Delhi High Court

Sh. S.C. Sharma And Ors., Smt. Asha ... vs Union Of India (Uoi) And Ors. on 7 March, 2002

Equivalent citations: 2002(64)DRJ361

Author:
A.K. Sikri

Bench:
S.B. Sinha
,
A.K. Sikri

JUDGMENT

A.K. Sikri, J.

1. The facts of all the three petitions are
substantially the same. They involve common question
of law. They were heard together and it is proposed to
dispose of these petitions by this common judgment.

CWP No. 6789/2000 was treated as the leading
case and the counsel for the parties made their
submissions with reference to the record of this case.
It would be therefore appropriate to narrate the facts
of this petition for understanding the controversy and
appreciate the respective points of view of the
parties.

2. The petitioners in this petition feel
aggrieved by judgment dated 9th November, 2000 passed
by the learned Tribunal in OA No. 1407/2000. These
petitioners and private respondent, namely, respondent
No. 3 are all working as Scenographer Gr. C on long term
basis. The respondent No. 3 is senior to the
petitioners. Next promotion is to the post of
Stenographer Gr. 'B'&'A'. It may be mentioned that the
service of the petitioner and the respondent No. 3
comprises of Grades 'D', 'C', 'B' and 'A' in ascending
order of hierarchy. Later 'B'&'A' were merged and
termed 'merged A&B' Grades. Next promotion is to the
merged 'A&B'. It is governed by Central Secretariat
Stenographers Services(CSSS) Rules, 1969. As per these
Rules promotion to the grade of merged Gr. A&B in CSSS
is made after 8 years of completed services. Rule 2(C)
of CSSS Rules defines approved services in the following
manner:

"2(c)-"approved service" in relation to
any Grade means the period or periods of
service in that Grade rendered after
selection, according to prescribed
procedure for long term appointment to
the Grade, and includes any period or
periods during which an officer would
have held a duty post in that Grade but
for his being on leave or otherwise not
being available for holding such post."

3. While it is not in dispute that the
petitioners were junior to the respondent No. 3, it is
also not in dispute that in cadre of Grade C, the
petitioners completed 8 years of approved service in
the year 1995 as they were promoted as Gr. C on 30th
January, 1987 whereas the respondent No. 3 was promoted
on 30th June, 2000. Between the years 1995 and 2000
the petitioners were promoted to merged A&B Grade on
adhoc basis from time to time. The respondent No. 3
though senior was not given promotion even on adhoc
basis as he had not completed 8 years of approved
service at that time. Since the appointment was only
on adhoc basis and in the year 2000 the respondent No. 3
completed 8 years of approved services, while passing
orders of adhoc promotion, keeping in view the
seniority of the respondent No. 3 and the fact that he
had become eligible for promotion to merged A&B grade
on completion of 8 years of approved service, the
respondent No. 3 was given promotion on adhoc basis to
replace the petitioners. At this juncture, the
petitioners filed OA No. 1407/2000 with the following
prayers:

1. permit the applicants to file detailed
particulars to supplement this Original
Application, since the time to make the
OA available was less than 24 hours, and

2. Call for relevant record, and

3. Declare and order that applicants'
seniority as Steno Grade 'C' in Central
Secretariat Stenographers Service shall
count since the date of
appointment/promotion to that Grade on
long-term basis effective 30.1.1987,
since when they counted their 'Approved
Service' in that Grade for promotion to
higher Grades, and

4. Declare and order that the applicants'
promotion in the Grade of Stenos(merged
A&B) since 1995 shall be treated as
regular, instead of as 'adhoc' and

5. Further, declare and order that the
applicants shall not be disturbed from
their present posts of Stenos(merged A&B)
Grade, except by those who would/could
have been promoted to those posts on
regular/adhoc basis (when those
posts/vacancies first arose) in
preference to the applicants, after
satisfying the eligibility conditions on
those dates when the posts/vacancies
arose or the applicants were promoted
thereto, and

6. Grant any other relief.

4. Before the learned Tribunal, the case of the
petitioners was that there was practically no
distinction between the long term promotion/appointment
and the promotion on regular basis and indeed such a
distinction which was made earlier was done away with
by Notification dated 21st June, 1995 issued by the
official respondents. Therefore in 1995, when the
petitioners were promoted to merged A&B Gr.
Stenographers it was a regular promotion though
labelled as adhoc. They were now sought to be replaced
by persons who were in fact juniors to the petitioners
which was impermissible in law. It was argued, in the
alternative, that an adhoc employee cannot replace
another adhoc employee ant they could be replaced only
by regular employees.

5. The learned Tribunal dismissed the OA on two
counts. First, it held that the petitioners had no
cause of action to file the OA as they were neither
served with the notice of reversion nor an order of
reversion and in the absence of any such order of
reversion, no cause of action had arisen for filing the
OA. Secondly, the petitioners in any case had no merit
in their OA. It proceeded to decide the OA on merits
as the matter was argued at length. The learned
Tribunal found that the claim of the petitioners that
their appointment on long term basis should be counted
from 30th January, 1987 was not tenable inasmuch as
seniority list were to be published right from 1992
till it was updated in 2000 when their seniority was
fixed on the basis of their regular
promotion/appointment in Grade 'C'. They were placed
in the select list in 1989 and they never made any
grievance about their position in the seniority list
earlier and they were raising this objection only in
the OA. They also could not justify their claim that
they were senior to others who may replace them. The
learned Tribunal, therefore, came to the conclusion
that their claim was not only barred by limitation,
having accepted the position in their seniority list
published from 1992, it was also hit by the principle
of estoppel or acquiencence. The learned Tribunal also
rejected the contention of the petitioners to the
effect that adhoc appointee cannot be replaced by
another adhoc appointee, relying upon its earlier
judgment dated 3rd April, 2000 in earlier OA No. 2398/99
in the case of
Sh. N.K. Oudeja v. Union of India

wherein the learned Tribunal had held :

"It is no doubt, true that normally the
Department cannot replace him by another
adhoc employee. It must be noted that in
the present case the applicants was
promoted as Senior Assistants were not
found eligible for promotion on account
of their not fulfillling the prescribed
minimum length of approved service. As
it is now stated in the reply that the
seniors to the applicant were found
eligible in July, 1999 for promotion, the
applicant along with others had to be
necessarily reverted."

6. The learned Tribunal, therefore, observed that
since the respondent No. 3 had now completed 8 years of
service and was senior to the petitioners that he had
become entitled to be promoted on adhoc basis to the
merged A&B Gr. and the applicants were liable to be
reverted to give way to their seniors in service.

Challenging the aforesaid decision of the
learned Tribunal, Mr. G.K. Aggarwal learned counsel
appearing for the petitioners canvassed before us the
following propositions:

1. Even if the private respondents were
seniors to the petitioners, since the petitioners
completed the approved service earlier than those
respondents, they became eligible for promotion to
merged A&B Gr. of Stenographers earlier in point of
time, and therefore, in the eligibility list for
promotion they should be ranked senior to the private
respondents who acquired the eligibility conditions
later in point of time.

2. Unless an employee became eligible for
promotion he could not find place in the seniority list
inasmuch as as per Regulation 3 of the Central
Secretariat Service (Preparation of Common Seniority
List) Regulations, 1970 framed by the Central
Government under Rule 23 readwith Rule 2(h) of CSS
Rules, 1962 the common seniority list was to be
prepared on the basis of eligibility. This Regulation,
on which heavy reliance was placed, reads as under:

" 3 PREPARATION OF THE COMMON SENIORITY
LIST :

(1) A common seniority list of officers
of the Assistants' grade of all Cadres,
who have rendered not less than eight
years approved service in the grade shall
be prepared as on the 1st January of
every year.

For this purpose the Government shall
obtain from the Cadre authority the names
of all such officers of the Assistants'
grade included in their respective
Cadres.

(2) The names of the officers referred to
in Sub-regulation (1) shall be arranged
in a single list in the following order,
namely:-

(a) Officers appointed substantively to
the Assistants' grade with effect from
any date before the appointed day or on
the appointed day shall be arranged in
the order of seniority in that grade as
on the appointed day; and

(b) Other officers appointed
substantively to the Assistants' grade
shall be arranged in the following
manner, namely:-

Subject to their inter se seniority in
their respective Cadres being maintained,
the names of those officers appointed to
the grade as direct recruits on the basis
of competitive examination shall be
arranged according to their order of
merit in the competitive examination,
persons appointed from an earlier
examination being placed above those
appointed from later examination. In
this combined list of direct recruits,
the names of persons substantively
appointed to the grade from the select
lists for the grade shall be arranged by
placing each such officer immediately
above the seniormost direct recruit who
is junior to him in his Cadre.

(c) Select List officers not yet
confirmed in the Assistants' grade shall
be arranged according to the length of
their approved service in that grade."

7. It may be mentioned at this stage that the
petitioners in CWP No. 1234/2001 and CWP No. 326/2001 are
working as Assistants and the next promotion is to the
post of Section Officers for which again, 8 years
approved service as Assistants is required for
promotion to the post of Section Officer. The
petitioners are junior to private respondents as
Assistants but completed 8 years approved service as
Assistants before the private respondents, and
therefore, acquired the eligibility prior in point of
time. They were also promoted as Section Officers on
adhoc basis and sought to be replaced by the private
respondents when the private respondents acquired the
eligibility for the post of Section Officer on
completing the requisite approved service.

8. It is for this reason, we have mentioned that
the question of law which is to be decided is common in
all these petitions.

9. Before proceedings to consider the submissions
made by Mr. G.K. Aggarwal, it would be appropriate to
take stock of the arguments advanced by the learned
counsel for the respondents. Mr. A.K. Bhardwaj,
appearing for the official respondents defended the
impugned judgment by adopting the reasoning given by
the learned Tribunal in these judgments. His further
submission was that the petitioners were trying to
enlarge the scope of the writ petitions inasmuch as
prayer in the OAs would clearly suggest that the main
grievance of the petitioners was their replacement by
the private respondents who were seniors to the
petitioners and had become eligible for promotional
posts. He submitted that since the promotion was made
only on adhoc basis without following the rules and
when the senior persons were available they were to be
given the preference. His further submission was that
for this purpose junior persons like the petitioners
who were earlier given adhoc promotions could be
reverted to give way to the seniors who had become
eligible. He also submitted that even the learned
counsel for the petitioners conceded this position.
His submission was that the further arguments of the
petitioners' counsel about eligibility list,
acquiesence of eligibility criteria by the petitioners
earlier in point of time etc., were not permissible as
this was not the subject matter of the OA or the writ
petition and as the promotions were not going to be
made on regular basis such a question did not arise in
these petitions. He further submitted that regular
promotions are made on the basis of combined seniority
list by the UPSC. Since this process takes time, in
the meantime when post becomes available in a
particular department/Ministry adhoc promotion is given
to the senior most eligible person in that
department/Ministry without taking into consideration
the combined seniority list and such an adhoc
appointment given to the petitioners would not confer
any right upon the petitioners which was not given
after following the rules and therefore, it could not
be treated as promotion on regular basis but was only a
stop-gap arrangement.

10. Mr. B.T. Kaul, learned counsel appearing for the
private respondents while adopting the aforesaid
submissions of Mr. Bhardwaj, additionally argued that
the seniority list was first prepared in the year 1992.
In that seniority list, the name of the respondent No. 3
was shown at S.No. 96 whereas the petitioners were at
S.No. 107 and below. It is because of this reason that
in the seniority list published as on 1st January, 1999
the inter-se seniority of the respondent No. 3 vis-a-vis
the petitioners was maintained. The seniority list of
1999 simply reiterated the position which was
prevailing for number of years since 1992 and
therefore, the petitioners never challenged their
seniority vis-a-vis the respondent No. 3 earlier, and
therefore, such a settled position of seniority should
not be allowed to be unsettled after a long period.
He, thus, submitted that the learned Tribunal was right
in rejecting the OA of the petitioners on the ground of
estoppel and acquiescence as well.

11. After hearing the parties at length, we are
inclined to agree with the submissions of the learned
counsel for the respondents to the effect that what is
argued by the petitioners in this case was not the
scope of OA or the present writ petitions. The perusal
of the OA would clearly indicated that the petitioners
had rushed to the learned Tribunal after they had faced
the threat of reversion from the promoted posts to
which posts they were promoted on adhoc basis, to the
substantive post being held by them inasmuch as their
seniors had become eligible for promotion as per the
Rules and the official respondents had taken action to
give them the promotions on adhoc basis. The main
contention of the petitioners before the learned
Tribunal, as already noted above, was that their
appointment to the promoted post was on regular basis
and they could not be reverted and in the alternative,
they had submitted that they could be replaced only by
regular incumbents and not appointing other person on
adhoc basis. These contentions were rightly rejected
by the learned Tribunal. From the very nature of the
promotion orders, it becomes crystal clear that the
promotion was only on adhoc basis as a stop-gap
arrangement inasmuch as promotion on regular basis
could be by UPSC following the combined seniority list
of all the employees in their category in the CSS
instead the petitioners were promoted in their
department/particular Ministry without following the
Rules and keeping in view their seniority and
eligibility at the relevant time since other senior
persons, namely, the private respondents were not
eligible. Therefore, the petitioners were not given
the promotion on regular basis. They are now sought to
be replaced by those seniors who have in the meantime
become eligible. Since the promotion of the private
respondents is also on adhoc basis and private
respondents being senior and now eligible, have been
given preference for adhoc promotion. The learned
Tribunal was, therefore, right in rejecting this
contention of the petitioners as well. In fact
Mr. G.K. Aggarwal learned counsel for the petitioners at
the time of arguments, even conceded that the persons
senior to the petitioners could replace them who were
the juniors for the purpose of adhoc promotion. This
position having not been disputed, no further
discussion is required on this aspect.

12. However, the main grievance projected by the
learned counsel for the petitioners was that as the
petitioners, who may be junior to the private
respondents in a particular cadre, became eligible for
further promotion earlier than the private respondents,
they should be treated as senior in the eligibility
list for promotion to the higher post of merged 'A&B'
Gr. or SOs as the case may be. This issue was not
raised in OA. It does not appear to have been argued
as well as there is no discussion of this kind in the
impugned judgment. Only in OA out of which CWP
No. 1234/2001 has arisen, it appears, this contention
was raised which was rejected on the ground that the
question was of adhoc promotion and not regular
promotions against regular vacancies. This is what is
observed by the learned Tribunal in para 9 of judgment
dated 20th February, 2001 rendered in OA No. 1071/2000
out of which CWP No. 1234/2001 arises:

"The next ground taken is that as per DP
& T's OM dated 10.4.89, backlog of
vacancies must be filled yearwise and
only those who were eligible on dates of
occurrence of vacancies could be
considered. Therefore, as in 1997, so
also as of date, respondents 3 to 13 are
not eligible to be promoted in vacancies
occupied by respondents. This OM is
applicable in regard to regular
promotions made against regular vacancies
on the recommendations of a regularly
constituted DPC under the aegis of the
Cadre Controlling Authority. In the case
before us, the promotions are not regular
promotions, but adhoc promotions made as
a stop gap arrangement till regular
promotions are made by a regularly
constituted DPC under the aegis of the
Cadre Controlling Authority. Hence this
ground fails."

13. We fully agree with the reasoning of the
learned Tribunal. The promotions made as
stop-gap arrangement, as already pointed out above. As
and when promotions are made on regular basis and
backlog of vacancies is not filled year-wise and in
conformity with the DP&T's OM dated 10th April, 1989 it
would always be open for the petitioners to challenge
such an action of the respondents. The question as to
whether the eligibility list for the purpose of
promotion is to be prepared on the basis of the date of
completing the approved service is not required to be
gone into in these proceedings as this issue neither
ripened nor was the subject matter of OA. Therefore,
it is not necessary to express any opinion at this
stage on this issue. As and when the promotions are
made on regular basis and the petitioner feel
aggrieved against the methodology and procedure adopted
by the official respondents in ignoring their claims,
they would be at liberty to approach the learned
Tribunal by filing appropriate OA questioning such an
action of the respondents which would be dealt with by
the learned Tribunal on its own merit. This liberty is
granted. It is stated at the cost of repetition that
in the present case, cause of action related to the
threatened reversion of the petitioners from the
promoted posts to which they were promoted on adhoc
basis on their seniors becoming eligible for promotion
and when they were given promotion on adhoc basis.

14. The consequence of the aforesaid discussion is
that subject to grant of liberty as aforementioned,
these writ petitions fail and are hereby dismissed.

15. There shall, however, be no order as to costs.