel for petitioners has referred to two decisions of the Supreme Court in The Direct Recruit Class-II Engineering Officers' Association and others Vs. State of Maharashtra and others, reported in AIR 1990 Supreme Court 1607 and in A.N.Sehgal and others Vs. Raje Ram Sheoram and others, reported in AIR 1991 Supreme Court 1406, and contended that persons promoted are not entitled to seniority for the period they were holding the posts on ad hoc basis. The principle laid down by the Constitution Bench of the Supreme Court in the above first decision is as follows :- “To sum up, we hold that : (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004 -4- 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.” Learned counsel appearing for the petitioners has also brought to our notice an Office Memorandum issued by the Government of India on 03/03/2008, by which instructions have been issued for fixing seniority. Clause (3) of the said office memorandum is extracted hereunder. “3. Some references have been received seeking clarifications regarding the term 'available' used in the preceding para of the O.M. dated 03/07/1986. It is hereby clarified that while the inter-se seniority of direct recruits and promotees is to be fixed on the basis of the rotation of quota of vacancies, the year of availability, both in the case of direct recruits as well as the promotees, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results / selection and completion of pre- appointment formalities as prescribed. It is further clarified that when appointments against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the Persons so appointed shall not get seniority of any earlier year (viz. year of Vacancy / panel or year in which recruitment process is initiated) but should get the seniority of WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004 -5- the year in which they are appointed on substantive basis. The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post / service. Going by the above decision of the Supreme Court and the G.O. the contesting respondents are not entitled to reckon their ad hoc services for the purpose of seniority. Besides this, we find that the seniority list is prepared based on appointment orders issued for the post of Assistant Provident Fund Commissioners to direct recruitees and promotees. Even though promotions were given to the contesting respondents without any retrospective effect, they did not challenge the said orders. The Employees Provident Fund Staff (Fixation of Seniority) Regulations 1989 prescribed under the Employees Provident Fund Act does not provide for giving seniority for the period a person was given ad hoc promotion in the cadre. In fact, Rule 5 dealing with relative seniority between direct recruitees and promotees specifically states that seniority shall be determined according to rotation of vacancies based on quotas. It is seen from the orders promoting the contesting respondents on ad hoc basis that such appointments were made to the posts reserved for direct recruitees. Obviously, the contesting respondents were WP(C) Nos. 18926, 26768, 26793 & 32832 of 2004 -6- not entitled to be appointed to those posts, which were reserved for direct recruitees. However, according to them, when DPC met five years after their appointment, they found that there were posts available earlier to be filled up through promotion. However, the proceedings of the DPC were neither produced before the CAT nor before us. In any case, the DPC's recommendations, if any, made to appoint the contesting respondents to the post of Assistant Provident Fund Commissioners with an anterior date, is not seen accepted by the appointing authority and the contesting respondents have not challenged the same. Having accepted their promotions on regular basis in 1999, we do not think the contesting respondents are entitled to seniority with retrospective effect. We therefore, allow the writ petitions by vacating the order of the Tribunal. (C.N.RAMACHANDRAN NAIR, JUDGE) (V.K.MOHANAN, JUDGE) jg