OA No 154 of ?????
O R D
E R
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
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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),
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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
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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
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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:
14. .......
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.
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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
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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
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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:-
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"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
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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
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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..
(LEENA
MEHENDALE)
MEMBER (A)
psp.
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
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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
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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 principe 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.
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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)
psp.
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