OA 154/2008 OA filed on ------, my judgement on matter referred to 3 member bench
O R D E R (originally written by V. Ajay Kumar but dissented by me)
Hon'ble Smt. Leena Mehendale, Member (A) :
I am grateful to Hon'ble Member (J) for having sent the above order at draft stage for corrections, if any, and for my views. With due regards for the Hon'ble Member (J), I disagree with the reasonings, findings and conclusions arrived at by him. However, Hon'ble Member (J) has requested to pronounce a dissenting judgment as he too does not agree with my views. Hence, the following dissenting order.
I differ with him on the points made in his para Nos.14 to 17 and partly on the points made in paras 12 and 13. For the limited purpose of my conclusion, I frame the following issues:
1. Does the applicant have a right to be notionally treated as having been given regular position from the date of joining?
2. Whether the clarification issued by DOPT in OM No.35054/1/97-Estt.(D), dated 10.2.2000 is applicable in the light of the judgment in UOI & Ors. Vs. M. Mathivannan's case reported in AIR 2006 SC 2326.
3. Whether the applicant is entitled to counting his ad-hoc service for the purpose of ACP in the light of order dated 5.4.2007 passed by Madras Bench of this Tribunal in OA No.85/06 – Skariah Thomas Vs. Union of India & Ors. which has been upheld by the Hon'ble Madras High Court on 10.9.2008 dismissing the Writ Petition No. 5876 of 2008 filed by the respondent department and by the Hon'ble Supreme Court in their order dated 08.07.2009 passed in SLP No. SC 7223/2009.
My reasoning and answers are as under:
1.1 It is seen from the OA that the applicant has started his service as Shed Cleaner,(Group D post) w.e.f. 15.3.1973 on regular basis. He was appointed as Accounts Clerk
from 10.01.76 to 01.02.76 on adhoc basis and on 02.02.76 he was reverted to the post of Shed Cleaner. He was appointed to the post of Stockman as a direct recruit on adhoc basis from 14.2.1982 to 15.12.1987 (which is a Group 'C' post) and continued un-interruptedly till he was regularised with effect from 16.12.1987. All his service is at Central Cattle Breeding Farm, Hessarghatta, which is one of the branch offices working under the Directorate of Animal Husbandary, Ministry of Agriculture, New Delhi. The same Ministry has many more establishments for Animal Husbandary where they have the posts of Stockman and others. The applicant has produced at Annexure-A/7 a list of six employees working in Group 'D' posts who were appointed on adhoc basis as Shed cleaner, Ploughman, Milkman, etc., between the years 1982 and 1991, at Central Cattle Breeding Farm, Hessarghatta, Bangalore, and their services were regularised against their posts with effect from the same date on which they were given adhoc appointment. The applicant expects the same treatment in his case also without any discrimination. So he argues that atleast notionally he should be treated as on regular appointment from his first day as a Stockman and should be notionally held eligible for his 1st ACP after 12 years so that he can be granted the benefit of 2nd ACP on completion of 24 years as counted from his date of first appointment. I am inclined to agree with him, that the department cannot discriminate in giving treatment to two categories of employees.
1.2 Apart from the question of discrimination as above, the issue has also to be examined in the light of para 2 and 3 below with reference to the cases mentioned therein and the ratio that comes out of them. I shall discuss it later.
2.1 The benefit has been claimed under the ACP Scheme of DOPT No.35034/1/97-Estt.(D), dated 9.8.1999. Paras 3.1, 3.2 , clarification No.35034/1/97-Estt.(D)(Vol.IV), dated 10.2.2000 and clarification No. 35034/1/97-Estt.(D)(Vol.IV), dated 18.7.2001 are relevant here. As already pointed out by Hon'ble Member (J), para 3.1 requires that the service should be a regular service for becoming eligible for financial upgradation under the ACP Scheme. Para 3.2 states that the meaning of "regular service" will be the same as the meaning of "regular service" for the purpose of promotion". The clarification dated 10.2.2000 states that for those directly appointed on a post as a new appointee, the adhoc service will not count for ACP. The clarification No.35034/ 1/97-Estt.(D)(Vol.IV), dated 18.7.2001 makes a distinction between the two categories of people holding adhoc posts, viz., 1st appointment of an employee as a direct recruit on adhoc basis and the adhoc posting of an employee in the promotional grade. These two Clarifications purport to support para 3.2 by clarifying that whereas a person holding promotional grade on adhoc basis will be eligible for financial upgradation under the ACP Scheme from his date of adhoc appointment in promotional grade, a person whose first recruitment is on adhoc basis will not be so entitled.
2.2 A reference has been made to M. Mathivannan's case in which the decision of Madras Bench of this Tribunal has been upheld by the High Court of Madras as well as by the Supreme Court. The ACP Scheme then applicable was an older scheme framed with effect from 30.11.1983 which stipulated 1st Financial Upgradation after 16 years. In that the issue was that Shri. Mathivannan after his selection as Postal Assistant was placed un Reserve Training Pool (RTP) and then enrolled in the Army Postal Service and selected and started working as Warrant Officer with effect from 30.9.1983. The applicant was appointed as Postal Assistant on regular basis from 18.7.1989. It was therefore, the case of the department that he was entitled for ACP only after 16 years from 18.7.1989. On the other hand, the case of Shri Mathivannan was that since he started his service on 30.9.1983, he was entitled to ACP immediately after completing 16 years from that date, i.e., on 1.10.1999 even if his service became regular only in 1989. While upholding his plea, the Supreme Court has observed in para 11,13, 14 (part) and 15 (part) as under:-
ACP Scheme of 1983 has been extracted by the Apex Court as:-
"11.... "1] The Scheme will come into effect from 30.11.1983. All officials belonging to basic grades on Group 'C' and Group 'D' to which there is direct recruitment either from outside and/or by means of limited competitive examination from lower cadres, and who have completed 16 years of service in that grade, will be placed in the next higher grade. Officials belonging to operative cadres listed in the Annexure A-1 to the agreement will be covered under the scheme."
The Supreme Court has pointed in para 13 as under:
"13. Reading of the above two paragraphs makes it abundantly clear that so far as plaing of an officer in the 'next higher grade' is concerned, what is relevant and material is that such official belonging to basic grades in Group 'C' nd 'D' must have completed 'sixteen years of service in that Grade." The said paragraph, nowhere uses the connotation 'regular' service. Paragraph 2 which provides for Departmental Promotion Committee and consideration of cases of officials of 'promotion,' provides for sixteen years of 'regular' service. The Tribunal, therefore, rightly considered paragraph 1 as relevant and held that basic eligibility condition for being placed in the next higher grade is that the officer must have completed sixteen years of service in the basic grade in Group 'C' and Group 'D'."
Thus the ratio in these two paragraphs was that in the absence of the adjective "regular" in para 1 of the Scheme, it is not necessary to interpret the "regular service" for the purpose of ACP to be the same as regular service for the purpose of promotion. Merely a continuous un-interrupted service in the same grade should suffice for the purpose of financial upgradation.
2.3 In view of this categorical observation of the Apex Court, no distinction could be made between "Service" and "regular service" for the purpose of ACP Scheme of 1983. For the present case, however, the ACP Scheme is different. This has come into force with effect from 9.8.1999 and it specifically provides at para 3.2 of the Scheme that the "regular service" for the purpose of ACP Scheme shall be interpreted to mean the eligibility counted for regular promotion in terms of relevant recruitment/service rules.
2.4 Therefore, it remains to be examined whether the ratio drawn by the Supreme Court in para14 and 15 is applicable. It states:
The Court then stated:
"12. If that be the true purpose of a time-bound promotion which is meant (to) relieve frustration on account of stagnation, it cannot be said that the Government wanted to deprive the appellants who were brought into the P & T Department in public interest of the benefit of a higher grade. The frustration on account of stagnation is a common factor not only of those already in the P&T Department but also of those who are administratively transferred by Government from the Rehabilitation Department to the P & T Department. The Government, while imposing an eligibility condition of 16 years service in the grade for being entitled to time bound promotion, is not intending to benefit only one section of employees to the category and deny it to another section of employees in the same category. The common factor for all these employees is that they have remained to the same grade for 16 years without promotions. The said period is a term of eligibility for obtaining a financial benefit of a higher grade." (Emphasis supplied).
15. .... another decision of this Court in Union of India and another v. V.N. Bhat (2003) 8 SCC 714 in which the employee was initially appointed in the Ministry of Defence and voluntarily transferred himself to the office of the Post Master General. The question which came up for consideration was as to whether he would be entitled to get benefit of the scheme. Relying on Dwijen Chandra Sarkar, this Court held that the employee would be entitled to the benefit of the scheme on completion of sixteen years of service."
Thus, the said principle specifically considered the aspect of stagnation and a feeling of frustration when no time bound scale is granted.
In my opinion, even though the ACP Scheme applicable in the present case is different, the spirit of the scheme remains the same, and hence the ratio of para 14 and 15 supra is applicable.
3. The next issue is whether the applicant is entitled to counting his ad-hoc service for the purpose of ACP in the light of order dated 5.4.2007 passed by Madras Bench of this Tribunal in OA No.85/06, which was upheld by the Hon'ble Madras High Court in dismissing the Writ Petition No. 5876 of 2008 filed by the respondents department and was further upheld by the order dated 08.07.2009 of the Hon'ble Supreme Court in SLP No. SC 7223/2009.
3.1 The earlier ACP Scheme which was referred to in Mathivannan's case was introduced with effect from 30.11.1983. Now, a fresh Scheme as introduced by the DOPT vide notification No.35034/1/97-Estt.(D), is in vogue with effect from 9.8.1999. In Mathivannan's case, the Apex Court elaborated on the ACP Scheme which is restricted only to give financial benefit in the next higher grade and held that it is not the same as a promotion to the next higher grade. The promotion scheme requires a "regular service" as eligibility but not the ACP Scheme. Therefore, the service before regularisation of the employee would be counted for the purpose of ACP even though it would not be counted for promotion which requires a regular service.
3.2. In the new Scheme dated 9.8.1999, para 3.1 is more specific and it states:
"Under the ACP Scheme the Group 'C' and 'D' employees shall be entitled to 1st ACP and 2nd ACP on completion of 12 years and 24 years (subject to condition No.4 in Annexure-1) of regular service respectively. ...... Certain categories of employees such as casual employees (including those with temporay status), ad hoc and contract employees shall not qualify for benefits under the aforesaid Scheme.
Thus, in the new Scheme, the word "service" is qualified by the adjective "regular" even for the purpose of ACP which was not the case in the earlier scheme that was applicable in Mathivannan's case. This aspect of the new Scheme is further reiterated by the clarificatory instructions dated 10-2-2000. Therefore, it becomes necessary to refer to the judgment passed in OA No.85/2006 by the Madras Bench of this Tribunal and the Writ Petition No.5876/2008.
In the said OA No.85/2006, the applicant Shri Skariah Thomas was appointed as LDC (as civilian in lieu of Combatant) with effect from 28.5.1987 and absorbed in the regular establishment with effect from 28.5.1989. He was covered by the new scheme of 1999. He was granted the 1st Financial Upgradation with effect from 28-5-2001 on completion of 12 years of "regular service", excluding the earlier service under provision of the said Scheme dated 9.8.1999. It was stated by the respondent department that his earlier service could not be counted for ACP because the period of 2 years has not been regularised by the Government and cannot be counted as "regular service" for the purpose of promotion. As per the clarificatory note of DOPT dated 10.2.2000, in case of direct recruitment to a post, only "regular service" which counts for the purpose of regular promotion in terms of relevant recruitment/service rules, shall count for the purpose of upgradation under the ACP Scheme.
3.3.1 Pleading before the Madras Bench, the applicant brought to the notice of the Bench a Railway Board order dated 17.8.2004 showing that the entire temporary status service of substitutes followed by regularisation without break was taken into acount towards the minimum service of 12 years for the purpose of grant of ACP. Scheme.
3.3.2 While allowing the OA, the Madras Bench observed:
"7. ......As admitted by the respondents the applicant was appointed as LDC as civilian in lieu of Combatant w.e.f. 20.5.1987 and no subsequent appointment order has been issued again when the respondents claim that he was regularly absorbed w.e.f. 28.5.1989. Thus the very first appointment on 28.5.1987 is only on regular basis ............the service rendered by the applicant between 28.5.1987 and 28.5.1989 are in the same nature, as the service rendered by him after 28.5.1989 "
3.3.3 The Madras Bench has also referred to another case of Bombay Bench in OA No.788/2003 between M.R. Tiwari & Ors. vs. Union of India & Ors. where the appointments were made on the basis of Naval instructions 101/61. It is stated as under:-
"10. ...... The contention of the respondents is that the applicants were appointed as Senior Foremen in a temporary capacity. However, the fact is that they have continued uninterruptedly. The present case is fully covered by the earlier judgment given in the case of V.D. Mohite and All India Naval Clerk's Association. We are not inclined to agree with the respondents that the appointments cannot be treated as regular for giving benefit of ACP Scheme. In the All India Naval Clerk's Association's case it has been held thatACP Scheme should be given on the basis of their regularization from the date of their initial appointment (including the services rendered with casual basis). .......Thus the tribunal has given the benefit of counting the service from his (Tiwari) initial appointment as casual LDC with effect from 2.8.1975 for ACP benefit". (emphasis added)."
3.3.4 While appreciating that the ACP Scheme in M. Mathivannan's case was different, the Bench has oserved as under:
"9. Even though the applicant's reliance on this case does not meet with the facts of the instant matter where regular service is the stipulation for consideration for ACP Scheme, we agree that the applicnat's case is supported to the extent that Hon'ble Apex Court had considered the service rendered (by Mathivannan) while being in Reserve Training Pool (RTP) without being given regular appointment in Department of Posts, the service so rendered even as RTP could be counted for TBOP Scheme eligible after 16 years of service. Applying the ratio of the orders cited supra and also keeping in view the fact that the respondents have nowhere given any reason for excluding the service rendered by the applicant as LDC (as civilian in lieu of Combatant) and the applicant having claimed that the service he had rendered between 28.5.1987 and 28.5.1989 would count for all purposes including Pension, which has not been countered by the respondents. We are convinced that the respondents are taking an arbitrary stand in disqualifying the service rendered by the applicant as LDC (as civilian in lieu of Combatant)........."
3.4. When the matter was challenged in the Madras High Court. Their Lordships have examined the provisions of para 3.1 and 3.2 of the ACP Scheme of 1999 and have commented in paras 8, 9 and 12 as under:-
"8. Insofar as paragraph 3.1 (cited in the ACP supra) is concerned, it refers to certain categories of employees as being not eligible for the benefit of ACP Scheme. This would only mean that if a person continues on adhoc basis for the requisite period, yet he would not be entitled to the benefit, because his employment continues in an adhoc status.
Thus, their Lordships have hinted at the arbitrariness of the departments to keep employees on adhoc basis without any reason.
"9, That apart, the first respondent, even though selected through regular basis, had been initially appointed on adhoc basis, which has become regular, a reference to paragraph 3.2 (of the ACP) is of no help, as it does not specifically state that period of employment of an adhoc employee shall not be counted for regular promotion in terms of relevant Recruitment/Service Rules. In this connection, the learned counsel for the petitioner has placed before us the Rules relating to promotion as contained in Rules dated 26th September, 2000. Column 12 of the said Rules indicate that there can be recruitment to UDC by promotion from LDC with eight years regular services in the grade. But, such rule also does not specifically state that the period of service rendered as an adhoc employee, even though selected on a regular basis, is also to be excluded for the purpose of considering the question of eligibility for promotion....
"12. Even though such clarification issued by the Department prima facie supports the case of the present petition, we do not think that such clarification at all can be given effect to in view of the categorical decision of the Supreme Court, under similar circumstances, which has opined that the period of service rendered as adhoc service is also to be counted for the purpose of considering grant of benefit of ACP Scheme. In view of the said decision, we do not find any merit in this writ petition. Accordingly, the said writ petition is dismissed."
Thus, the High Court, even though specifically aware of the provision of Para 3.2. of the Scheme has dismissed the petition of the respondent department and upheld the decision of Madras Bench. They have emphasised the selection being on a regular basis even though the service was termed as adhoc.
4.1 On a limited point, I agree with the Hon'ble Member (J) that the facts in M. Mathivannan's case goes by the words "service" and "regular service". However, it is equally important that the Apex Court therein has held that since the appointment of Mr. Mathivannan as Postal Assistant has continued un-interruptedly, it should be counted towards entitlement for ACP. This aspect is as important as the distinction made by the Apex Court between "service" for the purpose of ACP and "regular service" for the purpose of promotion. In the Skariah Thomas's case, the High Court of Madras has held that despite para 3.1 and 3.2 of new ACP Scheme and despite the fact that he was appointed as LDC (as civilian in lieu of Combatant) with effect from 28.5.1987 and absorbed in the regular establishment with effect from 28.5.1989, in view of several cases discussed by the Madras Bench where an adhoc appointment was subsequently regularised without a break in service, the employee was entitled to benefit of ACP from the date of 1st appointment.
4.2 This brings us to the question as to why appointments are made on adhoc basis. It is well understood that if there is a regular vacancy available then appointment should also be made on a regular basis. Sometimes, the administrative departments are faced with a situation where a vacant post is available and eligible candidate is also available, but the vacancy suffers from some restrictions in appointment, such as, it being a vacancy for a reserved category post, or it being a vacancy against someone's leave period or it being a temporary requirement to handle urgent temporary matters (such as Election or Census management) when there is a sudden requirement of higher manpower for a short period. Only in such restricted situation, appointments are made on adhoc basis. In all other situations, the departments should normally make regular appointments, but they make an adhoc appointment just to be on a safer side to ensure that they have not over-looked some such contingencies as mentioned in the above examples. Therefore, when an initial adhoc appointment merges into a subsequent regular appointment as a continuous service without interruption, in my opinion, it must be treated as a regular service for the purpose of ACP. In the Skaraiah Thomas case, as also in the instant case, the applicant is continued on adhoc service uninterruptedly till the service merged into regular service on 16.12.1987.
For the above reasons, I allow the OA . The 1st respondent is directed to count the service of the applicant from 14.2.1982 to 15.12.1987 for the purpose of 2nd ACP which should be granted from 14.2.2006. It is, however, made clear that the relief will be restricted only for the purpose of 2nd ACP alone. The 1st ACP date will be counted only for notional purpose, and would not entitle him to any benefit as far as 1st ACP is concerned..
ORDER OF THE BENCH
In this case, the applicant has claimed for the benefit of 2nd ACP from the date of completing 24 years after his first appointment as a Stockman which was on adhoc basis on 14.2.1982, and regularised with effect from 16.12.1987.
Hon'ble Member (J) has examined it in the light of the ACP Scheme of 1999 notified by the DOPT No. 35034/1/97-Estt.(D), dated 9.8.1999 and has held that in view of paras 3.1, 3.2 and clarification dated 10.2.2000 , the benefit of ACP can be granted only for regular service but not for adhoc service.
Looking into the cited case of UOI & Ors. Vs. M. Mathivannan's case reported in AIR 2006 SC 2326, the Hon'ble Member (J) has held that the said case was covered under the old Scheme of 1983 where the clarifying word "regular" was not mentioned before the word "service" for the purpose of ACP and hence, the Hon'ble Apex Court gave decision in favour of the applicant who had put in 6 years of adhoc service before being regularised. The Hon'ble Member (J) has therefore held that the said case does not apply in present OA.
Thirdly, the Hon'ble Member (J) has also discussed the order passed by Madras Bench of this tribunal in OA No.85/2006 Skariah Thomas Vs. Union of India & Ors. which is covered under the new ACP scheme in which the applicant had rendered 2 years of adhoc service before being regularised. But, when he was denied the benefit of ACP Scheme by including the adhoc service, he approached the Madras Bench of the Tribunal, who allowed his case. The same judgment of the Madras Bench was also upheld by the Madras High Court and the Hon'ble Supreme Court. The Hon'ble Member (J) has held that the said Skariah Thomas judgment has followed the judgment of the Apex Court in the Mathivannan's case, and since the scheme applicable in the 2 cases are distinguishable by the omission and inclusion of the adjective "regular" before the word service, hence, there is no need to delve into the case of Skariah Thomas.
Hence, by distinguishing with the Mathivannan's case, the Hon'ble Member (J) has held that in the instant case, the benefit of 2nd ACP cannot be granted on completion 24 years of first appointment but will have to wait till the completion of 24 years from the date of regularisation.
Hon'ble Member (A) has held that the OA merits to be allowed. Even though the new ACP Scheme of 1999 is distinguishable from the old ACP Scheme of 1983 in the use of the adjective "regular" before the word service, it is important and pertinent to examine the interpretation and connotation of the term "regular service". The Hon'ble Member (A) has observed that while discussing the Mathivannan's case, the Hon'ble Apex Court has emphasised:- "12. If that be the true purpose of a time-bound promotion which is meant (to) relieve frustration on account of stagnation, it cannot be said that the Government wanted to deprive the appellants who were brought into the P&T Department in public interest of the benefit of a higher grade. The frustration on account of stagnation is a common factor ........... "
Thus, the said principle specifically considered the aspect of stagnation and a feeling of frustration when no time bound scale is granted. Hon'ble Member (A) has held that this principle is as important as the aspect of allowing benefit because of the absence of word regular in ACP Scheme.
The Hon'ble member (A) has also examined the Skariah Thomas's case. While deciding the issue therein, the Madras Bench of the Tribunal has also relied upon some other cases in addition to the Mathivannan's case such as the decision of Madras Bench in the Railway Board order dated 17.8.2004 showing that the entire temporary status service of substitutes followed by regularisation without break was taken into account towards the minimum service of 12 years for the purpose of grant of ACP Scheme. They have also referred to the Bombay Bench order in OA No.788/2003 between M.R. Tiwari & Ors. Vs. Union of India & Ors. as well as the order of the Bombay Bench in the V.D. Mohite and All India Naval Clerk's Association case in which the initial appointment as casual LDC was considered eligible for the ACP benefit despite the provision of para 3.1 of the ACP Scheme of 1999. The Hon'ble Member (A) has observed that while deciding the Skariah Thomas's case in favour of the applicant, the Madras Bench of the Tribunal and the Madras High Court have taken note of the distinction of the two ACP Schemes that arises from the omission or the use of the word "regular" before the word service. Inspite of this, they have held that where there is an adhoc appointment which continues un-interruptedly and merges into a regular service, the benefit of ACP must be granted with effect from the date of first appointment despite para 3.1 of the Scheme.
The Hon'ble Member (A) has also examined the principle behind the adhoc appointment and examined what are the situations in which the adhoc service should be treated as continuous regular service for the purpose of ACP.
The Hon'ble Member (A) has also relied on the fact that the same Government department while regularising the services of some other employees have regularised their adhoc service from the date of their first appointment. Hon'ble Member (A) has therefore, held that a discrimination in case of the applicant cannot be permitted.
The differing conclusions are on the points referred to above.
In exercise of the powers conferred by Section of the Adminstrative Tribunals Act, 1985, we refer the above issues of difference to the Hon'ble Chairman to hear the said issues either by himself or refer the same to such other Member/Members as may be decided by him u/s 26 of the Act.
We direct the Registrar to submit a copy of the issues along with our differing opinions to the Hon'ble Chairman for his orders u/s 26 of the Act.
Call on ...................... to await the orders of the Hon'ble Chairman.
(V. AJAY KUMAR) (LEENA MEHENDALE)
MEMBER (J) MEMBER (A)